Chauvin wanted to serve his time in federal custody. A Trump pardon would likely get him transferred to a state prison.
Ben Shapiro has proposed that President Trump pardon Derek Chauvin of his federal civil rights conviction in the George Floyd case.
If you followed our extensive coverage of Chauvin’s state trial in 2021, you will know I am sympathetic to Ben’s sentiments. I am not as impressed as some commentators by post-trial press coverage regarding the weakness of the case; to close watchers of the trial, the weaknesses were manifest as the testimony was presented. Nevertheless, even if you believe Chauvin was wrongly convicted, I don’t believe Ben’s proposal would help him — in fact, Chauvin might even oppose a pardon.
The problem: The president has no power to erase the state convictions, and Chauvin understandably wants to serve any prison time in a federal facility.
To recap, I don’t believe Chauvin got a fair trial; and, despite his convictions on murder charges, the evidence showed that the knee-on-the-neck hold — made so infamous by the video — did not cause Floyd’s death. The state’s case was saved by the expert testimony of an Irish pulmonologist, Dr. Martin J. Tobin, who conceded that the neck hold did not kill Floyd, but he authoritatively contended that the pressure from being pressed into the hard ground by Chauvin and two other cops caused him to suffocate.
Let’s put aside for a moment the intimidating influences to which the jurors were subjected, and the prejudicial effect of the depraved-indifference murder charge that should not have been in the case (my contentions about that were eventually sustained by Minnesota’s top appellate court, months after the trial and in another case — and therefore of no help to Chauvin). To my mind, the state did not prove its case. That is, prosecutors did not convincingly discount (a) the drugs in Floyd’s system, coupled with his significant cardiopulmonary problems, that could have caused his death; and (b) the degree to which the police had legitimate concerns that Floyd — a huge man who had violently attacked them — might have revived and continued fighting if not restrained.
As I observed at the time, I cannot say that a rational juror in a fair trial could not conceivably have found Chauvin guilty of unintentional homicide (given the evidence that police continued to restrain Floyd well after his pulse stopped). But in light of the beyond-a-reasonable-doubt standard of proof, I would have acquitted him of murder charges, and the trial was not fair in any event.
I doubt any commentator was more critical than I was of the Biden Justice Department’s civil rights prosecution of Chauvin and the other three former Minneapolis cops implicated in Floyd’s death. But let’s remember: Though he went to trial in the state case, Chauvin voluntarily pled guilty to the federal charge. In fact, he pled guilty not only to a civil rights charge pertaining to Floyd’s death; he separately copped to a civil rights allegation of using excessive force against a 14-year-old boy in 2017.
Why did he do that? As I explained at the time, the plea didn’t cost him anything, but it ensured that he would serve his time in a federal prison, where he hoped and expected he’d be safer than he would in a state prison in Minnesota.
The federal guilty plea didn’t cost him anything because, to get it — all so Biden and his Justice Department could claim credit for helping nail the Floyd cops, a cause célèbre on the left — federal prosecutors agreed to cap Chauvin’s sentence at 25 years and run it concurrently with the sentence of 22 and a half years that had already been imposed on the state murder convictions. What Chauvin wanted was to do his time in federal custody. The federal guilty plea ensured that without requiring him to do materially more time.
State prisons, populated by many inmates associated with violent gangs, can be extremely perilous for former police officers who worked in the state. To be sure, any prison is apt to be tough for former cops — criminals are vengeful toward convicted cops who wielded their state power against those criminals on the outside and are now at their mercy. Even in what was assumed to be a comparatively safer detention facility for him than a Minnesota penitentiary — specifically, the federal correctional facility in Tucson, Ariz. — Chauvin was viciously stabbed 22 times and nearly killed by a former gang leader in November 2023. But he’s still better off in federal custody. As a former Minneapolis cop, no one was more aware of that than he, which is why he was willing to plead guilty to dubious federal charges toward that end.
President Trump would have power to pardon Chauvin only from the federal charges, not the state convictions and resulting sentence. And there is no real hope of reversing the state convictions. They are now final: Chauvin lost his state appeals, and the U.S. Supreme Court declined to review the case back in November 2023.
If there were no longer a federal case, there would be no reason for Chauvin to be in federal custody. It is possible that the federal government could agree to let Chauvin continue serving his state time in federal custody. But the state and the feds would have to concur on that, and Chauvin would not have much assurance that the state would hold to such an agreement — if it were willing to enter it in the first place.
I am not addressing the politics of such a pardon, which would be as controversial as any pardon in modern history. I’m strictly considering the law. I do not think Chauvin would want a federal pardon unless it would be coordinated with a state pardon, which I don’t see ever happening. A pardon might make sense if Chauvin were given an ironclad guarantee that he could remain in federal custody despite the extinguishment of the federal convictions and sentence. But again, I think that’s iffy, at best.