Doctor pardoned by Trump seeks rare federal expungement

(CN) — A Mississippi physician who received a presidential pardon for a federal bribery conviction in the waning days of President Donald Trump’s first term was back in court Tuesday, aiming to convince the Fifth Circuit Court of Appeals that his conviction should also be expunged.

Dr. Robert Corkern was the administrator of a nonprofit health care center in rural Batesville when he was indicted in 2011 for bribing a county administrator in order to steer $400,000 in U.S. Department of Agriculture money to the facility. He pleaded guilty the following year.

After serving two years of home detention, three years of supervised release and otherwise restoring his practice as a physician, Corkern was among a number of people nationwide who were pardoned by President Donald Trump on his last day in office in 2021.

According to a related news release, the pardon was supported by Republican Senators Roger Wicker and Cindy Hyde-Smith as well as Republican Governor Phil Bryant. Trump noted the pardon “will help Dr. Corkern practice medicine in his community, which is in dire need of more doctors as it has struggled to keep up with demand for emergency services.”

But according to his attorney, Alfred Eugene “Rusty” Harlow, Corkern must continue to answer affirmatively when a legal document asks if he has ever been convicted of a felony. As a result, the Medicaid program will not allow him to receive or administer its federal funds.

During oral arguments Tuesday, Harlow outlined the constitutional authority of presidents to pardon and said while several appellate cases have addressed expungement, most have limited it. In April, U.S. District Court Judge Glen H. Davidson denied Corkern's motion to expunge in his criminal case, finding there was a narrow window for expungement under federal statutes and that expunging the record would give Corkern more relief than if he had been acquitted at trial.

“An expungement of the records in this case would eliminate all history of the charges and conviction, but if there had been an acquittal, there still would exist a record of the charges and proceedings,” wrote Davidson, a Ronald Reagan appointee. “Therefore, expungement of records would grant the defendant more relief than an acquittal, which is not permitted.”

Harlow argued his client had “exceptional circumstances” to meet the narrow standards for expungement because of its effect on his clients. Harlow emphasized that Corkern serves a largely impoverished community that relies upon “that particular type of health care.”

All three members of the panel suggested that in federal courts, expungements are exceedingly rare. 

U.S. Circuit Court Judge Jerry E. Smith, another Reagan appointee, said the court can't take judicial notice of any circumstances beyond the expungement’s effect on Corkern, but he encouraged Harlow to recommend how to tailor an order in his client’s favor.

Harlow in turn acknowledged the limits of Davidson’s order, but suggested relief could be as easy as an expungement of the conviction itself, rather than the entire record of the criminal case including Corkern’s arrest and indictment. 

“We would not be rewriting history,” Harlow said. “The fact is that he was indicted, he was charged, he was tried, he pleaded guilty and he was subsequently convicted. But the use of the pardon to expunge the simple conviction itself would allow him … the authority to answer that question as though he had not been convicted.”

U.S. Circuit Court Judge Carl E. Stewart, an appointee of Bill Clinton, said it sounded like Corkern was seeking a ruling that would insulate him from perjury. Harlow told the judge he was essentially correct. Stewart suggested Corkern had but a “needle hole” of an opportunity to make an effective argument for equitable relief. 

“We're trying to deal with the reality that the pardon opened that narrow door for the exceptional circumstances, and that this is an appropriate place not to rewrite that history, but to nip out that one place — the conviction — so my client would have that ability to aid [Medicaid patients],” Harlow said.

For the United States, Assistant U.S. Attorney Clayton Dabbs said Corkern pleaded guilty to bribing a county administrator and there is no statutory authority or constitutional basis for his expungement.

The third member of the panel, U.S. Circuit Judge Stuart K. Duncan, an appointee of Trump, asked Dabbs to elaborate on the benefits Corkern obtained from the pardon. Dabbs alluded to the surprise pardon of Hunter Biden Dec. 2 to suggest Corkern’s pardon was neither as broad nor as forgiving.

“The news is recently that apparently you can pardon for a period of time, and maybe prospective charges that haven't been filed,” Dabbs said. “But in this case, it was a pardon for a specific crime … it was specifically to his conviction that he pled guilty.”

Dabbs acknowledged the pardon restored Corkern’s right to vote and to carry a firearm, but said his problems with Medicaid reimbursement require an administrative remedy, not a judicial one. Dabbs also admitted the pardon is not reflected in the public judicial record. 

“His dispute now is really with Medicaid,” Dabbs said. “We have no control over Medicaid or the contractor that administers Medicaid.”

Regardless, Dabbs argued Corkern can’t demonstrate specific statutes or authority to grant the expungement or any affirmative violation of his constitutional rights.

On rebuttal, Harlow said Corkern has not purchased a firearm because he also has to admit he has been convicted of a felony on the application. Corkern also has repeatedly requested administrative relief from Medicaid based on the pardon, but it has not been granted. 

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