Where would he get the idea that POTUS would consider pardoning someone involved in Russiagate? Oh:
This is newsy, although obviously not because people didn’t already have this possibility in mind. The newsy part is that we’ve reached the stage where Trump’s legal team is willing to discuss it openly. Remember that NYT story from a few months ago claiming that then-counsel John Dowd dangled pardons in discussions with lawyers for Paul Manafort and Mike Flynn? Dowd denied it afterward, knowing that any suggestion of a pardon for defendants in an ongoing investigation might affect their willingness to cooperate with the prosecutor, which, some would argue, would amount to obstruction of justice by the lawyer who floated the idea.
Rudy, however, was brought in to help spearhead Trump’s “witch hunt” messaging offensive. If the investigation is a hopelessly tainted witch hunt then chattering about pardons is less problematic. You can’t obstruct justice when there’s no justice to be had, right? Now that Trump has reached the “war” stage with Mueller, it’s inevitable that his generals would start warning about what’s in his arsenal:
“When the whole thing is over, things might get cleaned up with some presidential pardons,” the former New York mayor told the Daily News…
Giuliani, who worked as a federal prosecutor for nearly a decade, claimed he had seen no evidence to warrant Manafort being sent to jail.
“I don’t understand the justification for putting him in jail,” Giuliani, 74, said. “You put a guy in jail if he’s trying to kill witnesses, not just talking to witnesses.”
Rudy Giuliani, a former U.S. Attorney, doesn’t understand why a guy’s bail might be revoked after being accused by associates of witness tampering. I think he believes a lot of his own BS but even he doesn’t believe that.
For some reason his interviews lately have gotten more shrill and weirdly shoot-from-the-hip and I can’t tell if it’s deliberate or just him reacting badly to strain. For instance, here’s what he told Hannity last night:
Rosenstein and Jeff Sessions have a chance to redeem themselves and that chance comes about tomorrow. It doesn’t go beyond tomorrow. Tomorrow, Mueller should be suspended and honest people should be brought in, impartial people to investigate these people like Peter Strzok. Strzok should be in jail by the end of next week.
As sleazy as Strzok’s texts are and as much as he deserves to be fired, I don’t know what crime Giuliani thinks he’s guilty of based on what we know right now. And I don’t understand what his “doesn’t go beyond tomorrow” thing is about. It sounds like a threat, but unless Trump is prepared to fire Sessions and Rosenstein tonight, it’s a totally empty one and will be proved as such. He’s swinging wildly at his opponents and not connecting. Today in a different interview he called Joe Biden “a mentally deficient idiot,” which … does often seem true, but it’s another wild swing at a guy who’s not even involved in Rudy’s current matter of concern. (Then again, he and Rudy have history.) The personal digs at Stormy Daniels for being too unattractive for Trump were also weirdly harsh and gratuitous. Is he just tired? Letting it all hang out to impress Trump that he’s a “street fighter” or whatever?
I linked this Just Defense post from March earlier but it’s worth reading it now if you haven’t before as the pardon talk heats up. Practically no one disputes that Trump can pardon everyone associated with Russiagate if he likes. Manafort, Flynn, Papadopoulos, family members if they get indicted — all can walk free if POTUS says so. Whether the act of pardoning would amount to obstruction of justice in certain circumstances, though, is a more complicated question. If Trump agreed to pardon someone in exchange for a bribe, would that constitute a crime? If he pardoned Michael Cohen and then went on TV and admitted, “Yeah, I did it so that he wouldn’t cooperate with the U.S. Attorney,” is that obstruction? Interesting questions. But there’s a separate question raised in the Just Defense post, written about Dowd’s alleged offer to Manafort and Flynn, that Rudy might want to ruminate on. Can the act of dangling a pardon during a pending investigation amount to obstruction of justice?
First, this kind of dangle is not a public act. Therefore, as long as it remained secret, it could be done without incurring any of the political downstream consequences that come with actually pardoning someone. It hides the President from scrutiny rather than exposes him to it as a potential check on the use of the power. Second, the objective of the dangle appears to have been to foreclose the prospect of Flynn and Manfort’s cooperating or testifying. Once again, this is the opposite effect of an actual exercise of the pardon. The message of the dangle was sufficiently clear: hang in there and keep fighting (do not cut a deal with the special counsel) because you will be pardoned before you spend a day in jail. The President and his lawyer’s hope would have been that with the threat of jail eliminated, neither former aid would feel compelled to plead guilty and cooperate with Mueller to reduce his sentence. But, since they were not actually pardoned or not yet anyway, they still kept their Fifth Amendment privileges, and so Mueller could not simply demand they testify before the Grand Jury. In this way, the dangle could operate to stop any cooperation from Flynn and Manafort, who could then be pardoned later if and when they were indicted or even after their cases went through pretrial, trial and appeal. Indeed, you also have to put yourself back at the time these events all took place: before Manafort was indicted and Flynn pleaded guilty. That’s when the dangle could work its magic.
Giuliani’s comments to the Daily News are somewhere in between. They’re not private, as Dowd’s pardon discussions reportedly were; airing them publicly ensures presidential accountability. But the effect, whether intended or not, is similar. If the president’s lawyer is now speaking openly about “cleaning up” Russiagate with pardons, any defendant who’s considering testifying before the grand jury might decide against doing so, expecting that he’ll be rewarded for his silence eventually with clemency. Whether Rudy’s pardon talk was intended to limit cooperation by prospective witnesses or not, it may well have that effect. (And maybe it was intentional. Remember, there’s a very important person close to Trump who’s weighing whether to play ball with the DOJ at this very moment.) Is that obstruction? If it was intentional, is that obstruction? If associates of President Hillary were being investigated by the DOJ and Cheryl Mills mentioned to a newspaper that they might find themselves being “cleaned up” with pardons in the end, is that obstruction?
All of this is interesting and fun fodder for law-school exams but may not matter much on the ground. Mueller has been hedging against the possibility of Trump pardoning out his buddies at least for the past 10 months, working with state attorneys general in key states related to Russiagate. At this point, after Trump’s recent round of clemency, Mueller probably expects Manafort and Flynn to be set free and is preparing accordingly to hand over the evidence he’s amassed to state prosecutors. Trump might sign the pardons, triggering a political earthquake, only to find all of his associates in the dock in New York courts anyway. It might even be the likeliest outcome at this point, assuming double-jeopardy laws don’t get in the way.