A recurring question in Russiagate: Can the president obstruct justice by using a power that he’s legally entitled to use? The root of Mueller’s obstruction case (as well as the root of Mueller’s position as special counsel) was Trump’s decision to fire James Comey, which, by his own admission, was driven by his annoyance with “this Russia thing.” But the executive is empowered by law to fire the director of the FBI. And the probe has continued for nearly a year since then, with Trump’s grudging acquiescence, under the auspices of Mueller’s own office. Is it “obstruction” if the president was acting lawfully and the investigation wasn’t actually, you know, obstructed?
Now comes a follow-up question. Is it obstruction if the president dangles the possibility of a pardon to targets of an investigation in order to guarantee their silence? The NYT doesn’t know for sure that that’s why former Trump attorney John Dowd approached lawyers for Mike Flynn and Paul Manafort last year, but it would make sense. Why else would you want to signal to a criminal defendant who’s being pressured to tell the prosecutor everything he knows about Trump and his campaign that he might be let off the hook? The pardon power is plenary, though, on the theory that the people themselves will check the president on it by ousting him from office in the next election if he abuses it. There’s little question that Trump could lawfully pardon Flynn and Mueller out of the goodness of his heart. But could he pardon them as a quid pro quo for their refusal to testify against him?
And if he can’t and Mueller were to indict him for obstruction over that, could he … pardon himself on that obstruction charge? My head hurts.
Mr. Dowd has said privately that he did not know why Mr. Flynn had accepted a plea, according to one of the people. He said he had told [Flynn lawyer Robert] Kelner that the president had long believed that the case against Mr. Flynn was flimsy and was prepared to pardon him, the person said.
The pardon discussion with Mr. Manafort’s attorney, Reginald J. Brown, came before his client was indicted in October on charges of money laundering and other financial crimes. Mr. Manafort, the former chairman of Mr. Trump’s presidential campaign, has pleaded not guilty and has told others he is not interested in a pardon because he believes he has done nothing wrong and the government overstepped its authority. Mr. Brown is no longer his lawyer.
It is unclear whether Mr. Dowd, who resigned last week as the head of the president’s legal team, discussed the pardons with Mr. Trump before bringing them up with the other lawyers.
Dowd and other Trump lawyers denied to the Times that the topic of pardons had ever been broached with Flynn, Manafort, or their counsel. Even if Dowd did broach it with them, to implicate Trump in obstruction you’d need to prove that he was ordered by Trump make the approach about a pardon instead of just freelancing it himself in the course of conversations with Flynn’s and Manafort’s lawyers. Dowd has been slippery in the recent past about when he was and wasn’t speaking on the president’s behalf, and he’s bound by client confidentiality not to reveal whether Trump put him up to it. You’d need to put him on the stand *and* overcome attorney/client privilege to get that information.
Unless, of course, Trump volunteers it himself. You never know what he might cough up in idle conversation (or not so idle conversation, i.e. if he really is dopey enough to agree to an interview with Mueller). The Times notes that he’s already raised the prospect publicly of a pardon for Flynn, saying in December at a news conference, “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens.” Note the “yet.” And then there’s this:
During interviews with Mr. Mueller’s investigators in recent months, current and former administration officials have recounted conversations they had with the president about potential pardons for former aides under investigation by the special counsel, according to two people briefed on the interviews.
If POTUS had approached Flynn and Manafort to dangle pardons at them and had been foolish enough to admit that in front of people who aren’t bound by some sort of privilege requiring confidentiality…
Nah, he wouldn’t be that reckless. Would he?
As for why the alleged pardon chitchat didn’t sway Flynn from pleading, Renato Mariotti has theories:
4/ Three potential explanations come to mind. First, perhaps the plea deal was so good that it was worth taking over an uncertain pardon. Second, Flynn was concerned about a state prosecution, which Trump couldn't pardon. Third, Flynn was concerned about his son's liability.
— Renato Mariotti (@renato_mariotti) March 28, 2018
Right. The pardon is limited to federal criminal liability and it might never come, and even if it did a hostile appellate court might decide that there’s an unwritten exception to the president’s pardon power that bars him from using it to purchase the silence of potential witnesses against him. (“No man is above the law,” etc.) Flynn got a sweetheart deal from Mueller. Why not take it and avoid any pardon complications? As for Manafort, Mariotti has a solid theory about that too: Maybe Manafort *is* expecting a pardon. He’s fighting an awful lot of charges in court right now despite the fact that his deputy, Rick Gates, has flipped to Team Mueller. And he’s been aggressive in challenging Mueller’s authority to prosecute him. He could be waiting for a pardon, not necessarily because a deal was reached with Trump or Dowd but because he figures it’ll impress Trump to see his former campaign manager fighting Mueller tooth and nail and that POTUS will reward him for it.
The problem for Manafort is that, although he was high up in the campaign for a few months, he’s never been a member of Trump’s inner circle. If he ends up being convicted on a variety of charges and faces decades in prison, is Trump going to invite a major political headache for himself by handing Manafort a “get out of jail free” card? He’d hand one to a member of the family for sure. He’d probably hand one to a loyal campaign surrogate like Flynn. But the hired gun Manafort, who only worked for him for a few months? Meh.
One last point. This curious statement appeared yesterday afternoon:
Joint statement from Coons and Tillis, seemingly out of nowhere: “Robert Mueller should be able to conduct his investigation without interference.” pic.twitter.com/eik6CzeE5M
— Kyle Griffin (@kylegriffin1) March 27, 2018
Out of the blue, two senators who co-wrote a bill last fall that would protect Mueller from being fired by Trump without cause were warning POTUS publicly not to interfere with the investigation. Why would they do that? Was there a rumor on the Hill, perhaps, that Trump was about to do something rash on Russiagate which they were trying to preempt by publicly warning him not to? Bill Kristol commented:
You don’t suppose Coons and Tillis have heard something’s up, do you? During a congressional recess right before Easter/Passover weekend, with everyone dispersed and disorganized, wouldn’t be a ridiculous time to fire Sessions or Rosenstein or Mueller or pardon a bunch of people. https://t.co/IOKK2fzPxN
— Bill Kristol (@BillKristol) March 27, 2018
That was yesterday. Now here we are with the Times running its own out-of-the-blue story about pardon discussions from last year. Is Trump about to surprise us — but not the Times or Congress — with pardon announcements?
Exit question: It sure is interesting that this juicy scoop about John Dowd is coming out only days after Dowd left Trump’s legal team, isn’t it?