Actually, says Giuliani, he was advised not to do it — but if he’s going to do it, he should at least wait until Mueller’s done so that he can’t be accused of trying to obstruct the investigation by dangling pardons at witnesses who might have information on him.
So naturally Giuliani’s leaking that fact. Because the point here is, of course, to dangle pardons at witnesses who might have information on him and who haven’t cooperated yet. It’s just that Rudy’s doing it on Trump’s behalf instead of Trump doing it himself.
As you read, think this through: How would Trump and Manafort benefit from a pardon?
President Trump asked his lawyers several weeks ago for their advice on the possibility of pardoning his former campaign chairman Paul Manafort, his lawyer said Thursday…
Trump’s lawyers counseled the president against the idea of pardoning anyone linked to the investigation into Russia’s interference in the 2016 election, according to Giuliani, saying Trump should at least wait until special counsel Robert S. Mueller III has concluded his probe. Giuliani said the president agreed and did not push the issue further…
“We sat him down and said you’re not considering these other pardons with anybody involved in the investigation. He said yes, absolutely I understand,” Giuliani said. “The real concern is whether Mueller would turn any pardon into an obstruction charge.”
Again, how would Trump and Manafort benefit from a pardon? Remember, the counts on which Manafort was just convicted in Virginia were tax fraud charges. As a Twitter pal notes, if Manafort defrauded the feds in his tax return, it’s an almost mortal lock that he defrauded his state government too. Mueller’s been working with state AGs for a full year now on his investigation, anticipating from the beginning that Trump might eventually spring his buddies from prison via a federal pardon. All of which is to say that even if Trump turns Manafort loose, there’s every reason to believe that one or more state AGs is ready to swoop in and indict Manafort for state tax fraud. And if there was enough evidence to get him pinched on the federal charges, odds are very good that there’s enough evidence to get him on the state charges.
Which means a pardon would effectively achieve … nothing. Manafort’s going to do hard time either way. Maybe not as hard at the state level as he’ll do in the federal system, but he’s not a young man. All time is hard time at his age. Meanwhile, by pardoning him Trump would have brought down a sh*tstorm of criticism on himself for letting a crony off the hook after a jury had already found him guilty of multiple counts. Under those circumstances, a pardon might not even have the obstruction effect Trump is hoping for on other potential witnesses. If some other Trump pal sees Manafort get hauled in immediately on state charges after being pardoned, he’ll conclude that there’s no escape from prison time one way or another. Better to make a deal with Mueller than count on Trump to somehow magically make things all better.
One more thing. Once Manafort is pardoned, he loses his Fifth Amendment privilege against self-incrimination. If he’s called as a witness in court or before Congress — like, say, a Democratic House — he couldn’t lawfully decline to answer. He’d be held in contempt and would go to jail anyway. Unless Trump wants to pardon him again.
There’s one possible ace in the hole POTUS may have, though. That’s state double-jeopardy laws:
On June 28, the U.S. Supreme Court agreed to hear a case challenging the legal principle that the federal government and those of the states represent “separate sovereigns,” a long-held doctrine that has provided a work-around for state and federal prosecutors faced with constitutional double jeopardy concerns…
New York, like many states, currently does not allow someone to be prosecuted on state charges after a federal pardon. New York’s loophole, according to the office of Attorney General Barbara Underwood, allows for a unique trick of the law: absent a specific exemption, if a defendant pleads guilty, or if a federal jury is sworn in at trial, state law bars charging that defendant over the exact same criminal acts.
New York is scrambling to amend its double-jeopardy law precisely so that potential defendants can still be tried in state court if Trump pardons them from the same federal offenses. But even if they fail to pass that amendment before Trump issues a pardon, I’m not sure it would save Manafort. Legal eagles are invited to correct me but the issue in the coming SCOTUS case about “separate sovereigns” has to do with prosecuting someone in both federal and state court for the same act. In that case, it was firearms possession: If you get caught bringing an unlicensed gun into a state and you’re convicted in federal court there, can the state charge you too? In Manafort’s tax case, though, we’re talking about two different tax returns and two completely different tax liabilities. The act he’d be pardoned for, defrauding the IRS with one set of numbers, simply isn’t the same as the act he’d be prosecuted for in New York court, defrauding the state revenue service with a separate set. In which case, why should Trump pardoning him on the former charge bar the state from trying him on the latter?
Which puts us back at square one. How does the benefit from a pardon outweigh the considerable potential political cost to the president? It doesn’t. But dangling the pardon, as Rudy’s doing here, might benefit him on balance if it encourages potential witnesses not to cooperate. Assuming Mueller doesn’t use it as evidence of intent to obstruct the Russiagate probe, that is.