After Mueller Time, should it become Pardon Time?

When it’s time to relax,  one power stands clear … Robert Mueller has concluded his investigation and found no collusion with Russia, but there is still a significant amount of collateral damage from the probe. Paul Manafort and Rick Gates got convicted of crimes that took place well before the campaign, but others have fallen into process crimes from the probe itself.


Donald Trump could clean up that damage by issuing pardons for associates like Michael Flynn, the Washington Post points out. Of course, he could do himself a lot of damage by issuing those pardons, too:

Now that special counsel Robert S. Mueller III has concluded his investigation, a president who has used his pardon power in un­or­tho­dox ways faces the question of whether to extend it to former aides and advisers charged with crimes in Mueller’s probe. …

However, Trump has reveled in his unlimited constitutional ability to issue pardons, asking aides to draw up lists of celebrities and other well-known personalities who might be deserving of presidential mercy.

“Reveled”? Er, sure. Trump has issued a grand total of seven pardons in over two years of his presidency, along with two other commutations, so his revelries have been oddly limited. Trump hasn’t issued any pardons or clemency actions in nine months. Only one of those he has issued would have been a true “celebrity” pardon, and that celebrity had been dead for decades: former boxing champ Jack Johnson. Trump has also pardoned two political allies with some celebrity status, Dinesh D’Souza and Joe Arpaio, clearly in both cases because of their support for Trump rather than for their celebrity status.

If anything, Trump’s been rather parsimonious with his plenary power of clemency. So was Barack Obama in his first term, with only 21 pardons in his first four years in office, and none in his first year at all. That reflects the risks associated with pardons and their potential for political backfire. Clemency actions might later look either corrupt (as in Bill Clinton’s pardon of Marc Rich) or reckless, such as Mike Huckabee’s gubernatorial pardon of a felon who went on to murder. Presidents have become necessarily risk-averse to pardons and commutations, at least until they’re sure they have no more elections to contest.


Rudy Giuliani’s convinced that Trump won’t take the risk with pre-emptive pardons, even with Mueller closing up shop:

On Monday, Trump attorney Rudolph W. Giuliani said he did not believe the president was considering pardoning anyone in connection with the investigation.

“No, I don’t think he should, and he’s not,” he said. “I don’t think he is, at least.”

Senate Judiciary chair Lindsey Graham, who wants to begin investigating the FBI and the Department of Justice over the counterintelligence probe that created Russiagate, advised Trump to cool his pardon jets too. “If President Trump pardoned anybody in his orbit,” Graham told reporters yesterday, “it would not play well.”

Democrats warned that it would be “outrageous,” although that was before Mueller’s conclusions were published:

“Pardoning someone who did or didn’t testify in a case directly related to the president would be absolutely outrageous,” said Rep. Pramila Jayapal (D-Wash.) in a phone interview prior to the release of Mueller’s principal findings. …

“It is a concern of mine,” said Sen. Chris Coons (D-Del.) on Saturday, a day before Attorney General William Barr released a four-page analysis of Mueller’s findings. “I am concerned that the president not misuse his pardon power in a way that will be seen as overtly partisan and to challenge or push back on the whole Mueller investigation.”

The Mueller report probably doesn’t substantially change those calculations, not even for Michael Flynn, whose case might be the most sympathetic for a pardon. Flynn failed to disclose his work for Turkey while he worked on Trump’s campaign, a FARA violation of the kind almost never prosecuted before Mueller began using the law as leverage in this probe. He pled guilty to lying to FBI agents, but that conclusion has been controversial from the beginning since the original investigators didn’t conclude he was lying.


ABC News reports that Flynn’s legal expenses have already hit $5 million and he has yet to be sentenced. That has his allies petitioning the White House for an intervention:

Lt. Gen. Michael Flynn, the Donald Trump adviser who admitted to lying to FBI agents about his Russia contacts and lobbying activities for Turkey, has shouldered some $5 million in legal bills, a knowledgeable source close to the retired Army officer told ABC News Monday.

The hefty legal bill has been amassed despite his December 2017 guilty plea — the first in the Russia investigation — and providing what special counsel Robert Mueller described as “substantial assistance” in numerous investigations. …

Many prominent supporters in the “Make America Great Again” political movement, started by Trump, have stepped up calls for Flynn’s “immediate” pardon by the president.

“@realDonaldTrump can’t pardon him soon enough,” tweeted Judicial Watch President Tom Fitton, who is close to Trump.

Flynn’s still cooperating with investigators, even though Mueller’s team declared their satisfaction with his help in a previous sentencing hearing. When the judge warned that Flynn should seek a delay to atone further, both sides agreed to it, but that sentencing will take place soon.

Trump likely won’t take any significant risks with pardons until after the election in 2020. He can’t afford to tarnish his big win on Mueller with anything that distracts from it, and pardons for Mueller-indicted figures would become a huge opening for Democrats to twist the narrative back around. Whether he wins or loses, he will have at least a couple of months to issue pardons.


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