If Trump Pardons, It Could Be a Crime

(THIS ARTICLE IS COURTESY OF THE NEW YORK TIMES)

 

President Trump with Vice President Mike Pence, right, and Kris Kobach, left, at the White House on Wednesday. Credit Stephen Kushner
Crowley/The New York Times

President Trump and his lawyers have discussed whether he could pardon his relatives and aides to undercut, or even end, the special counsel’s investigation into charges that his campaign colluded with Russia to influence the 2016 election, The Washington Post reported on Thursday night.

There’s no question that with a stroke of his pen, Mr. Trump can shield his son Donald Trump Jr., his son-in-law, Jared Kushner, and other close associates from potential prosecution. Despite the uproar that would set off, we know by now that Mr. Trump loves the grand gesture, whatever the consequences. Besides, his family is at stake.

While his authority to pardon is crystal clear, a crucial, threatening, legal ambiguity should make him think twice about using this authority.

The Constitution gives the president “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The framers had sound reasons for bestowing that authority. As Alexander Hamilton explained, criminal law in the late 18th century was so severe that without the pardon power to soften it, “justice would wear a countenance too sanguinary and cruel.”

Consistent with the framers’ design, the Supreme Court has interpreted the president’s pardon power broadly. The president can pardon anyone for any crime at any time — even before a suspect has been charged. Congress cannot withdraw presidential pardons, and prosecutors and courts cannot ignore them.

But could a pardon be a criminal abuse of power? Some would argue that would contradict the founders’ vision of unlimited pardon authority. If a president sold pardons for cash, though, that would violate the federal bribery statute. And if a president can be prosecuted for exchanging pardons for bribes, then it follows that the broad and unreviewable nature of the pardon power does not shield the president from criminal liability for abusing it.

The Justice Department and the F.B.I. proceeded on this premise in 2001 when they opened an investigation into possible bribery charges arising out of President Bill Clinton’s pardon of the fugitive financier Marc Rich, whose former wife had donated $450,000 to Clinton’s presidential library. The investigation lasted until 2005, though no charges resulted.

Of course, bribery would not be the relevant crime. No one thinks that Donald Jr. or Jared Kushner — or anyone else involved in the Russia scandal — would pay the president for a pardon.

Yet federal obstruction statutessay that a person commits a crime when he “corruptly” impedes a court or agency proceeding. If it could be shown that President Trump pardoned his family members and close aides to cover up possible crimes, then that could be seen as acting “corruptly” and he could be charged with obstruction of justice. If, as some commentators believe, a sitting president cannot be indicted, Mr. Trump could still face prosecution after he leaves the White House.

There is strong support for the claim that the obstruction statutes apply to the president.

In 1974, when the House Judiciary Committee voted to impeach President Richard Nixon, members on both sides of the debate acknowledged that presidential obstruction of justice was not only impeachable but also criminal. A quarter century later, the Senate split 50-50 on whether to remove President Clinton from office on obstruction charges, but senators from both parties agreed that the obstruction laws applied to the president.

There is a broad consensus that a president exercises the pardon power properly — not “corruptly” — when he grants clemency based on considerations of mercy or the public welfare. President Gerald Ford invoked both of those values when he pardoned Nixon: He said that a prosecution of the former president would be too divisive and that Nixon had suffered enough. President George H.W. Bush gestured to both valueswhen he pardoned former Reagan administration officials for their involvement in the Iran-contra scandal.

In Trump’s case, the question would be whether he was acting out of the goodness of his heart, or covering up for his family, his associates and himself.

We expect — and hope — that prosecutors and courts would give wide latitude to a president in evaluating his pardon decisions. Only in the most egregious cases should a president face criminal liability for actions taken while in office.

While the law on this subject is unsettled, that in itself should be unsettling to the president as he considers whether to grant clemency. Not only might the pardons constitute obstruction, but the pardoned individuals might be compelled to testify against Mr. Trump without any recourse to the Fifth Amendment right against self-incrimination, since they would no longer have any concern about incriminating themselves.

He could ensure that his family members and aides get off scot-free for any crimes they may have committed during the 2016 campaign. But by extricating those individuals from a legal predicament, he might make his own predicament worse.

Is It Past Time To Arrest AG Jeff Sessions For Obstruction Of Justice And For Lying To Congress?

(THIS ARTICLE IS COURTESY OF THE WASHINGTON POST)

 

Sessions discussed Trump campaign-related matters with Russian ambassador, U.S. intelligence intercepts show

 Play Video 2:09
Sessions discussed Trump campaign matters with Russian ambassador, according to U.S. intercepts
The accounts from Russian Ambassador Sergey Kislyak to his superiors, intercepted by U.S. spy agencies, contradict public assertions by Attorney General Jeff Sessions. The Post’s Greg Miller explains. (Sarah Parnass/The Washington Post)
 July 21 at 6:51 PM
Russia’s ambassador to Washington told his superiors in Moscow that he discussed campaign-related matters, including policy issues important to Moscow, with Jeff Sessions during the 2016 presidential race, contrary to public assertions by the embattled attorney general, according to current and former U.S. officials.Ambassador Sergey Kislyak’s accounts of two conversations with Sessions — then a top foreign policy adviser to Republican candidate Donald Trump — were intercepted by U.S. spy agencies, which monitor the communications of senior Russian officials both in the United States and in Russia. Sessions initially failed to disclose his contacts with Kislyak and then said that the meetings were not about the Trump campaign.

One U.S. official said that Sessions — who testified that he has no recollection of an April encounter — has provided “misleading” statements that are “contradicted by other evidence.” A former official said that the intelligence indicates that Sessions and Kislyak had “substantive” discussions on matters including Trump’s positions on Russia-related issues and prospects for U.S.-Russia relations in a Trump administration.

Sessions has said repeatedly that he never discussed campaign-related issues with Russian officials and that it was only in his capacity as a U.S. senator that he met with Kislyak.

“I never had meetings with Russian operatives or Russian intermediaries about the Trump campaign,” Sessions said in March when he announced that he would recuse himself from matters relating to the FBI probe of Russian interference in the election and any connections to the Trump campaign.

Current and former U.S. officials said that assertion is at odds with Kislyak’s accounts of conversations during two encounters over the course of the campaign, one in April ahead of Trump’s first major foreign policy speech and another in July on the sidelines of the Republican National Convention.

The apparent discrepancy could pose new problems for Sessions at a time when his position in the administration appears increasingly tenuous.

Trump, in an interview this week, expressed frustration with Sessions’s recusing himself from the Russia probe and indicated that he regretted his decision to make the lawmaker from Alabama the nation’s top law enforcement officer. Trump also faulted Sessions as giving “bad answers” during his confirmation hearing about his Russian contacts during the campaign.

Officials emphasized that the information contradicting Sessions comes from U.S. intelligence on Kislyak’s communications with the Kremlin, and acknowledged that the Russian ambassador could have mischaracterized or exaggerated the nature of his interactions.

“Obviously I cannot comment on the reliability of what anonymous sources describe in a wholly uncorroborated intelligence intercept that the Washington Post has not seen and that has not been provided to me,” said Sarah Isgur Flores, a Justice Department spokeswoman in a statement. She reiterated that Sessions did not discuss interference in the election.

Russian and other foreign diplomats in Washington and elsewhere have been known, at times, to report false or misleading information to bolster their standing with their superiors or to confuse U.S. intelligence agencies.

But U.S. officials with regular access to Russian intelligence reports say Kislyak — whose tenure as ambassador to the United States ended recently — has a reputation for accurately relaying details about his interactions with officials in Washington.

Sessions removed himself from direct involvement in the Russia investigation after it was revealed in The Washington Post that he had met with Kislyak at least twice in 2016, contacts he failed to disclose during his confirmation hearing in January.

“I did not have communications with the Russians,” Sessions said when asked whether anyone affiliated with the Trump campaign had communicated with representatives of the Russian government.

He has since maintained that he misunderstood the scope of the question and that his meetings with Kislyak were strictly in his capacity as a U.S. senator. In a March appearance on Fox television, Sessions said, “I don’t recall any discussion of the campaign in any significant way.”

Sessions appeared to narrow that assertion further in extensive testimony before the Senate Intelligence Committee in June, saying that he “never met with or had any conversation with any Russians or foreign officials concerning any type of interference with any campaign or election in the United States.”

But when pressed for details, Sessions qualified many of his answers during that hearing by saying that he could “not recall” or did not have “any recollection.”

A former U.S. official who read the Kislyak reports said that the Russian ambassador reported speaking with Sessions about issues that were central to the campaign, including Trump’s positions on key policy matters of significance to Moscow.

Sessions had a third meeting with Kislyak in his Senate office in September. Officials declined to say whether U.S. intelligence agencies intercepted any Russian communications describing the third encounter.

As a result, the discrepancies center on two earlier Sessions-Kislyak conversations, including one that Sessions has acknowledged took place in July 2016 on the sidelines of the Republican National Convention.

By that point, Russian President Vladimir Putin had decided to embark on a secret campaign to help Trump win the White House by leaking damaging emails about his rival, Democrat Hillary Clinton, according to U.S. intelligence agencies.

Although it remains unclear how involved Kislyak was in the covert Russian campaign to aid Trump, his superiors in Moscow were eager for updates about the candidate’s positions, particularly regarding U.S. sanctions on Russia and long-standing disputes with the Obama administration over conflicts in Ukraine and Syria.

Kislyak also reported having a conversation with Sessions in April at the Mayflower Hotel in Washington, where then-candidate Trump delivered his first major foreign policy address, according to the officials familiar with intelligence on Kislyak.

Sessions has said he does not remember any encounter with Kislyak at that event. In his June testimony before the Senate Intelligence Committee, Sessions said, “I do not recall any conversations with any Russian official at the Mayflower Hotel.”

Later in that hearing, Sessions said that “it’s conceivable that that occurred. I just don’t remember it.”

Kislyak was also a key figure in the departure of former national security adviser Michael Flynn, who was forced to leave that job after The Post revealed that he had discussed U.S. sanctions against Russia with Kislyak even while telling others in the Trump administration that he had not done so.

In that case, however, Flynn’s phone conversations with Kislyak were intercepted by U.S. intelligence, providing irrefutable evidence. The intelligence on Sessions, by contrast, is based on Kislyak’s accounts and not corroborated by other sources.

Former FBI director James B. Comey fueled speculation about the possibility of a Sessions-Kislyak meeting at the Mayflower when he told the same Senate committee on June 8 that the bureau had information about Sessions that would have made it “problematic” for him to be involved in the Russia probe.

Comey would not provide details of what information the FBI had, except to say that he could only discuss it privately with the senators. Current and former officials said he appeared to be alluding to intelligence on Kislyak’s account of an encounter with Sessions at the Mayflower.

Senate Democrats later called on the FBI to investigate the event in April at the Mayflower hotel.

Sessions’s role in removing Comey as FBI director angered many at the bureau and set in motion events that led to the appointment of former FBI director Robert S. Mueller III as a special counsel overseeing the Russia probe.

Trump’s harsh words toward the attorney general fueled speculation this week that Sessions would be fired or would resign. So far, he has resisted resigning, saying that he intends to stay in the job “as long as that is appropriate.”

Matt Zapotosky and Julie Tate contributed to this report.

Trump lashes out at Russia probe; Pence hires a lawyer  

(THIS ARTICLE IS COURTESY OF THE WASHINGTON POST)

Trump lashes out at Russia probe; Pence hires a lawyer

June 15 at 9:39 PM
A heightened sense of unease gripped the White House on Thursday, as President Trump lashed out at reports that he’s under scrutiny over whether he obstructed justice, aides repeatedly deflected questions about the probe and Vice President Pence acknowledged hiring a private lawyer to handle fallout from investigations into Russian election meddling.Pence’s decision to hire Richard Cullen, a Richmond-based lawyer who previously served as a U.S. attorney in the Eastern District of Virginia, came less than a month after Trump hired his own private lawyer.

The hiring of Cullen, whom an aide said Pence was paying for himself, was made public a day after The Washington Post reported that special counsel Robert S. Mueller III is widening his investigation to examine whether the president attempted to obstruct justice.

A defiant Trump at multiple points Thursday expressed his frustration with reports about that development, tweeting that he is the subject of “the single greatest WITCH HUNT in American political history,” and one that he said is being led by “some very bad and conflicted people.”

Trump, who only a day earlier had called for a more civil tone in Washington after a shooting at a Republican congressional baseball practice in Alexandria, Va., fired off several more tweets in the afternoon voicing disbelief that he was under scrutiny while his “crooked” Democratic opponent in last year’s election, Hillary Clinton, escaped prosecution in relation to her use of a private email server while secretary of state.

Special counsel investigating Trump for possible obstruction of justice
The special counsel overseeing the investigation into Russia’s role in the 2016 election is interviewing senior intelligence officials to determine whether President Trump attempted to obstruct justice, officials said. (Patrick Martin,McKenna Ewen/The Washington Post)

Before the day ended, the White House was hit with the latest in a cascade of headlines relating to the Russian probe: a Post story reporting that Mueller is investigating the finances and business dealings of Jared Kushner, Trump’s son-law and adviser.

“The legal jeopardy increases by the day,” said one informal Trump adviser, who spoke on the condition of anonymity to discuss conversations with White House aides more freely. “If you’re a White House staffer, you’re trying to do your best to keep your head low and do your job.”

At the White House on Thursday, aides sought to portray a sense of normalcy, staging an elaborate event to promote a Trump job-training initiative, while simultaneously going into lockdown mode regarding Mueller’s probe.

At a previously scheduled off-camera briefing for reporters, Sarah Huckabee Sanders, the principal deputy White House press secretary, was peppered with more than a dozen questions about ongoing investigations over about 20 minutes.

In keeping with a new practice, she referred one question after another to Trump’s personal lawyer.

Sanders, for example, was asked whether Trump still felt “vindicated” by the extraordinary congressional testimony last week by James B. Comey, the FBI director whose firing by Trump has contributed to questions about whether the president obstructed justice.

“I believe so,” Sanders said, before referring reporters to Marc E. Kasowitz, Trump’s private attorney.

As Trump’s No. 2 and as head of the transition team, Pence has increasingly found himself drawn into the widening Russia investigation.

Pence — along with Attorney General Jeff Sessions, Kushner, Chief of Staff Reince Priebus and White House Counsel Donald McGahn — was one of the small group of senior advisers the president consulted as he mulled his decision to fire Comey, which is now a focus of Mueller’s investigation.

He also was entangled in the events leading up to the dismissal of Michael Flynn, Trump’s former national security adviser, who originally misled Pence about his contact with Russian officials — incorrect claims that Pence himself then repeated publicly.

The vice president was kept in the dark for nearly two weeks about Flynn’s misstatements, before learning the truth in a Post report. Trump ultimately fired Flynn for misleading the vice president.

There were also news reports that Flynn’s attorneys had alerted Trump’s transition team, which Pence led, that Flynn was under federal investigation for his secret ties to the Turkish government as a paid lobbyist — a claim the White House disputes. And aides to Pence, who was running the transition team, said the vice president was never informed of Flynn’s overseas work with Turkey, either.

On Capitol Hill on Thursday, Russian election meddling and related issues were a prominent part of the agenda.

Director of National Intelligence Daniel Coats spent more than three hours in a closed session with the Senate Intelligence Committee, just days after he refused to answer lawmakers’ questions in an open session about his conversations with Trump regarding the Russia investigation.

Several GOP lawmakers said they think Mueller should be able to do his job — including probing possible obstruction by Trump — but added that they were eager to put the probe behind them.

Sen. John Cornyn (Tex.), the second-ranking Senate Republican, said he retains confidence in Mueller and that he’s seen nothing so far that would amount to obstruction by Trump. His assessment, Cornyn said, includes the testimony last week by Comey, who said he presumed he was fired because of Trump’s concerns about the FBI’s handling of the Russian probe.

“I think based on what he said then, there doesn’t appear to be any there there,” Cornyn said. “Director Mueller’s got extensive staff and authorities to investigate further. But based on what we know now, I don’t see any basis.”

Sen. John Thune (R-S.D.) said he didn’t find news that Mueller is exploring obstruction of justice particularly surprising given it’s clear he is “going to look at everything.”

“There has been a lot of time spent on the collusion issue — 11 months by the FBI and six months by Congress — and both sides agree they haven’t found anything there,” Thune said. “I hope at some point all this stuff will lead to an ultimate conclusion, and we’ll put this to rest.”

In the meantime, the Republican National Committee appears to be girding for a fight.

“Talking points” sent Wednesday night to Trump allies provided a road map for trying to undercut the significance of the latest revelation related to possible obstruction of justice.

“This apparent pivot by the investigative team shows that they have struck out on trying to prove collusion and are now trying to switch to another baseless charge,” the document said.

The RNC also encouraged Trump allies to decry the “inexcusable, outrageous and illegal” leaks on which it said the story was based and to argue that there is a double standard at work.

The document said there was “an obvious case” of obstruction that was never investigated against former attorney general Loretta E. Lynch related to the FBI investigation of Clinton’s email server.

In his afternoon tweets, Trump picked up on that argument. In one tweet, the president wrote: “Crooked H destroyed phones w/ hammer, ‘bleached’ emails, & had husband meet w/AG days before she was cleared- & they talk about obstruction?”

“Why is that Hillary Clintons family and Dems dealings with Russia are not looked at, but my non-dealings are?” Trump said in another.

Trump restricted his musing Thursday on Mueller’s investigation to social media, passing on opportunities to talk about it in public.

The president did not respond to shouted questions about whether he believes he is under investigation as he departed an event Thursday morning designed to highlight his administration’s support of apprenticeship programs.

That event was part of a schedule that suggested no outward signs of concern by Trump about his latest troubles.

He was joined at the apprenticeship event by several governors, lawmakers and other dignitaries. Before turning to the subject at hand, Trump provided an update on the condition of Rep. Steve Scalise (R-La.), who was shot Wednesday during the attack on Republican lawmakers at an early-morning baseball practice.

Attempting to strike a unifying chord, Trump said: “Steve, in his own way, may have brought some unity to our long-divided country.”

Later in the afternoon, Trump and the first lady traveled to the Supreme Court for the investiture ceremony for Justice Neil M. Gorsuch.

Among the questions Sanders deflected Thursday was to whom exactly Trump was referring as “bad and conflicted people” in one of his early morning tweets.

“Again, I would refer you to the president’s outside counsel on all questions relating to the investigation,” Sanders said.

Mark Corallo, a spokesman for the outside counsel, did not respond to an email and phone call seeking comment on the questions Sanders referred to him.

Earlier this week, one of the president’s sons, Donald Trump Jr., highlighted on Twitter an op-ed in USA Today that argued that Mueller should recuse himself from the Russia investigation because he has a potential conflict of interest, given his longtime friendship with Comey, a crucial witness.

The piece, which Donald Trump Jr. retweeted, was written by William G. Otis, an adjunct law professor at Georgetown University who was a special counsel for President George H.W. Bush.

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Christopher Ruddy, a friend of Trump’s, made headlines this week when he said during a PBS interview that he believed Trump was considering firing Mueller.

The White House didn’t immediately deny that notion but made clear that Ruddy was not speaking for Trump. The following day, Sanders said Trump had no intention of trying to dislodge Mueller.

Sanders was asked again Thursday whether Trump still has confidence in Mueller.

“I believe so,” she said, later adding: “I haven’t had a specific conversation about that, but I think if he didn’t, he would probably have intentions to make a change, and he certainly doesn’t.

Ed O’Keefe, Karoun Demirjian and Abby Phillip contributed to this report.

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