Trump must resist temptation to pardon Manafort for real crimes

(THIS ARTICLE IS COURTESY OF ‘THE HILL’ NEWSPAPER AND THE WEBSITE OF JONATHAN TURLEY)

 

Trump must resist temptation to pardon Manafort for real crimes

Trump must resist temptation to pardon Manafort for real crimes
© Greg Nash

After a few weeks on the job, President Trump’s attorney Rudy Giuliani is beginning to sound like the Vince Shlomi of constitutional law. Shlomi became a household name for his mesmerizing low-grade “ShamWow” commercials promising a towel that “holds 20 times its weight” and “doesn’t drip, doesn’t make a mess.” He would ask, “Why do you want to work twice as hard?” when you could just pull out a ShamWow.

Asked about the jailing of former Trump campaign chairman Paul Manafort for witness tampering, Giuliani declared, “Things might get cleaned up with some presidential pardons.” The only thing missing to complete the Shlomi comparison was a picture of a pardon soaking up a bowlful of special counsel Robert Mueller’s indictments.

The pardon power is not a ShamWow for presidents to clean up scandals. True, the Constitution gives a president total discretion in the granting of pardons and commutations. However, it was not designed, and should not be used, to protect figures like Manafort or Trump personal attorney Michael Cohen. Shortly after Manafort was thrown into jail pending trial, Trump lamented, “Wow, what a tough sentence for Paul Manafort, who has represented Ronald Reagan, Bob Dole and many other top political people and campaigns. Didn’t know Manafort was the head of the mob.”In waving around the pardon power, Giuliani essentially offered a Shlomiesque, “Not wow, Mr. President, ShamWow!” The problem is that Manafort would be the least compelling pardon recipient since President Clinton pardoned his own half brother and Marc Rich, a fugitive Democratic donor. It is true that Manafort is not “the head of the mob,” but he is facing compelling allegations of an array of criminal acts running the gamut of the criminal code. Indeed, the list of indictments would have made mob boss John Gotti blush.

For months, I have written about Manafort’s longstanding reputation for being reckless. It was the reason some observers expressed surprise when he was chosen as Trump’s campaign chairman. He is now accused, however, of an act of sheer stupidity that is truly breathtaking: A grand jury indicted him on additional charges of witness tampering after he allegedly tried to coach witnesses over the telephone while under the continual monitoring of a house arrest.

Trump has complained that Manafort is being prosecuted for things that happened “12 years ago.” However, that is why a pardon would be so problematic. Most independent observers view the charges against Manafort as exceptionally strong. Trump would need to pardon him for crimes ranging from fraud to conspiracy and witness tampering to money laundering and tax violations to false statements.

The same is true with Michael Cohen. This pardon talk notably got louder when reports surfaced that Cohen had fired his lawyers and was considering “flipping” as a cooperating witness. However, he also faces a long list of criminal allegations, ranging from business fraud to tax violations to lobbying violations to false statements. The vast majority deal with dubious business practices unrelated to the Trump campaign.

While it is true that none of these alleged crimes might have been identified had Manafort and Cohen not assumed such visible positions, that does not mean they are not criminals or should not be punished for their crimes. In the end, pardons could certainly keep associates loyal and uncooperative with prosecutors, but a pardon may not be quite as legally absorbent as Giuliani suggests. A president cannot pardon away future crimes. Thus, Manafort and Cohen could be called to testify under oath and could be charged with any new acts of perjury or other crimes. A pardon would make it more difficult for the men to refuse to testify under their privilege against self-incrimination.

Finally, a presidential pardon does not protect against state crimes, which, for Cohen, is a particular concern. Giuliani noted that a potpourri of pardons could come “when the whole thing is over.” It is not clear what that time frame might mean. Ironically, if Mueller is slow-walking the investigation, Giuliani’s words would encourage him to reduce that to a glacial pace. Yet, if it comes too early, they could still be forced to testify and require a daisy chain of pardons for any new false statements or criminal acts. The pardons would also have to cover not only the alleged crimes being investigated by Mueller but alleged crimes uncovered by career prosecutors in the Southern District of New York.

Presidential pardons were meant to address manifest injustices. No matter how you feel about the original basis of the special counsel investigation, it is hard to say that the prosecution of Manafort or Cohen would be an injustice to any degree. Indeed, using this power to relieve them of any accountability for crimes worth tens of millions of dollars would be a manifest injustice. They agreed to take high-profile positions and, when one does so, one accepts greater scrutiny. Hence the old expression, “One day on the cover of Time, next day doing time.”

Trump is correct that he and his campaign had nothing to do with these crimes. That is the point: Just as Manafort and Cohen should not be accused of crimes simply because of their connection to Trump, they should not be excused for prior crimes on the same basis. If Trump is going to grant immunity for any crime of any kind at any time, all of the ShamWows in the world won’t absorb the stain that would be left behind.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

Trump’s legal memo to Robert Mueller is a recipe for tyranny

(THIS ARTICLE IS COURTESY OF VOX NEWS)

 

Trump’s legal memo to Robert Mueller is a recipe for tyranny

A clear and present danger to the rule of law

Photo by Olivier Douliery-Pool/Getty Images

Essentially all presidents sooner or later end up commissioning lawyers to put forward an expansive view of presidential power, but those lawyers take pains to argue that they are notmaking the case for a totally unchecked executive whose existence would pose a fundamental threat to American values.

Donald Trump, however, is a different kind of president.

In a 20-page memo written by Trump’s legal team and delivered to Robert Mueller, as reported by the New York Time’s this weekend, they make an unusually frank case for a tyrannical interpretation of presidential power.

Trump’s lawyers say he has unlimited power over criminal justice

The key passage in the memo is one in which Trump’s lawyers argue that not only was there nothing shady going on when FBI Director James Comey got fired there isn’t even any potentialshadiness to investigate because the president is allowed to be as shady as he wants to be when it comes to overseeing federal law enforcement. He can fire whoever he wants. Shut down any investigation or open up a new one.

Indeed, the President not only has unfettered statutory and Constitutional authority to terminate the FBI Director, he also has Constitutional authority to direct the Justice Department to open or close an investigation, and, of course, the power to pardon any person before, during, or after an investigation and/or conviction. Put simply, the Constitution leaves no question that the President has exclusive authority over the ultimate conduct and disposition of all criminal investigations and over those executive branch officials responsible for conducting those investigations.

This is a particularly extreme version of the “unitary executive” doctrine that conservative legal scholars sometimes appeal to (especially when there’s a Republican president), drawing on the notion that the executive branch of government — including the federal police agencies and federal prosecutors — are a single entity personified by the president.

But to push that logic into this terrain would not only give the president carte blanche to persecute his enemies but essentially vitiate the idea that there are any enforceable laws at all.

Donald Trump’s impunity store

Consider that if the memo is correct, there would be nothing wrong with Trump setting up a booth somewhere in Washington, DC where wealthy individuals could hand checks to Trump, and in exchange Trump would make whatever federal legal trouble they are in go it away. You could call it “The Trump Hotel” or maybe bundle a room to stay in along with the legal impunity.

Having cut your check, you’d then have carte blanche to commit bank fraud or dump toxic waste in violation of the Clean Water Act or whatever else you want to do. Tony Soprano could get the feds off his case, and so could the perpetrators of the next Enron fraud or whatever else.

Perhaps most egregiously, since Washington DC isn’t a state all criminal law here is federal criminal law, so the president could have his staff murder opposition party senators or inconvenient judges and then block any investigation into what’s happening.

Of course, as the memo notes, to an extent this kind of power to undermine the rule of law already exists in the form of the essentially unlimited pardon power. This power has never been a good idea and it has been abused in the past by George H.W. Bush to kill the Iran-Contra investigation and by Bill Clinton to win his wife votes in a New York Senate race. Trump has started using the power abusively and capriciously early in his tenure in office in a disturbing way, but has not yet tried to pardon his way out of the Russia investigation in part because there is one important limit on the pardon power — you have to do it in public. The only check on pardons is political, but the political check is quite real (which is why both Bush and Clinton did their mischievous pardons as lame ducks) and the new theory that Trump can simply make whole investigations vanish would eliminate it.

This issue is bigger than Comey or Mueller

Much of the argument about Trump and the rule of law has focused rather narrowly on the particular case of Comey’s firing and the potential future dismissal of Robert Mueller.

These are important questions, in the sense that an FBI Director is an important person and a special counsel investigation is an important matter, but the memo is a reminder that they offer much too narrow a view of what the real extent of the problem is here.

One of the main purposes of the government is to protect the weak from exploitation at the hands of the strong by making certain forms of misconduct illegal. Trump’s assertion that he can simply waive-away investigations into misconduct because he is worried that the investigation might end badly for his friends or family members is toxic to that entire scheme. Trump, like most presidents, has plenty of rich and powerful friends and a much longer list of rich and powerful people who would like to be his friends.

If he really does have the power to just make anyone’s legal trouble go away because he happens to feel like it, then we’re all in a world of trouble.

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.