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As far as we know, the presidential power to pardon is absolute. For federal crimes — the kinds Paul Manafort was convicted of and Michael Cohen pleaded guilty to — Donald Trump has the Constitutional authority to grant pardons or give clemency.
It wouldn’t be ethical for Trump to grant pardons to his cronies but, in case you haven’t been following along, NOTHING ABOUT DONALD TRUMP IS ETHICAL. He does not care about your norms or ethics. The Wall Street journal has an article up about pardons and it ends with a quote from an ethics lawyer under President Obama. He says, stupidly, “People don’t dare to do it because of the laws of political gravity. Trump is not immune from them.”
WRONG! How many times can so many smart people be wrong about the same goddamn thing? The laws of “political gravity” DO NOT APPLY to Donald Trump because he is buoyed by the boiling rage of a racist white base. Physicists would call it “spooky action at a distance.” The quantum entanglement of deeply racist people being the only way Republican candidates in any state can win elections produces the Trump effect whereby the president can do whatever he wants so long as he is perceived as being on the side of aggrieved white people. Barack Obama would have been impeached for knowing Paul Manafort. Bill Clinton was actually impeached for obstructing justice and trying to cover up an affair. Donald Trump can do these things, and more, and escape accountability because most people don’t vote and nearly half of the ones who do suck.
The laws of political physics will not stop Trump from pardoning Manafort or Cohen. Trump has proven again and again that the Republican party does not have the will or the morality to stop him.
But the laws of… “the law” might. Even as Trump furiously packs the courts with FedSoc and Heritage Foundation appointees designed to protect him, the courts are still the only branch willing to stand up to this administration. Again, as a Constitutional matter, Trump’s power to pardon is probably unlimited for federal crimes. But using the power does have legal consequences that Trump might not want to face.
1. It’s more evidence for obstruction.
You could make the argument that pardoning people who are potentially witnesses against you in an ongoing investigation into whether you obstructed justice and engaged in a criminal conspiracy with a foreign government is in fact obstruction of justice and/or an overt act in furtherance of the conspiracy. I don’t know that this argument has ever been tested but… Trump is making people test a lot of things.
Trump is basically engaged in witness tampering. During the Manafort trial, he was trying his best to engage in jury tampering. A pardon of Manafort would certainly go into the obstruction bin, right along with all the times he’s, you know, admitted to obstructing justice and all the evidence White House counsel Don McGahn is giving the special counsel about Trump’s attempts to obstruct justice.
None of this necessarily matters now. Robert Mueller is going to make his report. It’s going to show Trump obstructed justice. Paul Ryan is going to say, “Thanks,” and do absolutely nothing. If Democrats take back the House but don’t take back the Senate, they’ll do absolutely nothing.
But Trump isn’t going to be president forever (don’t quote me on that), and when he is decloaked, charges are going to be coming. Pardoning Manafort and Cohen might seal that fate.
2. The Fifth Amendment thingy.
As many have pointed out, pardoning Manafort or Cohen removes their right against self-incrimination. They can be compelled to testify truthfully, if they cannot be put in jeopardy of their liberty because the president has already pardoned them.
This fact is not as useful as some have made it out to be. Manafort is not out here pleading the Fifth. He’s pleading innocence (kinda) and otherwise saying he doesn’t know anything about no Russians. Cohen isn’t pleading the Fifth. He’s pleading guilty. He has already forgone his right against self-incrimination by incriminating himself.
But still, Trump might not risk pardoning Manafort if it seems like Manafort is willing to do all the time and keep his mouth shut. Which brings us to this tweet. We’ve already talked about it today, but dear God, you need to read this in the Marlon Brando/Vito Corleone voice:
He refused to “break.” Are you freaking kidding me? The President of the United States is praising Omertà, the vow of silence, taken by one of his henchmen.
Michael Cohen’s attorney, Lanny Davis, said on NPR this morning that Cohen would “not accept” a pardon from Donald Trump. Manafort’s team has made no such statement.
But the fact that Manafort even went to trial despite the mountain of evidence against him, and the fact that he’s still going to be tried in Maryland and isn’t talking deal, suggests that Manafort either expects a pardon, or he’s just one of these old-school types who will go to jail rather than snitch on the boss. OR… you know… you can fall in with the kinds of people who can find you after your plea, before you testify.
If it’s door number one, I expect a pardon to be coming, political consequences be damned. But if it’s door number two (or three), Trump might be perfectly willing to let Manafort take the weight.
Me, I can’t get this scene out of my head.
Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.
Cohen Says He Won’t Take A Pardon, Manafort Already Being Lauded For His Omertà curated from Above the Law
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