Like a lot of other people, I’ve been watching while Donald Trump makes every move he can think of to protect himself from being held accountable for the offenses that (it becomes clearer by the day) he and his gang have committed.
All these moves, he makes right before our eyes.
He lies to discredit those investigating him.
He lies to cover up the truth of what has been done.
And he sends messages to potential damaging witnesses against him about how they might be freed of their legal burdens through a presidential pardon. Therefore, the implication seems to be, just keep your mouth shut and I’ll make sure that you pay no price for your crimes.
The possibility of a pardon has seemed to threaten the ability of the Mueller investigation to apply pressure on witnesses — using the threat of long terms in jail– to get them to testify against bigger fish in the investigation. Big fish like Trump.
While I’ve worried about all those, lately I’ve come to think that there’s no need to worry about Trump’s abuse of his pardon power. Here’s my thinking, and I’m wondering if I’m missing something.
First, those who have already flipped — like Michael Flynn — have already presumably told what they know. So it’s too late to shut them up with a pardon.
Second, the two main figures whose flipping is sought but not yet achieved — Michael Cohen and Paul Manafort — are both almost certainly guilty of state crimes (New York, California, Virginia). Because, as has been pointed out many times, the President can pardon only federal crimes, no Trump pardon can free either Cohen or Manafort from major legal jeopardy (from state-level prosecution). Which would mean that Mueller’s team (working in coordination with state Attorneys General) can maintain the ability to put pressure on these witnesses regardless of what Trump does.
There’s a third point that’s often raised about the effects of a pardon: once someone is granted a pardon, they lose entirely their Fifth Amendment rights against self-incrimination. So any witness whom Trump might pardon can be called before a grand jury and be compelled to testify truthfully, unable to deflect any questions by pleading the Fifth.
If they would them perjure themselves, they’ve committed a new crime. Or if they refuse to answer despite not being able to emply the Fifth Amendment, they will be found in contempt of Court. So that would seem to mean that even if Trump pardoned them, that would do nothing to protect him from whatever testimony they might be able to give regarding Trump’s own culpability.
Except that leaves the question: if they do perjure themselves, or are found in contempt of Court, would the President be able to just wave his magic pardon wand and absolve them of those offenses as well?
Or are those offenses somehow off limits to the application of a presidential pardon?
That question points to the only possible open door I can now see for the pardon power to impair the Mueller investigation.
But even if we assume the worst — that Trump could pardon away any crimes committed in testifying before a grand jury — I would imagine that it would look SO BAD to SO MANY PEOPLE, that it would be more costly politically even than firing Rosenstein or Mueller. And so would not end up helping Trump.
Wondering: am I wrong in thinking that the pardon power is not really a useful tool by which Trump can protect himself from the reckoning he so richly deserves?
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