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Opinion Is Trump’s pardon of Scooter Libby a warm-up for a constitutional crisis?

Michael Cohen in New York on April 12. (Mary Altaffer/AP)

I have long thought Scooter Libby’s conviction was unjust and that President George W. Bush should have pardoned him rather than commute his sentence. However, coming on the heels of the raid on President Trump’s lawyer Michael Cohen’s office and on the same day that Trump phoned Cohen(!), Trump’s pardon of Libby means we are now at risk of a constitutional standoff concerning the pardon power. It is noteworthy that while the timing was disturbing, the stated rationale for the pardon did not address the special counsel per se. The key portion of the statement is as follows:

In 2015, one of the key witnesses against Mr. Libby recanted her testimony, stating publicly that she believes the prosecutor withheld relevant information from her during interviews that would have altered significantly what she said.  The next year, the District of Columbia Court of Appeals unanimously reinstated Mr. Libby to the bar, reauthorizing him to practice law.  The Court agreed with the District of Columbia Disciplinary Counsel, who stated that Mr. Libby had presented “credible evidence” in support of his innocence, including evidence that a key prosecution witness had “changed her recollection of the events in question.”

None of these sorts of circumstances would apply to a preemptive pardon of Trump aides and/or associates.

In Trump’s case, the very real possibility exists that he may use the pardon power for any number of family members and associates (e.g., Cohen, Paul Manafort, Rick Gates, Donald Trump Jr., Jared Kushner) in an effort to prevent them from flipping and providing incriminating information about him. Before we delve into the constitutional issue, it’s important to remember a few limitations on the pardon power. First, Trump cannot pardon anyone for state crimes. Second, once people are pardoned, they cannot claim the Fifth Amendment against self-incrimination; they can be subpoenaed to testify and held in contempt of court if they refuse or indicted if they perjure themselves. (Trump could then try pardoning them for those crimes, but then we’d really be in a legal nightmare.) Third, there would be some reason, as was argued in an amicus brief in the Joe Arpaio case, to question the effectiveness of a pardon. (In other words, the pardon might not “work.”)

The notion that the presidential pardon power is so all-encompassing that it cannot be criminal is wrong. Norman Eisen (who co-wrote a must-read white paper on Trump’s liability for obstruction of justice) explains, “Congress has by statute established that the crime of obstruction of justice occurs when any individual acts with corrupt intent to interfere with an investigation. Because ours is a country in which no one is above the law, this statute applies with equal force to private and government actors.” He adds, “The president is no more exempt from the application of that statute then he would be from laws prohibiting taking a bribe. ”

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Indeed if the president cannot escape bribery charges if he receives cold hard cash in exchange for a pardon, it is inconceivable that he could be allowed to get something far more valuable than cash: help evading prosecution. The motive, in other words, is critical when you are looking at crimes such as obstruction of justice for which a “corrupt intent” is required. It is hard to imagine a more corrupt intent than pardoning someone to escape your own prosecution.

“Pardoning Cohen would greatly strengthen the case for obstruction because its obvious purpose would be to remove the pressure for Cohen to cooperate with federal prosecutors seeking to learn about the Trump-related skeletons in Cohen’s closet and to give Manafort and other Mueller targets reason to believe in the pardon prospects Trump has dangled in front of them,” says constitutional scholar Laurence Tribe.

This is not the first time the legality of Trump’s pardons became a pressing issue. Trump’s lawyers reportedly dangled pardons for Michael Flynn and Manafort with their respective counsels. Former U.S. attorneys John McKay and Joyce Vance have written that pardoning those witnesses would constitute obstruction of justice. “A pardon for Cohen at this juncture, before he has been charged,” Vance told Right Turn, “would be part of a course of conduct, supplemented by the president’s public comments, that seems designed to keep the investigation from proceeding, as any other matter would [be obstruction].”

Likewise, former prosecutor Renato Mariotti tells me, “If Trump pardoned Cohen in order to improperly influence his testimony, that would be obstruction of justice. Typically that would be extremely difficult to prove, because everything would turn on Trump’s intent — if he merely had the intent to help a friend, that would be permissible. But given Trump’s tendency to make public statements against his own interest, it’s not inconceivable that a case could be made.”

Let’s also dispense with the notion that Trump could pardon himself. While the issue has obviously never been litigated, the standing position for the Justice Department pursuant to a Watergate-era memo from the Office of Legal Counsel is that a president cannot pardon himself because “no one may be a judge in his own case.” Looking back to precedent, it is evident that the power to pardon is meant to extend to others. The Supreme Court held in the early days of the republic in Ex Parte Wells that “a pardon [was] … a work of mercy, whereby the king, either before attainder, sentence, or conviction, or after, forgiveth any crime, offense, punishment, execution, right, title, debt, or duty, temporal or ecclesiastical.” Insofar as “mercy” by definition is something one extends to another person, it’s plainly the case that the president would need a subsequent president, as was the case with President Gerald Ford’s pardon of Richard Nixon, to get him off the hook.

Trump’s more immediate problem would be not prosecution but impeachment. In that context, Congress would surely be justified in pursuing impeachment if Trump started pardoning others. As Vance and McKay wrote:

The constitutional principles that limit political interference with law enforcement were recently explained by Protect Democracy, a non-partisan non-profit organization. The limitations flow from Article II of the Constitution, which requires that the president “shall take Care that the Laws be faithfully executed,” and the Bill of Rights. This means that when the president intervenes in a specific investigation or prosecution (with a few exceptions not relevant here), he is not faithfully executing the law to the best of his ability. He also risks violating the First and Fifth Amendments, which require that the law be applied evenhandedly and not used to punish disfavored individuals or groups.

Furthermore, interfering in the operation of our legal system for his own benefit almost certainly would violate his oath of office, which in essence calls upon him to put the national interest above his personal interest. (The president pledges, “I … will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” It does not state “unless I need to save myself.”)

In this vein, it is important for Congress to speak with one voice. A joint resolution, stating that the pardoning of witnesses in this case in order to protect Trump would trigger impeachment proceedings, could possibly head off a constitutional crisis, although don’t hold your breath waiting for Republicans to do the right thing. Republicans including Sen. Joni Ernst (Iowa) and House Speaker Paul D. Ryan (Wis.) as recently as Sunday disclaimed any need to protect special prosecutor Robert S. Mueller III because they are sure Trump won’t fire him(!). If Republicans object to protecting Mueller, they almost surely won’t  take up the possibility of Trump trying to pardon his way out of trouble.

Republicans are whistling through the political graveyard if they do not start proactively steering Trump away from impeachable acts. Letting Trump know in advance that pardoning witnesses or firing Mueller or Deputy Attorney General Rod J. Rosenstein would end his presidency would be the best means of preventing Trump setting his own presidency ablaze.

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