The collapse of the plea deal has prompted a torrent of speculation that Manafort has reason to believe he could get a pardon and, therefore, has continued to withhold critical information from Mueller and/or lied. In a court filing prosecutors stated, “The government will file a detailed sentencing submission to the Probation Department and the Court in advance of sentencing that sets forth the nature of the defendant’s crimes and lies.”
There are a variety of important aspects to these developments.
First, if the “detailed sentencing submission” is made public, we will learn something(s) about what Mueller knows and what Manafort told him. This would be a rare glimpse into the substance of the Russia probe before any report is presented. In one respect, this virtually ensures that President Trump won’t be able to bottle up the report (since we’d know some of what’s in it anyway), but it also would tell other witnesses what Manafort’s story is. We don’t know if the submission would help other witnesses or defendants sync up their stories, or whether it instead might reveal they’ve already lied. In any event, Manafort is likely useless as a trial witness, having lied now multiple times, according to Mueller, but still could be more forthcoming with key facts once the 69-year-old realizes he’s heading most likely for a life sentence.
Second, I find it hard, but not impossible, to believe that a pardon promise at this stage could have been communicated without knowledge of authorities, who no doubt continue to monitor Manafort’s conversations and correspondence. (If this was communicated through attorneys, the attorney-client privilege could be voided on the theory this is all a conspiracy to obstruct justice.)
Third, we’ve heard reports previously that the White House has dangled pardons in front of Manafort and former national security adviser Michael Flynn. If that’s what’s happened (or continues to happen), the extent of the pardon power, which Trump has characterized as unlimited, comes to the fore.
“If a president sold pardons for money, the president would be guilty of bribery. If a president sold nominations for money, he would be guilty of bribery,” wrote Fordham law professor Jed Shugerman in March. “So, too, if the president offered pardons in order to corruptly obstruct justice, that would be a felony.” He continued: “Those who say the president is immune for his official acts are essentially saying the president is uniquely above the law, that he should be held to a different standard from other officials who take bribes, buy off witnesses with public goods, or obstruct justice. That view is inconsistent with our democratic and republican notions of law.”
Other constitutional experts agree that a pardon in exchange for silence about possible crimes would be void. The nonpartisan Protect Democracy group, which has litigated a variety of matters against Trump, put out a helpful primer on this topic, which posits that “Article II—the Take Care Clause and the Oath Clause—require the president to act in the public interest, binding him to exercise fiduciary duties of loyalty and care to the common good.” (Emphasis in original.) That would prohibit self-pardons as well as pardons meant to shelter Trump from legal peril.
Moreover, Protect Democracy explains:
Federal obstruction laws, which bar corruptly-motivated actions, exist to ensure that those with access and power cannot evade accountability for their actions. Promising a pardon to prevent a witness from cooperating with an investigation would constitute obstruction of justice. A president can obstruct an investigation by shutting it down, ordering the destruction of documents, dangling pardons, or issuing pardons to induce witnesses to impede the investigation. The president cannot exempt himself from laws barring obstruction of justice.
Likewise, in a lengthy white paper, Noah Bookbinder, Norman Eisen and Barry Berke found that “the theory that a president’s exercise of Article II powers cannot be the subject of criminal prosecution for obstruction of justice is unquestionably incorrect. None of the obstruction statutes discussed above carve out conduct that is done in an official capacity.” In short, a pardon intended to obstruct justice likely wouldn’t save Manafort, but it could be one data point in a pattern of obstruction of justice.
We don’t really know if Manafort blew up his plea deal because of a pardon either offered months ago or more recently. If he did, however, he may have made a very bad calculation, setting up a life sentence without obtaining a constitutionally sound pardon. He’d have given up everything and gotten nothing. That would be some karmic justice for a man who’s conned and lied his way through life.