By Harry Litman and Mark Greenberg
Los Angeles Times
Special Counsel Robert Mueller has drawn first blood, and it’s a deep cut. The indictment of former Trump campaign manager Paul Manafort, along with Manafort’s longtime associate Rick Gates, on multiple charges of conspiracy, tax fraud and money laundering poses a serious threat to the Trump presidency. So does the news that George Papadopoulos, a campaign aide, pleaded guilty to one count of lying to FBI agents about the nature of his interactions with foreign nationals whom he believed had close connections to senior Kremlin officials.
The keenest peril to Trump is the prospect that Manafort would strike a deal with Mueller’s team to reduce his criminal exposure in return for information against the president or his closest circle of advisers. Trump’s lawyers pretend they’re unphased by Monday’s developments, but they’re just acting. Manafort was at the center of the president’s campaign for several pivotal months, and along with Jared Kushner and Donald Trump Jr. attended the July 9, 2016, meeting with a Russian lawyer who promised opposition research on Hillary Clinton. The president was personally involved in fabricating a misleading account of that meeting.
Moreover, the indictment demonstrates that Mueller is ready and willing to probe financial misdeeds in Russia and Ukraine that precede the campaign. Trump and Manafort both played in that dirty pond for years (albeit separately), and Trump has been especially anxious to try to keep the investigation from expanding to his business conduct (and his tax returns).
Does Trump have any viable alternative at this point to sitting back and watching the probe unfold, hoping it stops short of the Oval Office?
He could, theoretically, order the Department of Justice to fire Mueller. The drumbeat for that option has resumed recently in conservative media and among proxy members of Congress, likely with the tacit approval of the White House.
Trump might ultimately prove unable to resist that option. But at least the grownups on the Trump legal team — who have restrained his tweet war with the special counsel — understand that at present the move would carry outsize political risk.
But Trump might think he has another way out: a preemptive pardon of Manafort. The president has already shown that he views the pardon power as a plaything in his personal sandbox. Perhaps the most arrogant action of his presidency thus far was his pardon of former Maricopa County, Ariz., Sheriff Joe Arpaio, who had been convicted of criminal contempt of court. Trump steamrolled the DOJ’s objections and simply ignored the well-established protocol for granting pardons.
Two prominent officials from past Republican administrations have taken the argument to a ridiculous extreme, arguing in a Wall Street Journal op ed that the president should immediately issue a blanket pardon to anyone in Mueller’s sights.
Trump might surmise that a pardon of Manafort would enfeeble if not disable Mueller’s ability to induce cooperation of other suspects through the threat of criminal prosecution. Such a move would amount to an all-out declaration of war against the special counsel — making a high-stakes showdown inevitable.
It is true that the president’s pardon power is generally considered quite broad; as Trump has tweeted, “all agree the U.S. President has the complete power to pardon.”
If, however, the president were to pardon Manafort, Manafort’s lawyers would still need to ask the court to dismiss the charges. And at that point, Mueller could try to make the case that the pardon was invalid. It would be an unusual argument, but the unusual has become routine in the Trump era.
On his side, Mueller would have the many constitutional experts who believe that presidential powers in general may not be exercised for constitutionally improper purposes. Although the Supreme Court has not addressed this issue with respect to pardons, the court has indicated that the pardon power is subject to constitutional limitations.
Indeed, if the pardon power were not so constrained, the president would in effect be above the law — an untenable position in our democracy. To take just one example, at the end of his term, he could hire a contract killer to murder a personal enemy and then pardon the hitman and himself on his last day.
Mueller could make two related arguments that the Manafort pardon was granted for a constitutionally improper purpose. First, he could argue that granting or promising a pardon to thwart a criminal investigation violates the president’s duty to “take care that the laws be faithfully executed.” Second, Mueller could argue that the president had issued the pardon for the constitutionally improper purpose of protecting himself, members of his family and close associates from legal liability, in effect obstructing justice.
Once the issue was joined at the district court, it would likely be fast-tracked to the Supreme Court. Mueller v. Manafort would instantly become a case for the ages.
But these are still early days. Trump has to make a few more blunders before we get there.
Harry Litman, a former U.S. attorney and deputy assistant attorney general, teaches at UCLA Law School and practices law at Constantine Cannon. Mark Greenberg is a professor of law and philosophy at UCLA, where he teaches criminal and constitutional law. They wrote this for the Los Angeles Times.
