Trump Seen Flexing His Clemency Power After Nov. 3, Win or Lose
(Bloomberg) -- President Donald Trump has exercised his clemency power with gusto in nearly four years in office, pardoning or commuting the sentences of more than three dozen convicts. But after next week’s election he will be unleashed.
Win or lose, Trump won’t face electoral retribution for using his pardon power over federal crimes, which is his alone. That leaves little to stop him from trying to clear legal clouds from political allies, family members and others caught up in what he’s persistently branded as unfair prosecutions.
“Trump has already exercised his clemency power to reward friends and thwart cooperation with law enforcement, even when it might have some political cost,” said Andrew Weissmann, who worked on Special Counsel Robert Mueller’s probe of Russian interference in the 2016 election.
“If Trump were to lose the election, there would be little to keep him from pardoning all those around him and at his business to thwart any potential future investigations or cooperation,” said Weissmann, who writes in a new book that Mueller’s team “could have done more” to hold Trump accountable. “He might even pardon himself -- something no president has done or believed he needed to do.”
Modern presidents have shown the breadth of pardon possibilities. Jimmy Carter offered a blanket pardon to draft dodgers. Bill Clinton pardoned a political donor, Marc Rich. Gerald Ford pardoned Richard Nixon before he could be charged. Given that broad power, Trump could offer pardons of a range of people -- those convicted and in jail, in the midst of legal proceedings, or even those not formally accused.
What stands out about Trump’s acts of forgiveness isn’t so much the number but his methods. Many of the people given clemency by Trump were prominent and outspoken supporters of his, and he often bypassed the traditional process that started with pardon-seekers petitioning the Justice Department. The White House declined to comment.
The president’s clemency power is unilateral, but it’s not absolute. “Offering a pardon for silence is not allowed. That’s like witness tampering,” said Jeremy Paul, a professor at the Northeastern University School of Law.
For those speculating about whom Trump might pardon, here’s a partial list of possibilities:
Michael Flynn: Guilty Pleas, Then a U.S. Reversal
Trump could put an end to his former national security adviser’s four-year legal saga by reaching in with a pardon.
Flynn twice pleaded guilty to lying to FBI agents examining his ties to Russia, then moved to withdraw his plea, after hiring a lawyer who’s been an outspoken critic of the Mueller investigation. In May, the Justice Department moved to withdraw its case against Flynn.
U.S. District Court Judge Emmett Sullivan is now trying to determine whether the Justice Department’s about-face was guided by corrupt motives. That review would end with a pardon.
Paul Manafort: Serving Sentence at Home
Trump has expressed sympathy for his former campaign chairman, saying that his prosecution was unfair and that a pardon was “not off the table.”
Manafort, who spent his career working on behalf of pro-Kremlin oligarchs in Ukraine, never flipped on the president. Even when Manafort decided to cooperate with Mueller, following a conviction at trial for financial crimes, he kept lying.
Manafort was sentenced to seven-plus years. After the Covid pandemic emerged this year, he was allowed to serve it at home. Trump praised Manafort after his conviction for refusing to “break” under pressure and compared him with his former lawyer, Michael Cohen, a cooperator described by Trump as a “rat.”
Roger Stone: For Now, a Commutation
Trump commuted Stone’s sentence just as he was to report to prison to serve a 40-month term. The president could go a step further by erasing his friend’s criminal record.
Trump’s relationship with the self-described political dirty-trickster goes back decades, to when both men were mentored by the notorious fixer-lawyer Roy Cohn.
Mueller’s report described Stone as a primary conduit of information between WikiLeaks, which published a trove of emails hacked from Hillary Clinton’s campaign chairman in 2016, and the Trump campaign. He obstructed Mueller’s investigation and was convicted of lying to Congress and tampering with witnesses.
Rudy Giuliani: Under SDNY Investigation
Giuliani is under investigation by prosecutors in the Southern District of New York, which he once ran. No charges have been brought, but Trump could pre-emptively lift any cloud of uncertainty over the former New York mayor by pardoning him anyway.
Trump calls Giuliani his personal lawyer, but Giuliani is also so much more: his fixer, his unofficial foreign ambassador, his Fox News surrogate.
The SDNY investigation involves his business partnership with Lev Parnas and Igor Fruman, who helped him dig up information about Trump’s chief political rival, Joe Biden. A wire-fraud charge against Parnas and another associate alleges that they raised more than $1 million from investors under false pretenses. Giuliani has said he was paid $500,000 to promote their new company, Fraud Guarantee.
Steve Bannon: Charged Over Border Wall
Similar to Manafort, Bannon was a Trump campaign CEO in 2016. Along with three others, Bannon was charged in August with conspiracy to commit wire fraud and money laundering in connection with an effort to get private sector funding to build a wall along the U.S.-Mexico border -- a signature Trump campaign promise.
Although Bannon was pushed out as chief White House strategist in 2017, he has worked to support Trump’s re-election effort, tipping off a New York Post reporter in September to the existence of a cache of suspicious emails from the laptop of Hunter Biden, a son of the Democratic presidential nominee.
Julian Assange: Link to Russia
Assange was never in Trump’s inner circle, but he has information about his interactions with the 2016 Trump campaign concerning emails infamously stolen from top Democrats.
The controversial founder of WikiLeaks is fighting extradition in the U.K., hoping to avoid criminal charges of computer intrusion filed against him in Virginia.
A lawyer for Assange told a U.K. court in September that two Trump associates had offered Assange a deal in which a U.S. extradition order would be lifted if he revealed who gave WikiLeaks the Democrats’ emails.
According to the Mueller report, WikiLeaks played a crucial role in the Russian government’s attempt to influence the 2016 election.
Elliott Broidy: Guilty Plea Over Lobbying
The former top Trump fundraiser’s guilty plea for failing to register as an agent of a foreign entity was related to a Malaysian embezzlement scheme that didn’t involve Trump, so it’s not clear whether the president would feel any duty of loyalty to Broidy.
The Trump Organization
Trump could also issue pre-emptive pardons in an effort to protect members of his family and executives of his real estate company from future prosecution at the federal level. The Supreme Court settled any question about the legality of such pardons in the 19th century.
State prosecutors in New York are already looking at whether the Trump Organization misrepresented the value of its assets in securing bank loans and making insurance claims. Although the president has no control over the state actions, he could pardon his children -- including Donald Jr. and Eric, who run the company -- and Chief Financial Officer Allen Weisselberg, which could blunt any possible federal investigations in the future.
Separately, Ivanka Trump and Jared Kushner, Trump’s eldest daughter and son in law, have been criticized for using their White House positions to bolster their private business interests. As senior advisers to the president, they would also have been privy to some of the most sensitive decisions that Trump made in the White House. A pre-emptive pardon would insulate them from prosecution.
“A pardon to any member of his family would not be at risk to a legal challenge,” said Paul, the Northeastern University law professor.
And then there’s the idea of a self-pardon. Trump has said he has the “absolute right to pardon myself,” but it would be an unprecedented step, according to Stuart Green of Rutgers Law School.
“There’s a certain incoherence in the idea of self pardon,” he said. “Even though it’s not in the language of the Constitution, it defies our understanding of the rule of law.”
Trump has numerous reasons to consider testing the limits of his clemency power.
After he leaves office in 2021 or 2025, the president could face scrutiny over a variety of issues, including claims that he used his office to funnel business to his hotel and resort properties. There’s also the campaign finance violation that ensnared Cohen, involving hush payments to an adult-film actress. Cohen has said that Trump directed those payments. Court filings in that case implicated Trump but didn’t identify him by name.
Also, the Mueller report describes several episodes in which Trump tried to obstruct justice. Attorney General William Barr determined that Trump didn’t break the law, but a future attorney general might take a second look.
Finally, the New York Times’ recent reporting on the presidents’ income tax returns -- revealing that he paid only $750 in income taxes in 2016 and 2017 -- questioned the tax treatment of some of his deductions over the years and could set off a potential tax-evasion investigation.
A self-pardon would almost surely prompt legal challenges and force the Supreme Court to determine its constitutionality. It also may not be necessary, said Weissmann, the former Mueller prosecutor and author of “Where Law Ends: Inside the Mueller Investigation.”
“If he wins the election,” Weissmann said, “he need not fear federal prosecution as he has Barr at the helm of the Justice Department.”
©2020 Bloomberg L.P.