Trump-Manafort Collusion Is Bad for the Rule of Law

(Bloomberg Opinion) -- There’s just one conceivable reason for Paul Manafort’s lawyers to be meeting with President Donald Trump’s during Manafort’s plea negotiations: Manafort was looking for a pardon, and Trump’s lawyers were dangling the possibility, whether expressly or implicitly.

Of all the troubling aspects of Trump’s behavior during this investigation, the hint of pardon abuse is the worst.

Anyone under investigation, even the president, is entitled to defend himself. But only the president has the formal power to pardon co-conspirators who might testify against him. The danger that he might do so fundamentally undermines the rule of law by putting the president above it.

To be sure, it would be a crime and an impeachable offense if Trump corruptly used the pardon power to protect himself during special counsel Robert Mueller’s investigation into Russian interference in the 2016 campaign. The fact that the Constitution gives Trump the pardon power does not mean he can use it to obstruct justice. That would be like saying the president could use his commander-in-chief authority to order the murder of his political opponents.

The bizarre conversations Manafort lawyer Kevin Downing had with Trump defense lawyer Rudy Giuliani, as reported Tuesday by the New York Times, demonstrate how the very possibility that Trump might use the pardon power corruptly has distorted the progress of the Mueller investigation and the principle that everyone in a democracy must be subject to the rule of law.

When you are negotiating with prosecutors, trying to exchange incriminating information for a reduced sentence, you don’t turn around and give a blow-by-blow to the lawyers for the person you are supposed to incriminate. That’s basic common sense, at least for anyone who has ever watched “The Godfather” or “The Wire.”

The only explanation for why Downing was helping Giuliani is that there was something Manafort, the president’s former campaign chairman, could get from Trump. And the only thing of value that Trump has for a convicted felon like Manafort is a pardon. Manafort was convicted in August on charges of tax and bank fraud. He pleaded guilty in September to conspiring against the U.S. and agreed to cooperate with Mueller’s investigation. On Monday, Mueller said Manafort had lied repeatedly since making that deal.

The information about the Mueller investigation that Downing passed to Giuliani undoubtedly helped Trump. It’s always good to know what your opponent is looking for.

For example, Downing reportedly told Giuliani that Mueller’s team was focused on the Trump Tower meeting in June 2016 at which a Russian emissary tried to offer Donald Trump Jr. compromising information on the Democratic candidate, Hillary Clinton. That knowledge would have allowed President Trump to infer that Mueller lacked independent corroboration that he knew about that meeting in advance.

Indeed, although you likely couldn’t prove it in court, you could argue that the meeting between Downing and Giuliani constituted an unlawful conspiracy to obstruct justice. Whatever information Manafort was offering must have been in the hopes of a return benefit. That benefit necessarily would have been — could only have been — a potential pardon.

Giuliani gladly received the information on the president’s behalf. Even if he never promised anything in return, his presence held out the hope of a pardon for Manafort.

The upshot of these meetings is that Trump and his team have a special tool unavailable to all other defendants or people under investigation, because he is the president. That’s unfair and wrong.

Trump could cure this problem by publicly promising that he won’t pardon anyone charged in connection with him, his campaign or his family. A normal president would likely have already done so, under political pressure.

Yet Trump has taken the opposite tack. Instead of making it clear that he won’t misuse the pardon power in his own defense, he’s gone out of his way to suggest that he just might.

Trump has even asserted that he has the right to pardon himself. That view is surely constitutionally wrong. A court would almost certainly refuse to treat a self-pardon as valid.

Nevertheless, by saying it, Trump effectively signaled to all listeners that he would use the pardon power to the fullest extent he could — that he would certainly pardon a co-conspirator to protect himself.

Such a pardon would be a crime and an impeachable offense, but it could also be legally valid. That is, a federal court would likely treat a pardon of Manafort as legal reason not to entertain charges against him. Trump would be criminally liable, but Manafort would be off the hook.

All this detail captures just how bad Trump’s words and actions connected to pardons have been. Damage is being done to the rule of law, right here and right now.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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