The President’s Pardons Paradox: Granting Them Could Aid the Prosecution

*This article was first published on Just Security

It emerged late last week that President Trump has reportedly queried his lawyers regarding the nature and scope of his authority to pardon individuals including himself.  Over the weekend, Trump tweeted a “nothing to see here” message while asserting his pardon power was “complete,” presumably meaning absolute.

While not limitless, the authority of the President to pardon is undeniably substantial. The President cannot pardon for prospective crimes or violations of state criminal law. There is a strong argument that he cannot pardon himself and certainly cannot insulate himself or others from the conviction of impeachment, as expressly stated in the Constitution.  But other than these and perhaps other narrow limitations, a President’s pardon powers is vast.  Indeed, the President’s power to pardon others including his family members for past federal crimes, even without evidence of specific criminal investigation or prosecution, is arguably plenary in nature.

Not surprisingly in the context of the investigation into Russian interference in our election, Trump’s reported interest in pardons has generated an avalanche of commentaryexploring the legal limits of presidential pardon authority. Less attention, however, has been paid to why President Trump has not exercised his pardon authority yetespecially with so many of his confidants caught in a web of a criminal inquiry. This is the issue I focus on here.

Some may argue that if Trump were to pardon close confidants – say his campaign manager Paul Manafort, the Trump-identified foreign policy advisor Carter Page, Senior Advisor and son-in-law Jared Kushner or his National Security Advisor Michael Flynn – the optics would be undesirable and the political fallout substantial.  This is undoubtedly true, President Gerald Ford arguably never recovered politically from the pardoning of President Richard Nixon. But given Trump’s record, I am highly skeptical that these political concerns are a sufficient deterrent to exercise his authority.

Unpleasant optics because of his flagrant norm violations thus far have hardly served as significant inhibitions for this President.  He did not release his tax returns as every president has for half a century.  He ignored anti-nepotism laws. He discussed on the campaign trail imprisoning his political opponent. He ignores the Emoluments Clause of the Constitution.  The norm transgressions are so substantial that this site has a section dedicated to it.  There is an outcry.  But that outcry and the optics simply do not seem to bother this President or his most ardent supporters.  Nor do they seem sufficient to alienate him from almost all of the elected Republicans in Congress, at least so far.

It must be something else. Most likely the President has been informed of one important fact about his pardon power, anyone he pardons is no longer under criminal jeopardy for federal crimes and, accordingly, Fifth Amendment protection for self-incrimination evaporates. Manafort, Page, Kushner, and Flynn at this point – pre-pardon – need not answer any questions from Robert Mueller, Congress or anybody.  The Fifth Amendment of the United States Constitution provides no person “shall be compelled in any criminal case to be a witness against himself.”

Once pardoned, however, there is no legal jeopardy for past federal crimes. Therefore, the Fifth Amendment can no longer be a shield and permit Trump’s pardoned associates from refusing to answer questions under penalty of perjury. This creates a paradox for President Trump.  When he pardons an individual, they are free from possible prosecution but they are also uncloaked of their most robust constitutional protection.

This may well be why President Trump has not pardoned Flynn, for example. Given the reported substantial contacts between Flynn and Russian government emissaries, given Flynn’s patent falsities including on federal forms completed under penalty of perjury, Flynn’s only protection presently from being compelled to testify – including possibly against the President and others – is the Fifth Amendment self-incrimination clause. Imagine if that was no longer a shield.  Grand Jury, FBI Agents, Congress all could drill Flynn under oath.  Any material prevarication would be punishable as perjury.  At that point Flynn’s personal interest will be to tell the truth, even if that truth incriminates the President who fired him.

So the pardon of presidential associates is a double-edged sword.  On the one hand, he will ensure they are not prosecuted if they committed crimes in furtherance of the President’s interest.  On the other, once pardoned, the interest of the pardoned associates likely diverges from the President.  If crimes were committed that implicate the President and his family – and I do not believe we have sufficient evidence to answer that conclusively at this time – prior to being pardoned, a Trump associate is 100% within their rights to simply say nothing.  But not afterwards.

One caveat worth noting is that because the President’s pardon power is limited to federal crimes, the Fifth Amendment may offer protection if the pardoned individual is still under jeopardy for state crimes. However, I do not see this as a substantial issue at this point because in the main, the possible criminal liability of which we are presently aware in the Russia probe seem distinctly federal in nature, e.g., the Computer Fraud and Abuse Act, failure to complete federal disclosure forms truthfully, false statements to the FBI, or obstruction of justice in a federal case, for example.

It is true that we cannot be certain where the investigation will go and it could probe violations of state law.  This seems most likely with financial crimes. Money laundering, for example, is illegal both under federal law and New York state law (the most likely state jurisdiction relevant here). And in such fairly circumscribed cases, the pardoned individual would still enjoy Fifth Amendment protection in discussing facts of relevance to those cases.

But I don’t think this wrinkle should distract from the main point:  The President’s exercise of his pardon power is not a panacea.  There are political costs to be sure. Many will ask, why do you need a pardon if no crime was committed similar to how President Trump discussed a grant of immunity:  “If you’re not guilty of a crime, what do you need immunity for?”  It will thereafter be a political cudgel and add to the narrative of a President hell-bent on covering up crimes he committed or that others committed on his behalf.  He fires Comey because of the Russia probe as President Trump himself made clear in the Lester Holt interview.  He has confirmed his upset with Sessions because his recusal self-neutered the Attorney General’s ability to defend the President.  He attacks Mueller in an attempt to discredit any future findings of wrongdoing. And if he pardons, the story will surely and understandably be that it is another attempt to evade accountability.

These political restraints, as in so many other areas, will not be sufficient to deter this President. However, the realization that anyone he pardons, unless also under jeopardy of state law prosecution, has lost the right against self-incrimination and can be compelled to testify truthfully under pain of contempt and perjury, may well explain this President’s failure to pardon anyone thus far and may prove a continuing reason not to pardon associates in the future.

In this way, if the President exercises his pardon power down the road, it may signal a certain desperation. It may mean that the investigation is getting close.  It will mean he has calculated that whatever the pardoned individual is compelled to testify under oath is less damaging to him and his interests than if the individual was not pardoned but squeezed by prosecutors.  It will mean that the political weight of “nothing to see here” has been overcome by the legal weight of personal and family legal jeopardy.

No Red Line: Mueller Will Follow the Money

President Trump recently said that Special Counsel Robert S. Mueller, III, would be crossing a “red line” if he were to investigate Trump’s finances. Does Mueller have legal authority to probe Trump’s finances? Absolutely. In fact, Mueller would be failing his assignment if he did not.

In May, Deputy Attorney General Rod. J. Rosenstein appointed Mueller as Special Counsel. Rosenstein did so as the Acting Attorney General, following the recusal of Jeff Sessions in any matters relating to the 2016 presidential campaign.  President Trump has expressed his anger with Sessions for his recusal decision.

As outlined in the appointment order, Mueller’s mission is to probe three things: (1) “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” (2) “any matters that arose or may arise directly from the investigation,” and (3) “any other matters within the scope of 28 CFR 600.4(a).”

Under this broad language, Mueller and his team may absolutely investigate Trump’s finances without crossing any “red line.” Since the days of Watergate, every prosecutor in a public corruption case has repeated the mantra to “follow the money.” This case should be no exception. Following the money helps investigators discern connections between people and organizations, identify witnesses and subjects, determine motives for conduct, understand the timing of events, and learn many other facts about a case.

It is standard practice in white collar cases to use grand jury subpoenas to obtain bank records, credit card records and corporate documents that are held by third parties, such as banks, financial services companies, corporations and government offices. In an investigation of coordination between the Russian government and the Trump campaign, obtaining these kinds of financial transactions would be essential to understanding any connections.

And this investigation will likely also permit Mueller and his team to see at long last what has been concealed from the American public – Trump’s tax returns. Tax records are routinely obtained in white collar investigations. Tax returns can show sources and amounts of income. Inconsistencies between tax returns and other financial records can also be a basis for a separate criminal charge of tax evasion.  Because of the sensitive nature of tax records, however, they cannot be obtained with a simple grand jury subpoena. Instead, a court order is needed to obtain tax records. This order, known as an “i” order because of the subsection of the tax code that authorizes it, requires a showing of reasonable cause to believe that a crime has been committed, that the return may relate to the commission of the crime, that the return information is for use in a federal criminal investigation, and that the information cannot be reasonably obtained from another source.

While not every financial transaction Trump has ever engaged in is fair game, Mueller and his team may seek any documents or question any witnesses about anything that is reasonably designed to lead to the discovery of admissible evidence showing links between the Russian government and Trump’s campaign.  And as the investigation progresses, and Mueller learns more about the facts, he may also seek evidence relating to any matter that arose “or may arise directly” from the investigation. That means that if in the course of investigating connections to Russia, Mueller discovers another crime, he may pursue that as well.

And then there is that third category in Mueller’s mandate. The regulation cited there provides that he may investigate and prosecute federal crimes committed to interfere with the investigation, such as perjury or obstruction of justice.  This section could certainly be used to investigate Trump and members of his family, such as Donald Trump, Jr., and Jared Kushner, who are likely already subjects of the investigation based on their meeting with Russians to obtain derogatory information on Hillary Clinton during the campaign. Even if their attendance at the meeting alone does not constitute an offense, any false statements written in security clearance forms or made to federal agents or Congress regarding this meeting could amount to a crime of false statements or obstruction of justice.

And the really interesting part of the regulation is that it further provides for “additional jurisdiction” if the special counsel concludes that a broader scope is necessary “to fully investigate and resolve the matters assigned, or to investigate new matters that come to light” in the course of his investigation. This “additional jurisdiction” may only be granted by the Attorney General after consultation.  Or, in this case, Rosenstein, because of the recusal of Sessions. The broad language of the order would permit Mueller to keep going after any crime he discovers and anyone who committed it.

Maybe this broad mandate is why Trump is so concerned that he lacks a loyal leader at the Department of Justice.

Another Saturday Night Massacre?

By ACS President Caroline Fredrickson

“The Events of recent weeks have eerily reminded me of those Watergate days,” stated William D. Ruckelshaus, who resigned as President Nixon’s Deputy Attorney General after refusing to fire Special Prosecutor Archibald Cox.

Ruckelshaus joins a growing chorus of Republican advice-givers concerned about Trump’s reported desire to fire Special Counsel Robert Mueller. His opinion piece in today’s New York Times (“A ‘Saturday Night Massacre’ Veteran Offers Trump Some Advice) tracks a comparison of Nixon and Trump created by the ACS.

A Self-Pardon?

Last Friday, the Washington Post reported that President Donald Trump has consulted his lawyers about granting pardons in the Russia investigation, including the possibility of a self-pardon. That would stand in stark contrast to the Department of Justice’s Office of Legal Counsel (OLC) determination that a president cannot pardon himself. In 1974 under Richard Nixon, OLC stated: “Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.”

Over the weekend, the pardon debate continued. President Donald Trump claimed in a Saturday morning tweet that he has “complete power to pardon” his associates and, perhaps, himself.  A week earlier, on ABC’s This Week, Trump’s personal lawyers, Jay Sekulow, had refused to rule out the possibility that the president would pardon his associates, or even himself, in the Russia investigation. Sekulow walked back his previous statement on July 23, stating that “pardons are not on the table,” despite the Post reporting. Interestingly, he asserted that the idea of a presidential self-pardon is an open question that should be resolved in court.

One of the bedrock principles of our Constitution is that no one, including the President, is above the law. Supreme Court Justices from John Marshall to Neil Gorsuch have declared that we are a nation of laws and not of individual leaders. It is astonishing that Trump, six months into his term, would contemplate acts that—if upheld—would pave the way for presidential impunity.

It would be clearly dishonorable and politically disastrous for Trump to use the pardon power to short circuit legitimate investigations into the connections between his associates and Russian election interference. However, the legal questions about the scope of his power are not quite as clear.

Article II, Section 2 of the Constitution vests the president with the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” It is an incredibly broad grant of power. There are two universally recognized limits on the pardon power. First, the president’s pardon power is limited to federal offenses enforced by federal prosecutors. States may continue to vindicate their laws against federal officials, subject to immunity doctrines that are unrelated to pardon power and beyond this post. Second, the Constitution explicitly states pardons are ineffective against impeachment and removal from office.

It is pretty clear that the President can pardon people for criminal acts they have committed but for which have not yet been convicted, or even indicted. The Supreme Court in Ex Parte Garland, 71 U.S. 333, 380 (1866) said “the [pardon] power … extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” The most infamous example was President Gerald Ford’s pardon of Richard Nixon shortly after assuming office. While there was some debate about the legality of a prospective pardon, it has been done frequently. Andrew Rudalevige does a nice job of recounting the history of high profile prospective pardons, including President George Washington’s pardons of Whiskey Rebellion leaders, President Jimmy Carter’s clemency of Vietnam draft dodgers, and President George H.W. Bush’s pardons of Iran-Contra figures. A 1995 Office of Legal Counsel opinion notes presidents throughout U.S. history “have asserted the power to issue pardons prior to conviction, and the consistent view of the Attorneys General has been that such pardons have as full an effect as pardons issued after conviction.” It cites a pre-Civil War attorney general opinion that described pardon power as “the act of clemency and grace is applied to the crime itself, not to the mere formal proof of the crime.”

A self-pardon is a much more consequential, and legally contested, issue. Three days before Nixon resigned, OLC issued its short opinion that “[u]nder the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” Many legal experts have supported that view, although the arguments as to why vary. Some argue natural law first principles such as OLC did (“no man can be a judge in his own case”). Some have argued a self-pardon would violate constitutional structure in that a self-pardon would defeat the purposes of Article I, Section 4, which expressly authorizes officeholders removed by impeachment to be subject to criminal prosecution. Others make a textual argument that the meaning of “grant…Pardons” requires two parties to the transaction: a President and a pardonee, where the pardonee cannot also be the pardoner. On the other side of the debate, there are several legal commentators who believe a self-pardon is constitutional because it is not expressly prohibited.

In any event, a self-pardon would be wholly unprecedented. For the legal question to be resolved, several recently unthinkable steps would have to take place. First, the President would have to seek to pardon himself. Second, he would have to be indicted by a federal grand jury, either during office (its own hotly contested proposition) or after he leaves office by means of impeachment or the expiration of his term. Then, the President’s move to quash the indictment on pardon grounds would present the legal question for federal courts to address on the path to final resolution by the Supreme Court.

As Chief Justice Marshall noted in Marbury v. Madison, the United States has been emphatically termed “a government of laws, and not of men.” In the absence of responsible stewardship of the rule of law by our President, we must ensure that our legal and political culture—We the People—preserve the Republic.

If the Rumors are True: President Trump and the Firing of Bob Mueller

by Steve Vladeck, Professor of Law, University of Texas School of Law

The front page of Friday’s Washington Post includes a story about the Trump Administration quietly investigating ways of firing Special Counsel Robert S. Mueller III or otherwise shutting down his ongoing (and apparently widening) investigation into Russian tampering in the 2016 presidential election. While there are three possible avenues through which Mueller could legally be removed, which I outline below, it is possible that any or all of these moves could themselves be treated as obstruction of justice, whether by the Special Counsel (if it somehow survives the affair) or Congress in impeachment proceedings. That is to say, even if the President lawfully has the power to fire someone, that doesn’t mean such action is completely unlimited. (For instance, the President could not fire an at-will employee simply because of their race, religion, or sex.)

And this leads to perhaps the most important bottom line: The complexities of the legal issues aside, what is hopefully clear is that the President has a fair amount of legal authority to act, or to at least attempt to act, in this space—authority that Congress has not meaningfully sought to circumscribe since it enacted the independent counsel statute in 1978. But as the obstruction point underscores, the real question is not whether the President has a legal right to fire Special Counsel Mueller, but whether such a legal move might nevertheless provoke his current supporters in Congress to turn against him—or, at the very least, to more aggressively support other investigations into the current Administration and the Trump campaign.

I.                  The Direct Termination Route

The Special Counsel is governed by a federal regulation, 28 C.F.R. part 600, which dates to 1999. Under one provision of the regulation (28 C.F.R. § 600.7(d)), “The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General.” The regulation further provides that “The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies,” but the regulation does not clearly create a right on the Special Counsel’s part to challenge a removal decision on the ground that it’s for some other reason.

Critically, the “Attorney General” here, as Mueller’s appointment itself suggests, is not Attorney General Sessions, who has recused (apparently to President Trump’s chagrin) from Russia-related matters. Instead, it is the Acting Attorney General, which, per the current Executive Order on DOJ succession, is the Deputy Attorney General (Rod Rosenstein). If President Trump wanted to fire Mueller directly, presumably, he would order Deputy Attorney General Rosenstein to do so. Rosenstein could either comply or resign, at which point we would start marching down the DOJ line of succession—which, at the moment, goes from Rosenstein to Associate Attorney General Rachel Brand, and from Brand to Dana Boente, the U.S. Attorney for the Eastern District of Virginia. As with the Saturday Night Massacre, President Trump could keep firing DOJ officials who refused to fire Mueller until he finds one (in Nixon’s case, Robert Bork) who will.

The upside of the direct termination route is that it is, well, direct. It is also legally unassailable. The downsides are two-fold: First, a repeat of the Saturday Night Massacre would surely have significant reverberations on Capitol Hill (where Mueller is widely respected), and might finally provide the basis for a decisive wedge between congressional Republicans and the White House. Second, and more practically, firing Mueller would not actually end the investigation—which is now well-staffed and well underway. Instead, it would then fall to whoever fires Mueller to appoint someone to succeed him, since the regulation (perhaps deliberately) does not provide a means for anyone other than the Special Counsel to terminate an ongoing investigation.

II.               The Regulatory Repeal Route

This leads to the second possible option—and one designed to destroy the investigation—which is to simply repeal or otherwise rescind the governing regulation, 28 C.F.R. part 600. How easy (or hard) this would prove to be depends to at least some degree on whether those regulations are treated as a “legislative” or “non-legislative” rule for purposes of the Administrative Procedure Act (APA). The former require all of the procedural accoutrements of administrative law before they can be rescinded, include public notice and comment; the latter do not. (As Professor David Franklin wrote last year, “it turns out to be maddeningly hard to devise a test that reliably determines which rules are legislative in nature and which are not.”) To be fair, the Special Counsel regulation has some of the hallmarks of legislative rules (which are harder to repeal). But even if the Executive Branch claims that the Special Counsel regulation is a non-legislative rule (and, indeed, even if it is ultimately correct on that score), it is not hard to imagine that there will be litigation over that issue—litigation that could take time before definitively resolving the matter. All the while, presumably, the investigation could continue apace.

III.           The Unitary Executive and the Nuclear Option

This leads to the third—and most controversial—possibility, that the President will invoke his constitutional authority as a wedge against either Mueller’s appointment specifically or the existence of the Special Counsel in general, and will issue an Executive Order terminating Mueller, abolishing the Special Counsel in its entirety, or both. The difference between this approach and the second option outlined above is that this one would not depend upon the vagaries of federal administrative law, but instead posits that the President would assert as a constitutional matter that he cannot be stopped from firing a Special Counsel and/or shutting down an investigation—an assertion of authority that could not be reconciled with either the terms of 28 C.F.R. part 600 or the existence of the ongoing investigation. And the pursuit of this option would, without question, trigger a constitutional showdown between the Special Counsel and the President, of the likes not seen since the fight over the Watergate tapes that culminated in the Supreme Court’s July 1974 ruling in United States v. Nixon.

As for who would win such a constitutional showdown, who knows? But one has to suspect that such an assertion of indefeasible executive power would not sit well with Congress, and might, at the very least, ratchet up the pace and scope of the congressional investigations even if/as the Special Counsel’s criminal investigation hangs in the balance.

The Ideology of Textualism

Advocates of textualism promote it as a neutral, objective, apolitical theory of interpretation — one that is above ideology. Whenever you hear a judge describe himself or herself as a “rule of law” judge, you can bet that the judge is a textualist. A textualist supposedly respects the democratic process and does not impinge on the legislature’s role. He or she adheres to established and well-founded canons of construction in merely “interpreting” law. As Justice Gorsuch put it in his first majority opinion (page 11), “[T]he proper role of the judiciary [is] to apply, not amend, the work of the People’s representative

That is the mantra. But the reality is altogether different. Textualism has become the brand of conservative judges and judging. And there is in fact strong — if not incontrovertible — evidence that textualism, as practiced, produces conservative results.

Two years ago, I posted on the ACS blog about an article I had written summarizing six empirical studies of Justice Scalia’s opinions. The studies show that those opinions had an unmistakable ideological bent. Justice Scalia was, of course, a leading exponent of textualism.

Now I have published a detailed study of 96 overrulings by the Michigan Supreme Court over 15 years, 2000–2015. Throughout that time (except for a period of months in 2010), justices nominated by the Republican party or appointed by a Republican governor were in the majority on the court. Those justices are professed textualists.

In my study, I coded the civil cases according to whether they made it harder to sue and recover or get relief, or made it easier to sue. I coded the criminal cases according to whether the overruling favored the prosecution by making it easier to convict, harder to get a charge dismissed, harder to appeal, harder to get a resentencing, and so on — or whether the overruling favored the defendants in some way. Of the 96 overrulings, 15 did not fit these categories, leaving 81.

Take a wild guess at the results. I am betting that even most cynics would not imagine how extreme the numbers are. In 46 of 48 civil cases, Republican majorities voted in a way that makes it harder for plaintiffs to successfully sue. In 32 of 33 criminal cases, Republican majorities favored the prosecution. All told: civil plaintiffs and criminal defendants lost in 78 of 81 overrulings, for an ideology rating of 96.3.

Some would say that a simple tally of winners and losers is superficial. My response (p. 355): “I disagree. Lopsided numbers matter. That civil plaintiffs and criminal defendants ‘won’ in just 3 of 81 overruling cases is damning on its face — and cannot be rationalized by any jurisprudence that is evenhanded.”

Equally extreme is the narrow definition of ambiguity that the Republican majority adopted: language is ambiguous only if it is “equally susceptible” of more than one meaning. So is a 55% certainty enough to render a text clear? Few, if any, other courts apply such a strict test. One commentator describes it (p. 358) as “[i]nconsistent with centuries of American judicial practice.”

The article also looks at some favorite textualist devices: overreliance on “plain meaning” or “plain language”; resort to dictionaries (a practice that scholars have shown to be ad hoc, subjective, and of modest value at best); and the use of weak canons like the surplusage canon (which many scholars again roundly criticize and which does not reflect how legislative drafters actually compose). Finally, the article examines four overruled cases to show how close they were and why the disputed language was, in context, anything but plain.

My kick is not so much against judges’ leaning one way or another, liberal or conservative. The legal world would be better off if they did not, but they do: judges are influenced, consciously or unconsciously, by their beliefs and inclinations — their so-called priors. My kick is against not recognizing or admitting two truths: textualism is as squishy as any other theory of interpretation; and in cases that shape the law, it is put to ideological ends.