Day 434: Trump’s Brutal Choice on Pardoning Manafort, Flynn

Trump’s decision has a ton of personal risk on each side.

Donald Trump’s lawyer privately floated the idea of pardons for Michael Flynn and Paul Manafort to their attorneys as Robert Mueller’s investigation heated up, according to a report from The New York Times.

A lawyer for President Trump broached the idea of Mr. Trump’s pardoning two of his former top advisers, Michael T. Flynn and Paul Manafort, with their lawyers last year, according to three people with knowledge of the discussions.

The discussions came as the special counsel was building cases against both men, and they raise questions about whether the lawyer, John Dowd, who resigned last week, was offering pardons to influence their decisions about whether to plead guilty and cooperate in the investigation.

The Times further reported that Trump himself discussed the possibility of pardons.

During interviews with Mr. Mueller’s investigators in recent months, current and former administration officials have recounted conversations they had with the president about potential pardons for former aides under investigation by the special counsel, according to two people briefed on the interviews.

In one meeting with lawyers from the White House Counsel’s Office last year, Mr. Trump asked about the extent of his pardon power, according to a person briefed on the conversation. The lawyers explained that the president’s powers were broad, the person said. And in other meetings with senior advisers, the president raised the prospect of pardoning Mr. Flynn, according to two people present.

And as the Times noted, numerous questions arise as to whether a president’s broad pardon powers can be used to make an obstruction case against that president.

There’s no legal precedent from an American president trying to pardon his way out of potential legal trouble, so Trump’s decision is a risky one.

Just because there is a constitutional right to do something, doesn’t mean that there aren’t consequences for misuse. For instance, the Second Amendment gives Americans the right to bear arms. However, someone can still be criminally charged for an improper use of that weapon.

For Trump, the potential carrot of a pardon to stop someone from testifying or cooperating could be seen as witness tampering and obstruction of justice.

The federal statute for witness tampering, 18 U.S.C. § 1512, has a few sections that could cause legal issues for Trump.

The most prominent are sections (b)(1) and (b)(2)(A), which state:

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to —

(1)influence, delay, or prevent the testimony of any person in an official proceeding;

(2)cause or induce any person to —

(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding

(A similar section — (c)(2) — is broader and holds witness tampering to be anyone who “corruptly … otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”)

A pardon would almost certainly cause Flynn or Manafort to withhold testimony and any additional cooperation with Mueller. The issue would likely turn on the phrase “corruptly persuades.” Federal circuit courts interpret the phrase differently.

Section 1512(b) prohibits the corrupt persuasion of another person with the intent to impede an official proceeding. Unfortunately, courts apply different interpretations of § 1512(b), resulting in a troubling split among several of the federal circuit courts. These courts disagree about whether it is corrupt to persuade a witness to withhold testimony from an official proceeding when that witness has a legal right to do so.

While the Second and Eleventh Circuits hold that such conduct is within the coverage of the statute, the Third Circuit holds that such conduct does not necessarily amount to witness tampering. The key issue is whether corrupt persuasion requires mere persuasion motivated by an improper purpose (such as self-interest in impeding an investigation) or persuasion that involves otherwise wrongful means (such as bribery or inducement to commit perjury). Most recently, the Ninth Circuit joined the Third Circuit in adopting a narrow interpretation of the corruptly persuades clause.

If Trump pardons anyone involved in the Russia case, and Mueller opts to move forward against Trump for witness tampering or obstruction of justice because of it, the issue is certain to end up in front of the Supreme Court. If the Court adopts a broader meaning of what “corruptly” means, Trump is likely in legal jeopardy for his use of the pardon as long as Mueller can show that it was done to stop pardonees from participating in the investigation. If interpreted more narrowly, Trump could essentially pardon most people in the investigation to keep them quiet with little to no legal repercussions.

Of course, Trump won’t know the answer unless he actually does issue pardons and Mueller attempts to prosecute him for it. That leaves Trump in a tricky spot: if he doesn’t pardon Manafort or Flynn, both may cooperate to save their own necks, as many, including Flynn, are already doing. If Trump does issue pardons, he could be wading into a deeper legal quagmire.

On top of all of that, if Trump pardons anyone, while they will likely choose to no longer assist Mueller’s team, they can be compelled to testify and won’t be able to assert protection from self-incrimination under the Fifth Amendment. The Fifth Amendment only affords protection to those in legal jeopardy, which a pardon would remove.

Trump’s decision to pardon or not to pardon is fraught with risk on many sides, the correctness of which won’t be borne out until after the fact.

434 days in, 1028 to go

Follow us on Twitter at @TrumpTimer