Why Trump Isn’t Pardoning Allies Caught in the Mueller Probe — Yet

Michael Flynn may come after Martha Stewart, and Rod Blagojevich. Photo: JIM WATSON/AFP/Getty Images

Kim Kardashian West went to the White House on Wednesday to ask President Trump to show mercy to a 62-year-old great-grandmother serving a life sentence without parole for a nonviolent drug offense. Instead, the next day he pardoned right-wing troll Dinesh D’Souza and hinted that he might do the same for Martha Stewart and former Illinois governor Rod Blagojevich.

As usual, this sparked a lot of theorizing about what Trump’s bizarre behavior might actually mean. If you look at the six people Trump has pardoned or granted clemency, plus those under consideration, a self-serving pattern emerges. These days you’re likelier to get a pardon if:

• You’re famous (Joe Arpaio, Jack Johnson, Stewart, Blagojevich)
• Trump knows you personally (Arpaio, Stewart, Blagojevich)
• Your pardon will annoy liberals (Arpaio, D’Souza, Lewis “Scooter” Libby)
• Your case was handled by one of Trump’s enemies, like Preet Bharara, James Comey, or Comey pal Patrick Fitzgerald (Stewart, D’Souza, Blagojevich, Libby)
• You have Fox News personalities pleading your case (Arpaio, Libby, Sholom Rubashkin, Kristian Saucier)

But many insist there’s also a larger strategy at play: Trump is trying to tell his allies caught up in Special Counsel Robert Mueller’s probe that if they hold strong, he’ll make sure they get a pardon.

One former White House official shot down that idea, telling BuzzFeed he doesn’t think Trump is playing “the sort of three-dimensional chess people ascribe to decisions like this. More often than not he’s just eating the pieces.”

But regardless of Trump’s intentions, it seems that’s the message at least one of his associates is taking from the pardons. Former Trump strategist Roger Stone told several outlets that the president’s moves are clearly about the Russia probe.

“It has to be a signal to Mike Flynn and Paul Manafort and even Robert S. Mueller III: Indict people for crimes that don’t pertain to Russian collusion and this is what could happen,” Stone, who’d drawn Mueller’s attention himself, told the Washington Post. “The special counsel has awesome powers, as you know, but the president has even more awesome powers.”

When asked about D’Souza’s pardon, Stone told the Daily Beast, “I hope General Flynn is next.”

It’s possible that’s where all of this is heading, but Stone is probably going to be disappointed. While Trump tweeted months ago that the president “has the complete power to pardon,” there’s a reason he’s currently focused on using his awesome powers to help out people who appeared on The Apprentice. Here’s why the promise of Trump’s mercy — not an actual pardon — is the best people like Flynn and Michael Cohen can hope for right now.

If You’re Pardoned You Can’t Plead the Fifth

Three people involved in the Trump campaign — Flynn, George Papadopoulos, and Rick Gates — have pleaded guilty and are cooperating with Mueller. Paul Manafort has been indicted on many charges and the special counsel is believed to be pressuring him to flip on Trump, but so far he’s resisted. Michael Cohen has been under criminal investigation for months, but has yet to be charged.

Trump has the power to pardon all of these men, regardless of whether they’ve been charged. As the New York Times notes, the Supreme Court ruled in 1866 that pardons can be offered at any time after a federal crime is committed, “either before legal proceedings are taken or during their pendency or after conviction and judgment.” The most famous example is President Gerald Ford granting President Richard Nixon a pardon for any federal crimes he “committed or may have committed” during his presidency.

However, issuing Russia-probe pardons at this point would be a very unwise move on Trump’s part, as his former associates would be unable to plead the Fifth Amendment if called to testify against him. The Fifth Amendment only protects against self-incrimination, so if someone like Manafort was no longer at risk of prosecution, he’d have no justification for refusing to answer questions about Trump.

On the other hand, Vox points out that once you start issuing pardons to protect your presidency, you might as well keep going:

[Trump associates] could always lie, and if proven to be lying and charged with perjury — well, Trump could just pardon them again. It would be a grotesque abuse of power, but it would be completely legal.

Pardons Might Not Thwart Mueller Completely

Mueller has reportedly been looking into the limits of Trump’s pardon power, and seems to be taking advantage of one well-known exemption: Trump’s pardon doesn’t apply to state crimes.

The special counsel has been working with state prosecutors, and the plea deals he’s cut are worded to allow for state charges. These maneuvers suggest Mueller has a “Plan B” in case Trump fires him or shuts down his probe in some other way.

It’s unclear if any of Trump’s associates will face state charges, and at this point it doesn’t make sense to push state prosecutors into action by issuing pardons.

Pardons Could Be Obstruction

Issuing pardons related to the Russia probe is a risky maneuver because if Trump’s motivation is preventing people from sharing damaging information about him, that could constitute obstruction of justice. The University of Chicago’s Daniel Hemel and Eric Posner explained in a New York Times op-ed:

Yet federal obstruction statutes say that a person commits a crime when he “corruptly” impedes a court or agency proceeding. If it could be shown that President Trump pardoned his family members and close aides to cover up possible crimes, then that could be seen as acting “corruptly” and he could be charged with obstruction of justice.

It’s also been argued that the president pardoning himself, or pardoning associates to benefit himself, might violate his constitutional duty to “take care that the laws be faithfully executed.”

This is uncharted legal territory, much like the question of whether a sitting president can be indicted. But Trump could be prosecuted after he leaves office, and it could be grounds for impeachment — an instance in which the power to pardon does not apply.

There Are Political Consequences — Theoretically

Several previous presidents have pardoned defendants in special-counsel investigations, but as FiveThirtyEight explains, these were usually granted years after the investigation began, or even long after the investigation ended. Some still had political consequences; Bill Clinton’s legacy was further tarnished by an investigation into his pardon of fugitive financier Marc Rich, and Ford never recovered from pardoning Nixon.

Trump has likely been advised that pardoning anyone connected with the Russia probe is a drastic measure that could spark a constitutional crisis and make his own party turn on him. Republicans have shrugged off so many of Trump’s outrageous actions that it’s increasingly easy to imagine them accepting a pardon. Still, at this point Trump doesn’t have a good reason to spark a standoff.

Presumably, that won’t always be the case. The White House hasn’t ruled out pardons for people involved in the Russia probe, and when asked back in December if he intends to pardon Flynn, Trump said, “We’ll see what happens.”

Duke University law professor Lisa Griffin told TPM that Trump may be biding his time, but eventually she expects him to make “very aggressive use” of his pardon power.

“I think it’s likely to come in the later stages of the Mueller investigation so as to preserve as many options as possible along the way,” she said.

Why Trump Isn’t Using Pardons to Thwart Mueller Probe — Yet