Paul ManafortRobert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE and his special counsel team appears to be a desperate ploy designed to achieve a presidential pardon, which will fail, because Trump’s attorneys will advise him in ways similar to Paul John ManafortManafort attorney relayed info about Mueller probe to Trump lawyers: report Hillicon Valley: More problems for Manafort, Mueller | Employees push Google to drop China project | UK lawmakers lay into Facebook | Uber fined for breach | WH hopes for China trade ‘breakthrough’ Trump says he has ‘no intention’ of stopping Mueller investigation MORE ‘s betrayal and double dealing against what I wrote here.
I have long believed that the case for obstruction of justice involving efforts to impede the Mueller investigation is far stronger, based on publicly known evidence, than our public discussion would suggest.
Additionally, I would assert that while a president can lawfully pardon almost anyone, for almost any crime, a pardon could also be crucial evidence in support of an obstruction of justice case, and potentially an additional count in an obstruction of justice case.
If a pardon is offered to influence a witness in a criminal investigation, that pardon could indeed be a crime. There has been evidence that earlier in the case, Trump’s lawyers discussed a pardon with Manafort’s lawyers.
It has been reported as well that Trump’s former White House counsel, Donald McGahnDonald (Don) F. McGahnBoth political parties guilty of weaponizing impeachment More questions than answers in too many Trump stories Exclusive: Giuliani on Clinton – ‘Of course she should be investigated’ MORE , has spent many hours cooperating with Mueller and his team. Could McGahn have provided evidence about these alleged pardon discussions?
It is now reported that Manafort was essentially double-dealing against Mueller and his investigators, with his lawyers allegedly reporting confidential information to Trump’s lawyers about his discussions with Mueller while he was supposedly cooperating with Mueller.
If Trump does pardon Manafort, there is a high probability that these matters are ultimately litigated before and decided by the United States Supreme Court.
If Trump does pardon Manafort, the public firestorm of anger and outrage would be so extreme that impeachment consideration would probably be initiated even by a Republican House, and certainly by a Democratic House in January.
The smart move for Senate Republicans would be for them to immediately provide protections for Mueller against a Saturday Night Massacre and to publicly and privately warn Trump to not pardon Manafort or move against Mueller.
However, Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellPence, Kushner huddle with Senate GOP on criminal justice reform Bipartisan budget reform effort hits roadblock in final days McConnell: Saudi actions ‘abhorrent’ and warrant ‘response’ MORE (R-Ky.) appears to be making the same mistake after the midterm elections that House Republican leaders made before the midterms.
The most under-discussed aspect of Trump’s involvement in the Russia investigation is the statute of limitations. The statute of limitations for any potential crime that Trump is alleged to have committed would be a minimum of five years from the date that alleged crime was committed.
Let’s assume hypothetically that Trump is not re-elected president in 2020 and leaves office in January 2021. In this case, under the statute of limitations, if Trump theoretically had committed any crime during the five previous years, he would not be protected by the statute of limitations.
Trump’s lawyers all know this, and have undoubtedly advised him of this. Trump’s lawyers also know that a federal pardon would not protect him from any theoretical state crimes and have undoubtedly advised him of this as well.
Additionally, if Manafort is pardoned, he would almost immediately be required by Mueller to testify before a grand jury, under penalty of perjury, and would have to testify truthfully, or he would be indicted for new crimes of perjury that would not be covered by the pardon. Trump’s lawyers all know this, and have undoubtedly advised him of this as well.
In other words, if Trump pardons Manafort, he protects Manafort only to the degree that Manafort tells the whole truth to the grand jury after the pardon.
A pardon would not protect Trump, unless Manafort’s testimony to the grand jury clears him, but if this were the case, Manafort would simply tell this story as part of his cooperation agreement with Mueller.
If Manafort is assuming that Trump will pardon him, he is playing a dangerous game with a very high likelihood that Trump is warned by his lawyers to not pardon him, that he will still be indicted in state courts and that he will be forced to testify before the grand jury after the pardon.
A Trump pardon of Manafort will be disaster for Trump, Manafort and congressional Republicans alike.
Brent Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the U.S. House of Representatives. He holds an LLM in international financial law from the London School of Economics.