Trump still has his pardon card to play — but the move will be tricky

All the Beltway commentators – cognoscenti or not – seem to believe President Trump sits at his desk in the Oval Office, in the wake of the actions by Special Counsel Robert Mueller, focused on the deck of cards in his hands, deciding precisely when (or, arguably, if) to play the “pardon card.”

Whether they’re right or wrong – that is, that Trump’s priority is now how to deal with Mueller’s heat-seeking investigation — using a president’s pardon power clearly has significant tactical considerations. And they are considerations that perhaps he, not a lawyer, might not be thinking of. Certainly, his lawyers are, but one can never know how their advice will be received.   

{mosads}To be clear, we don’t ascribe in any way to a strategy to use the pardon power to hamper a criminal investigation, but rather assess, here, what might be going on. Indeed, the president’s interest in pardoning anyone would likely be designed to best inhibit Mueller from extracting incriminating evidence, and best protect himself.   

So, if the president, now faced with the first of the Mueller indictments, is bent on a strategy to use the pardon power “strategically,”  he would likely ask:

• Is it tactically better to pardon individuals potentially in the line of fire now, or would he be better off waiting until they’re truly in jeopardy of going to jail?
• Does a pardon wipe clean the slate of all charges, including potential state criminal charges?
• Finally, if the president were to pardon someone in a position to incriminate  the president directly, could that result in a criminal obstruction charge against the president, or even an impeachment offense?

Pardons were designed to be an important corrective to injustice, and presidents have an unbridled authority to grant a pardon for federal offenses — a Constitutional right, indeed.

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— The Hill (@thehill) November 3, 2017

As for timing, if one were inclined to use it strategically, a president would be wiser to wait to see if exercising a pardon will really be necessary to his purpose. For example, even if former Trump campaign chairman Paul Manafort is convicted and positioned to incriminate the president (or someone close to him), he likely won’t go to jail for years. So why would the president pull the trigger on a pardon grant that may not be necessary to contain Manafort – who might, after all, be acquitted at the end of the day – and will undoubtedly cause a giant political uproar against the president when it is invoked?

On the other hand, assuming Manafort actually has “the goods”  (who knows better than the president) why would Trump let him linger in purgatory thinking the president can’t be trusted to pardon him before the jailhouse doors are about to close behind him? A person in that state of anxiety suffering from the real possibility of jail, may simply say to himself: “I need to protect myself, and not leave myself in the hands of someone I don’t trust.” A tough call for the president.

Another “timing” issue is whether granting a pardon immediately deprives the pardoned individual of his fifth amendment right to decline to answer questions if the answers are self-incriminating. Take Manafort, hypothetically. If the president pardoned him today, Mueller could theoretically summon him to the grand jury tomorrow to testify against Trump or anyone against whom he has information to provide.

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— The Hill (@thehill) November 3, 2017

If he refuses, invoking the fifth amendment, Mueller could obtain a court order according Manafort immunity from federal prosecution – essentially giving Manafort ice in winter because the president will have already pardoned him for anything that might theoretically incriminate him (yes, the president can pardon for crimes not yet charged – viz., the President Ford pardon of Richard Nixon).  

Then – and I am not suggesting this would be the case – there is nothing that could stop Manafort from testifying; although, one supposes, if one were loyal to a president who has pardoned him, one might theoretically perjure himself to protect the president, opening himself up to another crime.   

As for whether a pardon wipes clean all potential charges, a president cannot pardon an individual for state offenses. So, if a state prosecutor, such as New York’s Attorney General or the New York County District Attorney (both of whom are reportedly investigating Manafort independently of Mueller) were to charge Manafort for any offense, he will not be pardonable for the state offenses even if they are the same offenses.

So, if the state brings charges that have a state analogue, or even unrelated and different  state offenses, the pardon power will reside in the New York’s governor. What is the possibility that Governor Andrew Cuomo will pardon a Trumpista anytime soon? Meaning, Trump can pardon every individual close to him who has anything to say, but if state prosecutors bring charges against them for the same or different offenses, they will still remain exposed, and theoretically so will the president.    

JUST IN: Trump blaming Kushner for Mueller’s investigation: report https://t.co/IQz8hSZ7SX pic.twitter.com/cPgiA3IVww

— The Hill (@thehill) November 1, 2017

And so, turning to the real issue – can a presidential pardon constitute an obstruction of justice? Suppose Mueller can establish – perhaps through a witness in the White House, maybe even a witness who recorded his conversations with the president (speculation over whether Papadopoulos wore a wire should make the president concerned about that possibility) – that the pardon’s purpose was to “shut down” the potential testimony of that individual, say Manafort.

One could argue that although President George H.W. Bush’s pardon of Defense Secretary Caspar Weinberger may indeed have had “cover-up” of Iran-Contra as its purpose, President Trump shouldn’t be sanguine about Mueller’s willingness to stand down if the president employs the pardon power.  Particularly given Mueller’s likely view that Trump’s firing of FBI Director Comey was part of an effort to derail an investigation of Russian/Trump campaign collusion in the 2016 presidential election.      

The president tends to be extremely reflexive and impulsive regarding how he deals with crises. His attorneys must make sure that they stand as roadblocks to his impetuousness. They must also stand as roadblocks to his engaging in potentially criminal or impeachable offenses.  

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. An adjunct professor at Fordham Law School, he regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications and is the author of “Broken Scales: Reflections on Injustice.”