Should Trump pardon Cohen?

When Donald Trump was asked this week about the much discussed possibility of a pardon for his personal attorney, Michael Cohen, the president snapped back, calling it a “stupid question.” While insulting for the White House press corps, it must have been a welcomed response for the White House counsel.

Despite indications that Trump has been looking into the use of his pardon authority, and may have laid a foundation with his recent pardoning of former Bush administration official Scooter Libby, a pardon for Cohen would not deliver either Trump or Cohen entirely out of harm’s way. Moreover, it could make things far worse.

{mosads}A pardon would certainly fit the profile of “fixer” Cohen, who rarely relied on the legal process to achieve his goals. Cohen often threatened people with lawsuits but rarely actually filed them. Indeed, the one defamation lawsuit he filed against Fusion GPS and BuzzFeed was dropped last week. What Cohen offered Trump was not legal ability but absolute loyalty. However, much like Cohen’s other “fixes,” this move would be both short sighted and self defeating.

For a year, some of us have cautioned Trump that Cohen represents a growing threat to his presidency and that he should sever contact with him. Instead, the president brought Cohen even closer with a recent dinner at Mar-A-Lago, glowing tweets and a public statement that he remains his attorney and speaks for him.

In the meantime, Cohen has made wrong move after wrong move, maximizing the risk to Trump and himself. This includes the colossally stupid move to take the bait of Michael Avenatti, the attorney for Stormy Daniels, and entering the California case to enforce Cohen’s flawed nondisclosure agreement. Cohen simply could have defaulted or waived. Instead, he put himself and his client into litigation and possible discovery with a veteran litigator and a former porn star.

Trump may have followed his instinct that, by keeping Cohen close, he could reaffirm that anything Cohen knew would be covered by attorney-client privilege. If so, he did not consult with a competent lawyer. Cohen undermined Trump’s confidentiality defenses in every possible way. The key to using attorney-client privilege is to secure the services of a lawyer who can maintain clear lines of representation and confidentiality.

Instead, Trump picked Cohen. With privilege arguments waning, pardon arguments have surged. The problem with the pardon strategy is that it may succeed in the impossible of being both too early and too late. In pardons, timing is everything, and the timing could not be worse for Trump and Cohen. If Trump is looking for a Goldilocks pardon that’s “just right,” he will not find it here.

Trump can certainly pardon Cohen for prior federal crimes. Indeed, the pardon power under Article II of the Constitution covers not just pardons but commutations and conditional commutations, as well as remissions of fines and forfeitures, respites and amnesties. However, these acts cover past, not future, crimes. A president cannot bestow immunity upon an individual who can then violate federal law with impunity.

Thus, Trump can pardon Cohen for uncharged crimes that he committed but with which he has not been charged, let alone convicted. That would not prevent prosecutors from calling Cohen to a grand jury or trial to testify under oath. Cohen could invoke the Fifth Amendment, but a strong argument could be made that a pardon eliminates the threat of “self-incrimination,” thereby barring use of the Fifth Amendment. Any contempt or false testimony or obstruction could still be charged as a new crime, requiring Trump to daisy chain pardons, which would push him further toward an impeachment.

Then there is the possibility of state charges. States remain “separate sovereigns” and Article II only allows Trump to pardon for “offenses against the United States.” New York Attorney General Eric Schneiderman, a Democrat, has called for a change in state law to allow state charges even in cases where a defendant is the recipient of a pardon. Since Cohen is being investigated for crimes that could be brought under both federal and state codes, including alleged crimes related to his taxi medallion business and bank fraud, such charges are a real possibility.

Finally, there is the problem that prosecutors seized a trove of material linked to Cohen’s business and legal dealings, including reportedly taped conversations with clients and associates. Such recordings without consent would be presumptively unethical and clearly reckless, but this is Cohen. A pardon will not require such material to be returned to Cohen so long as it is relevant to a criminal case. Unless Cohen is the only possible defendant tied to the evidence, this material could still be deemed material to an ongoing investigation in New York or Washington. State prosecutors routinely share evidence with federal prosecutors.

A pardon could well diminish any inclination of Cohen to “flip” against the president. Prosecutors would have less to offer. Yet, a pardon also would fall short of everything Cohen needs. He would remain a “fix it man” in a fix. Thus, the “stupid question” at the White House should not be about the possibility but the contemplation of a pardon. The greatest threats to Trump have come from self-inflicted wounds, and this would be one of them. With one or both houses of Congress poised to change hands, Trump needs to think less of the unlikely prospect of prosecution for collusion and more about the rising danger of impeachment.

A pardon for Cohen for crimes unrelated to the Russian investigation would lay the foundation for an impeachment push after the midterm elections. While Trump would not be without defenses to such an impeachment count, it fits a narrative of obstruction for his critics. Moreover, even if it is not ultimately considered a high crime and misdemeanor, it would still be wrong.

Just as Bill Clinton abused the pardon power by using it for his brother as well as a fugitive Democratic donor, Trump would abuse this power by using it to protect a personal friend and business associate. So the president is right about the stupidity of the pardon question, so long as he remembers, as Forrest Gump warned, “stupid is as stupid does.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.