Below is my column in The Hill newspaper on Giuliani’s statement that the President may “clean up” the entire Mueller investigation with a slew of pardons at the end. After causing an outcry, Giuliani later said that the President would not pardon anyone under investigation. That led to utter confusion, again, about what Giuliani is saying and whether the original statement remains valid for pardons after the investigation.
Here is the column:
After a few weeks on the job, President Trump’s attorney Rudy Giuliani is beginning to sound like the Vince Shlomi of constitutional law. Shlomi became a household name for his mesmerizing low-grade “ShamWow” commercials promising a towel that “holds 20 times its weight” and “doesn’t drip, doesn’t make a mess.” He would ask, “Why do you want to work twice as hard?” when you could just pull out a ShamWow.
Asked about the jailing of former Trump campaign chairman Paul Manafort for witness tampering, Giuliani declared, “Things might get cleaned up with some presidential pardons.” The only thing missing to complete the Shlomi comparison was a picture of a pardon soaking up a bowlful of special counsel Robert Mueller’s indictments.
The pardon power is not a ShamWow for presidents to clean up scandals. True, the Constitution gives a president total discretion in the granting of pardons and commutations. However, it was not designed, and should not be used, to protect figures like Manafort or Trump personal attorney Michael Cohen. Shortly after Manafort was thrown into jail pending trial, Trump lamented, “Wow, what a tough sentence for Paul Manafort, who has represented Ronald Reagan, Bob Dole and many other top political people and campaigns. Didn’t know Manafort was the head of the mob.”
In waving around the pardon power, Giuliani essentially offered a Shlomiesque, “Not wow, Mr. President, ShamWow!” The problem is that Manafort would be the least compelling pardon recipient since President Clinton pardoned his own half brother and Marc Rich, a fugitive Democratic donor. It is true that Manafort is not “the head of the mob,” but he is facing compelling allegations of an array of criminal acts running the gamut of the criminal code. Indeed, the list of indictments would have made mob boss John Gotti blush.
For months, I have written about Manafort’s longstanding reputation for being reckless. It was the reason some observers expressed surprise when he was chosen as Trump’s campaign chairman. He is now accused, however, of an act of sheer stupidity that is truly breathtaking: A grand jury indicted him on additional charges of witness tampering after he allegedly tried to coach witnesses over the telephone while under the continual monitoring of a house arrest.
Trump has complained that Manafort is being prosecuted for things that happened “12 years ago.” However, that is why a pardon would be so problematic. Most independent observers view the charges against Manafort as exceptionally strong. Trump would need to pardon him for crimes ranging from fraud to conspiracy and witness tampering to money laundering and tax violations to false statements.
The same is true with Michael Cohen. This pardon talk notably got louder when reports surfaced that Cohen had fired his lawyers and was considering “flipping” as a cooperating witness. However, he also faces a long list of criminal allegations, ranging from business fraud to tax violations to lobbying violations to false statements. The vast majority deal with dubious business practices unrelated to the Trump campaign.
While it is true that none of these alleged crimes might have been identified had Manafort and Cohen not assumed such visible positions, that does not mean they are not criminals or should not be punished for their crimes. In the end, pardons could certainly keep associates loyal and uncooperative with prosecutors, but a pardon may not be quite as legally absorbent as Giuliani suggests. A president cannot pardon away future crimes. Thus, Manafort and Cohen could be called to testify under oath and could be charged with any new acts of perjury or other crimes. A pardon would make it more difficult for the men to refuse to testify under their privilege against self-incrimination.
Finally, a presidential pardon does not protect against state crimes, which, for Cohen, is a particular concern. Giuliani noted that a potpourri of pardons could come “when the whole thing is over.” It is not clear what that time frame might mean. Ironically, if Mueller is slow-walking the investigation, Giuliani’s words would encourage him to reduce that to a glacial pace. Yet, if it comes too early, they could still be forced to testify and require a daisy chain of pardons for any new false statements or criminal acts. The pardons would also have to cover not only the alleged crimes being investigated by Mueller but alleged crimes uncovered by career prosecutors in the Southern District of New York.
Presidential pardons were meant to address manifest injustices. No matter how you feel about the original basis of the special counsel investigation, it is hard to say that the prosecution of Manafort or Cohen would be an injustice to any degree. Indeed, using this power to relieve them of any accountability for crimes worth tens of millions of dollars would be a manifest injustice. They agreed to take high-profile positions and, when one does so, one accepts greater scrutiny. Hence the old expression, “One day on the cover of Time, next day doing time.”
Trump is correct that he and his campaign had nothing to do with these crimes. That is the point: Just as Manafort and Cohen should not be accused of crimes simply because of their connection to Trump, they should not be excused for prior crimes on the same basis. If Trump is going to grant immunity for any crime of any kind at any time, all of the ShamWows in the world won’t absorb the stain that would be left behind.