Columns, Congress, Constitutional Law, Criminal law, Politics

The Pardon Power Is Not A ShamWow For Presidential Scandals

downloadBelow 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.

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

 

177 thoughts on “The Pardon Power Is Not A ShamWow For Presidential Scandals”

  1. Portland – I am retired and my wife works. The dog and I have the house to ourselves for about 12 hours. 😉

  2. Dear Ms. Late: That is the point – you are searching and hypothesizing on probable cause AFTER special counsel set up and not before. You use creepy crawling investigation ensarements of prior sins by fringe players to justify special counsel investigation that was not grounded in probable cause from the start. Let’s look down any street in America and start door to door investigation because chances are you will find something if you keep knocking on doors with full support of federal government behind you.

      1. Everyone does not have a swank basement with weasel access and an unlimited supply of cheetos like you, warrior.

        1. Tony – when are you going to get it through your thick skull that there are very few basements in The Valley of the Sun? I do not have one of them. BTW, I do not like Cheetos either. When are you going to get something right?

    1. http://www.startribune.com/c-j-richard-painter-works-the-nerves-of-some-gopers-the-way-he-once-tickled-the-ivories/450512043/

      “Q: A friend and lifelong Republican recently said she didn’t think she could be Republican anymore because she now has black grandkids. What’s with the Republican Party?

      “A: The Republican Party is the party of Abraham Lincoln. I thought [it] stood for racial equality from the beginning. But over the years we’ve had corruption infiltrate the party, extreme right-wing elements and various other undesirables. It’s most unfortunate. It wasn’t that long ago that the Republican Party had credibility in the African-American community and many parts of the country. We’re just not there right now.”

      1. “It wasn’t that long ago that the Republican Party had credibility in the African-American community and many parts of the country.”

        We are all from Africa originally.
        We are all Americans.
        Blacks lost respectability in blacks long ago hence the sordid black on black violent crime rates

        Painter is as credible as any other Dim….zero

          1. Our very remote ancestors are. Try learning some anthropology instead of waving your ignorance around widdershins.

            1. David Benson still owes me three citations after a month, one from the OED, and the source of a quotation – speak for yourself, I am descended from Greek and Roman gods and am immortal.

  7. Frankly, I would not have been outraged at pardons for Cheryl Mills and Huma Abedinm, had they been indicted.

    At least their interviews with regard to Clinton had a statutory basis for being conducted — like U.S. Code 794 on removal of classified information and possibly 641 on government records.

    Their answers about Clinton’s e-mail server were less than candid. And they easily outdid Flynn and Papadopoulos in terms of less than candid answers during F.B.I. interviews. Under the new Mueller standard, they have to be indicted. But I don’t think 4 wrongs make a right.

    The current investigation has no statutory basis. There was no criminal allegation leveled against the Trump campaign when Mueller incorporated was formed. Maybe Turley ought to focus on that.

    1. The prospective criminal allegations against the Trump campaign are likely memorialized in documents known as Urgent Reports sent back and forth between the special counsel’s office and DAG Rosenstein. Manafort’s lawyer, Downing, requested those notes in the much-reported hearing before Judge Ellis who denied Downing’s request most likely on the grounds that defense counsel doesn’t get to look over the prosecutor’s shoulder while investigatory decisions are being made. And especially not so in ongoing investigations with vital national security interests at stake.

      BTW, Manafort still has a joint defense agreement with Trump. Trump wants to know how Manafort got caught so that Trump can figure out how Trump’s going to get caught. For that matter, Trump has to figure out exactly when Trump will have to decide not to seek reelection to a second term of office.

      1. While I appreciate your comment, it contains no statutory basis for the formation of a special council to investigate the Trump campaign.

        1. 18 USC 371 Conspiracy to Defraud the United States. (Others are possible. But that’s the one that fits the charges thus far indicted.)

          1. Isn’t that the statute against Manafort for actions he took many years ago?

            That’s not a statute for the Trump campaign.

            1. It will be once Trump Jr., Kushner and Manafort are indicted for what they really did at the Trump Tower meeting and afterward. Others will be included that conspiracy such Stone, Caputo and Cohen. Assuming that Flynn, Papadopoulos and Gates stick with their plea deals. Meanwhile, the complete list of possible charges includes the following:

              18 U.S.C. § 371 (conspiracy to defraud the United States); 18 U.S.C. § 951 (acting in the United States as an agent of a foreign government without prior notification to the Attorney General); 18 U.S.C. § 1001 (false statements); 18 U.S.C. § 1028A (aggravated identity theft); 18 U.S.C. § 1030 (computer fraud and abuse); 18 U.S.C. §§ 1343, 1344 (wire fraud and bank fraud); 18 U.S.C. § 1519 (destruction of evidence); 18 U.S.C. § 1546 (visa fraud); 22 U.S.C. § 618 (Foreign Agents Registration Act); and 52 U.S.C. §§ 30109, 30121 (soliciting or making foreign contributions to influence Federal elections, or donations to influence State or local elections).

              Indicting the Russian intelligence officers who supervised the hack of the DNC and Podesta emails runs the risk of retaliation by Russia against American intelligence operatives working in Russia under diplomatic cover and the attendant immunity. So 18 USC 1030 might not be charged.

              Just because the listed charges are possible doesn’t mean that they were stated in the Urgent Reports or in Rosenstein’s August 2nd, 2017, memo. I’m not allowed to know this stuff either. I’m guessing. Because I love guessing games. And the whole blamed thing from start to finish is one the best guessing games ever.

              1. It will be once Trump Jr., Kushner and Manafort are indicted for what they really did at the Trump Tower meeting and afterward.

                Your hopes and dreams keep intruding. Can’t you hash this out with your therapist instead of pestering us with it?

                1. She uses the same therapist that DeNiro uses.
                  So that’s not a solution for the “pestering problem”.😏

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