This week, many were surprised by the disclosure made by the lawyers for Wikileaks founder Julian Assange in London in the Westminster Magistrates’ Court. Edward Fitzgerald made a witness statement application for co-counsel Jennifer Robinson who shared information concerning ex-California representative Dana Rohrabacher. She claimed that he made Assange a startling offer: if he cleared the Russians as the source of the hacked emails at the Democratic National Committee, Rohrabacher could get a presidential pardon from President Donald Trump. Now Rohrabacher himself says that it is true and that he spoke of the plan with Trump White House Chief of Staff, though he did not speak of the plan with Trump himself. The timing is particularly unfortunate for the White House with a report that U.S. intelligence believes that Russia is again seeking to intervene in the election and appears to be intervening in favor of Trump. Update: A new story suggests that the Russians could also be helping Bernie Sanders.
Fitzgerald said that the statement shows “Mr. Rohrabacher going to see Mr. Assange and saying, on instructions from the president, he was offering a pardon or some other way out, if Mr. Assange … said Russia had nothing to do with the DNC leaks.”
Such an offer would add a new allegation of the misuse of presidential power for personal or political benefit. The White House denied the story: “The president barely knows Dana Rohrabacher other than he’s an ex-congressman. He’s never spoken to him on this subject or almost any subject. It is a complete fabrication and a total lie. This is probably another never ending hoax and total lie from the DNC.”
Rohrabacher did visit Assange at the Ecuadoran embassy in London in August 2017. Rohrabacher claimed afterward that he had “earth-shattering” information from the meeting.
Rohrabacher confirmed with Yahoo News that he told Assange he would get him a Trump pardon deal. However, he also confirmed that he never spoke with Trump and indeed he was repeatedly rebuffed in his attempts to do so. He also said he would “petition” the president and not that he had a guarantee of such action: “I spoke to Julian Assange and told him if he would provide evidence about who gave WikiLeaks the emails I would petition the president to give him a pardon.” However, he added “He knew I could get to the president.”
The alleged quid pro quo pardon proposal is not new. The Wall Street Journal reported promoted on the proposed deal back in September 2017. Likewise, Rohrabacher told the Daily Caller afterward that “if [Assange] is going to give us a big favor, he would obviously have to be pardoned to leave the Ecuadoran embassy.” Some reports have stated that Assange continues to maintain that the material did not come from Russia.
While Rohrabacher did meet with Trump before the Assange meeting, he said that he was blocked after the meeting. He also said that he met with Chief of Staff John Kelly but again did not seem to make progress. He said that Kelly was courteous but “he knew this had to be handled with care,” Rohrabacher said he never heard back.
That falls short of the critical nexus needed to establish that the President or the White House was part of this effort. I do however have a significant concerns about the Kelly meeting. The White House has already been damaged by the use of Rudy Giuliani’s activities in the Ukraine in pushing such theories from the 2016 election. The President has a history of working through third parties even at counter purposes to his own Administration.
If a former or current member of Congress is flying around the world pitching such a pardon-based quid pro quo, I would think that the White House would do more than sit in courteous silence. Rohrabacher was suggesting that he could seal a deal for clearing the Russians in exchange for a presidential pardon. Yet, there is no evidence that the White House told him to stop or made an effort to prevent such representations from being made. It could be argued that such silence (particularly after the stories ran) amounts to tacit approval or acquiescence.
It is not uncommon for a possible witness to be offered benefits from cooperation, though this is usually done in terms of seeking the dropping or reduction of charges as opposed to a pardon. Indeed, such cooperation deals were discussed regarding Assange. Yet, a pardon in exchange for clearing the Russians is troubling on a number of levels.
Pardons generally are sought after the completion of criminal prosecutions and are not bargaining chips to induce cooperation. There is always the lingering hope for such clemency but I have never heard of a White House allowing pardons to be raised as an inducement for a statement or evidence. Moreover, the purpose of such a quid pro quo is highly disturbing. At the time, the United States was investigating Russian hacking. If Assange was going to cooperate, such cooperation needed to be raised with the Justice Department not the White House and certainly not through a former or current member of Congress. Of course, the intelligence agencies uniformly agreed that it was the Russians who hacked the emails.
It remains to be seen how this information will assist Assange in fighting extradition to the United States. As I discussed in an earlier column, the British court could deny extradition on the basis of Assange’s human rights and claim of being a journalist.
All of this can be rightfully considered by the court in deciding whether Assange will be extradited to the US. For example, in 2002 British hacker Gary McKinnon argued that he would be denied basic protections if extradited to the US. The case went all the way to the House of Lords and the European Court of Human Rights. In 2012, his extradition was denied by the home secretary at that time, Theresa May, on the basis that extradition “would be incompatible with Mr McKinnon’s human rights.”
This is a different angle for opposing extradition. The claim seems to be that Assange was being coerced to supply a statement and would now be punished for failing to play ball with Trump officials. That would seem less compelling than his claim that, if he is extradited, every investigative journalist could be extradited for such acts. The lack of a nexus to Trump or a green light from the White House undermines the value of the statement as a basis for denying extradition.