Former Assistant US Attorney Explains How Mueller Can Sidestep Trump's Ability to Self Pardon.

The following was written by Craig Benedict, a former DOJ Assistant US Attorney. 

This past Monday (October 30, 2017), Robert Mueller, the Special Counsel appointed to investigate possible collusion by the Trump administration with Russia, released a sealed indictment filed against the President’s former campaign manager, Paul Manafort, and his long-time associate Richard Gates. Almost immediately, Trump surrogates began noting that the charges, including tax fraud, money laundering, and the failure to report working as an agent of a foreign government, did not directly bear on the campaign. But barely an hour after the unsealing, Mueller also unsealed a plea document. It demonstrated that former Trump campaign foreign policy advisor, George Papadopoulos, had secretly pled guilty weeks ago. His plea was for lying to the FBI about activities undertaken on behalf of the campaign during which he actively sought information from Russia related to “dirt” and emails stolen from the Clinton camp. The plea document further revealed that Papadopoulos had been working as an “active cooperator” in Mueller’s investigation. Legal analysts have opined that such active cooperation may have included Papadopoulos’ recording conversations with Trump officials about their prior activities involving Russia. The serious and obvious danger for the Trump administration includes that the President’s son, Donald Trump, Jr., and his son-in-law Jared Kushner, met with Russian nationals and were subsequently interviewed about those meetings. If they provided false statements during those interviews, such conduct could be charged as felonies under federal law.

     Under our Constitution and so long as he remains President, Trump has the power to pardon any offense against the United States. He can do so even before any charges are brought or convictions obtained. Trump has already exercised that power when he pardoned Sherriff Joe Arpaio. Notably, the President did so without reliance on the structure established by the Justice Department for granting such pardons (no pardon request by Arpaio or evaluation of the merits of the request by the Justice Department’s pardon attorney). Thus, one can reasonably anticipate that President Trump would not hesitate to issue pardons to other officials, especially his son and son-in-law, the moment it appeared they were in peril of being convicted of a crime. 

     Special Counsel Mueller is an extraordinarily accomplished prosecutor. He is, of course, well aware of the pardon mechanism that Trump could use to short-circuit the Special Counsel’s potential prosecution of his relatives or other Administration officials. So, the dilemma begs the question: how can the American people ever have faith that the past presidential election was not subject Russian collusion if the President can simply pardon anyone who might be prosecuted and hence inclined to cooperate as part of a plea deal? Mueller has reportedly has come up with a very thoughtful “work around.” That is, the Special Counsel has reportedly begun to cooperate with New York State Attorney General Eric Schneiderman in the ongoing investigation. The United States and officials from any state can and do, from time to time, work together on cases that implicate violations of both federal and state laws. By working with Schneiderman’s office, Mueller can, to a degree, insulate his efforts from a potential Trump pardon. Should these law enforcement officials determine that Trump, Jr., Kushner or others in the administration broke the law, Mueller can request that Schneiderman seek state charges for conduct that would otherwise just be prosecuted federally. If the President was to endeavor to upend efforts by Mueller and a federal grand jury to prosecute federal offenses, he would have no power to pardon individuals for state offenses. In fact, was Trump to pardon for federal offenses, Schneiderman could even “cross-designate” Mueller as a Special NYS Attorney General to assist with the state prosecution. Time will tell how the legal chess match plays out, but it seems likely that Mueller and his team will not be intimidated by or fail to anticipate possible actions by the Trump Administration to stave off further charges.