Floating Pardons for Flynn and Manafort May Constitute Obstruction

Yesterday, the New York Times published a report that one of Donald Trump's attorneys, John Dowd, who coincidentally just resigned last week, "broached the idea of Mr. Trump's pardoning two of his former top advisers, Michael T. Flynn and Paul Manafort, with their lawyers last year, according to three people with knowledge of the discussions."

Naturally, the White House has denied that such discussions ever took place, despite the fact that White House counsel Ty Cobb issued a very carefully worded statement that used the present tense: "I have only been asked about pardons by the press and have routinely responded on the record that no pardons are under discussion or under consideration at the White House." White House Press Secretary Sarah Huckabee Sanders was also typically evasive: "I'm not aware of any conversation of that nature." A statement which, of course, does not at all mean they didn't happen.

This is a big deal. It's potentially more significant than if Donald Trump had just gone ahead and preemptively pardoned them, because dangling out the possibility of a pardon could be construed as an attempt to persuade them to behave in a certain way to earn that pardon — which could in turn be seen as an attempt to obstruct justice.

Alex Whiting at Just Security explains (emphasis original):

Some experts have argued that the pardon power is absolute and that the President's motives in issuing a pardon thus could not be questioned, while others contend that it could be a crime to issue a pardon for corrupt purposes (such as in exchange for cash). But the debate over the absolute nature of the pardon power is actually not relevant to the alleged incidents involving Trump's lawyer. Indeed, that entire debate can be set aside for the moment. Why? Because there's been no pardon. Instead, a pardon has only been dangled before Flynn and Manafort, and the analysis of whether that action could become part of an obstruction case against Trump raises entirely different considerations.

If Trump actually pardoned Flynn and Manafort, he would have to do so publicly and accept the political consequences of this profound act. As Jack Goldsmith suggests in the New York Times story, for those who believe that the pardon power is absolute and cannot be scrutinized by courts, the remedy for a corrupt pardon is in the political arena: elections or impeachment. What's more, if Trump actually pardoned Flynn and Manafort, then the two men could no longer assert their Fifth Amendment privilege against self-incrimination because their pardons would erase their federal criminal liability, and therefore Mueller could call both to testify in the Grand Jury and in any subsequent trial. If they continued to assert their Fifth Amendment privilege on the basis of state criminal exposure, Mueller could obtain an order granting them so-called "use immunity" which would ensure that their testimony could not be used against them in any way in state court either. Manafort and Flynn would then be compelled to testify, or risk jail for contempt of court.

The pardon dangle works completely differently—and in important respects has the opposite effects. First, this kind of dangle is not a public act. Therefore, as long as it remained secret, it could be done without incurring any of the political downstream consequences that come with actually pardoning someone. It hides the President from scrutiny rather than exposes him to it as a potential check on the use of the power. Second, the objective of the dangle appears to have been to foreclose the prospect of Flynn and Manafort's cooperating or testifying. Once again, this is the opposite effect of an actual exercise of the pardon. The message of the dangle was sufficiently clear: hang in there and keep fighting (do not cut a deal with the special counsel) because you will be pardoned before you spend a day in jail...

Because a pardon dangle is secret and seeks to discourage cooperation with an ongoing investigation without public scrutiny or consequences, it should be analyzed differently than a pardon when it comes to an obstruction case. Because of the way a pardon dangle operates, it should acquire none of the deference that might be afforded an actual pardon, and if the dangle is found to be orchestrated with a corrupt motive, it should qualify as a potential act of obstruction of justice.

One of the most important takeaways from this episode is that the Trump team, in spite of plethoric narratives to the contrary, is not "stupid." They are incredibly savvy and equally corrupt manipulators, who are eminently willing to abuse power because they have contempt for the rule of law, except insofar as they can wield it to police, intimidate, and harm other people.

Never mistake for "stupidity" what is, upon even the most cursory scrutiny, calculated malice.

I remain unconvinced by the argument that the Trump team must be "stupid" because they keep "getting caught." They did not "get caught" dangling pardons to Flynn and Manafort. An informant, probably Rick Gates, disclosed it, likely as part of his own attempt to escape consequences for his own corruption, as much as is possible.

Further, we only see what they're not getting away with. None of us has any real idea how much they are getting away with, because they operate in secrecy. .

And every time we have more evidence of some attempt to secretly influence, obstruct, or altogether deny justice, that should make us ask what else there is yet to be discovered, not feel certain that they are "stupid" because we found out one thing, or two, or ten.

To think we know the scope of the corruption of an administration that values secrecy is what's stupid, frankly.