Yesterday, the president pardoned Lewis “Scooter” Libby, former chief of staff to vice president Dick Cheney. Libby was convicted, in 2007, of perjury and obstruction of justice in relation to his participation in the unlawful disclosure of the identity of undercover CIA operative, Valerie Plame. It is widely believed that leaking Plame’s status as a CIA agent was punishment for her husband’s outspoken and public criticism of the Bush administration.
President Bush commuted Libby’s sentence but refused to pardon him even though Cheney pushed hard for a pardon. In addition to having his term in prison commuted by President Bush, Libby already had his bar license and voting rights restored. So, why would President Trump pardon Libby, and why now?
During my two decades as a federal prosecutor, the bread and butter that fueled my efforts to work my way up the culpability chain of a criminal conspiracy was flipping co-conspirators and making them witnesses. I would develop a good case against someone involved in a criminal organization, indict him, and then offer him a recommendation for a reduced sentence if he cooperated and provided me with information about other people involved in the organization. Typically, the best deals came for information on the highest ranking members of the conspiracy.
This tried and true process, used by prosecutors across the country, only works if the person offered a deal has something to gain by taking the deal. One thing I learned early in my career at the Department of Justice is that people indicted with crimes rarely provide the government with evidence against their cohorts out of the goodness of their hearts. It is not altruism that makes people under indictment flip, it is the self-interest that comes with wanting to spend as little time in prison as possible. Take away the carrot and the rabbit has no interest in coming to the table.
By granting a pardon to Scooter Libby, someone who the president does not know or likely care about, he telegraphed to all the potential witnesses against him, in the Russia investigation, that they too could expect similar treatment. If Trump was willing to pardon Scooter Libby, a stranger, why wouldn’t he be willing to pardon close associates like Paul Manafort and Michael Cohen in order to ensure that whatever they say to the special counsel does not implicate him?
Of the many mechanistic phrases that regularly pass across Trump’s lips, and twitter feed, “biggest witch hunt in modern history” is high on the list used to describe his assessment of Robert Mueller’s probe into Russia’s attack on the 2016 election. With the help of the propaganda machine at Fox News, the last year of Trump’s presidency has been a set-up, designed to convince his base that if the special counsel finds that Trump’s campaign cooperated with Russian operatives to help him win the election, the investigation was rigged. This is the perfect culture in which to grow support and acceptance of future pardons for pivotal players in the Russia investigation. Trump does not care if he is skewed by legitimate media outlets, he only needs to keep his base in line to withstand the scrutiny that will come by pardoning potential witnesses against him and his family.
To the extent it is difficult to accept the notion that the president of the United States is attempting to convey to prospective criminal defendants that they should keep quiet, we need not look any further than Trump’s telephone call yesterday with Michael Cohen. Cohen, Trump’s longtime attorney, business compatriot, and porno star silencer, was the subject of an FBI search warrant two days ago. Undoubtedly, the attorneys handling the criminal end of Trump’s legal woes told him to make no contact with Cohen. It never looks good when two subjects of the same investigation start making private calls to one another.
Ignoring the angel on his shoulder, the first thing Trump did was reach out to Cohen in a telephone call, one day after the search warrants were executed. Even if they had the common sense to discuss nothing more than who they were voting for on this week’s American Idol, the telephone call from the president to Cohen had a significance beyond the content of the call. “Stay strong. I’ve got your back” is the unspoken message. And then, the same day, without going through DOJ’s Pardon Attorney, Trump granted a full pardon to Libby, who was convicted of what some former Trump campaign officials have already been convicted of as part of the Russia investigation.
Hampering a prosecutor’s ability to flip defendants into witnesses can undermine his investigation. The prospect of a pardon, from the president, takes the carrot from Robert Mueller’s hand and places it firmly in the hand of President Trump. That’s a dangerous place to be.