Donald Trump’s ability to pardon Donald Trump is one thing. But his recent pardon of racist ex-sheriff Joe Arpaio seems to be a clear signal that Trump is not only ready to feed his white supremacist fan base, but willing to to throw around his pardon power with abandon. That raises the possibility that the investigation headed by special counsel Robert Mueller could become a revolving door where every person indicted for their involvement in conspiracy, cover up, and obstruction is given a free pass to thumb their nose at justice.
It may happen. But that doesn’t mean it will save Trump or anyone else.
Even mass pardons of all suspects in the Russia case would not close the door to potential prosecutions.
While presidential pardons can halt the federal case, local prosecutors could then pursue any Americans suspected of aiding Russia’s election meddling. In fact, legal experts say presidential pardons could make that prospect more likely.
New York Attorney General Eric Schneiderman has already been looking into Trump’s Russia connection for months.
Schneiderman ... effectively leads a law firm of more than 650 lawyers, one with a two-decade tradition of taking its fights national.
Even if Trump can wave federal charges away, he can’t make the evidence disappear. In many cases, state attorneys general could turn around and file charges against Trump’s cronies. And it goes way past Schneiderman.
The most likely places are New York, Virginia and Illinois, three states where there is evidence that election-related crimes occurred … Beyond the three main states, the legal arguments for potential criminal jurisdiction are even broader, extending to many of the 39 states that were subject to Russian hacking.
In fact, even if Republicans were to succeed in strangling Robert Mueller’s investigation before the team can finish working its way up the ladder of advisers and assistants to reach Trump, state actions could still go forward. In fact, Donald Trump pulling out his pardon power could be the very thing that opens the floodgates to actions across the country.
Typically, state and local prosecutors defer to federal investigators, especially in national security cases. But pardons could change that.
According to a source with knowledge of one state attorney general’s preparations, the office is already studying its potential state jurisdiction for Russia-related crimes. The source told MSNBC that state investigators typically defer to federal inquiries, but there is a perception the Russia inquiry may not turn out to be a typical situation.
It’s clear that, at this point in the investigation, Robert Mueller’s team is working to draw in those at the bottom of the Trump pyramid, such as Paul Manafort’s son-in-law, to serve as potential witnesses against those higher up the chain. Though witnesses may be inclined to resist offers of deals, waiting instead for Trump to pardon them, both solutions lead to the same result when it comes to testimony.
A presidential pardon, particularly a pre-emptive pardon like the one Ford gave to Nixon, which would prevent future prosecution, would have the same effect [as an offer of immunity by a prosecutor]. So if the president granted someone such a pardon, and then that person was subpoenaed to testify, they would be in no danger of prosecution, and therefore would not be able to assert their 5th amendment right not to answer a question on the witness stand.
But what about Trump himself? His pardon power is strictly limited in case of impeachment, but that does assume that Republicans get past the “gosh we’re disappointed, but … tax reform” stage. Which is a long way from being a sure thing, even if Mueller dumps file cabinets full of proof in their laps. If Trump tells Jefferson Sessions to turn the lights off and get rid of any federal action, is there an alternative?
A newfound memo from Kenneth W. Starr’s independent counsel investigation into President Bill Clinton sheds fresh light on a constitutional puzzle that is taking on mounting significance amid the Trump-Russia inquiry: Can a sitting president be indicted? …
“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”
Starr was certainly confident about his ability to call down a federal jury on Bill Clinton. But then … Ken Starr is not exactly anyone’s first choice for “legal scholar.” And Starr was talking about a federal grand jury, something that won’t happen if Sessions is guarding the door.
Nothing in the Constitution or federal statutes says that sitting presidents are immune from prosecution, and no court has ruled that they have any such shield. But proponents of the theory that Mr. Trump is nevertheless immune for now from indictment cited the Constitution’s “structural principles,” in the words of a memo written in September 1973 by Robert G. Dixon Jr., then the head of the Justice Department’s Office of Legal Counsel.
That 1973 memo is based on an interpretation by Richard Nixon’s Justice Department, which makes it a very convenient analysis. Others, including the Starr analysis, note that the Nixon–Dixon interpretation would free the president from all constraints. He would be free to commit any crime he wished, so long as Congress didn’t feel it was worthy of impeachment. It’s a wonder Donald Trump doesn’t have this paper taped to his mirror.
