Trump can flex his pardon power
President no longer has to worry about electoral retribution
Little left to stop him from trying to clear legal clouds from allies.
WASHINGTON— President Donald Trump has exercised his clemency power with gusto in nearly four years in office, pardoning or commuting the sentences of more than three dozen convicts. But now, with Election Day over, he can act unleashed.
Trump doesn’t have to worry about electoral retribution for using his pardon power over federal crimes, which is his alone. That leaves little to stop him from trying to clear legal clouds from political allies, family members and others caught up in what he’s branded as unfair prosecutions.
“Trump has already exercised his clemency power to reward friends and thwart cooperation with law enforcement, even when it might have some political cost,” said Andrew Weissmann, who worked on special counsel Robert Mueller’s probe of Russian interference in the 2016 election.
“If Trump were to lose the election, therewould be little to keep him from pardoning all those around him and at his business to thwart any potential future investigations or cooperation,” said Weissmann, who writes in a new book that Mueller’s team “could have done more” to hold Trump accountable.
Modern presidents have shown the breadth of pardon possibilities.
Jimmy Carter offered a blanket pardon to draft dodgers. Bill Clinton pardoned a political donor, Marc Rich. Gerald Ford pardoned Richard Nixon before he could be charged. Given that broad power, Trump could offer pardons of a range of people — those convicted and in jail, in the midst of legal proceedings, or even those not formally accused.
The president’s clemency power is unilateral, but it’s not absolute. “Offering a pardon for silence is not allowed. That’s like witness tampering,” said Jeremy Paul, a professor at the Northeastern University School of Law.
For those speculating about whom Trump might pardon, here’s a partial list of possibilities:
Michael Flynn: Trump could put an end to his former national security adviser’s four-year legal saga by reaching in with a pardon.
Flynn twice pleaded guilty to lying to FBI agents examining his ties to Russia, then moved to withdraw his plea, after hiring a lawyer who’s been an outspoken critic of the Mueller investigation. In May, the Justice Department moved to withdraw its case against Flynn.
U.S. District Court Judge Emmett Sullivan is now trying to determine whether the Justice Department’ s about-face was guided by corrupt motives. That review would end with a pardon.
Paul Manafort: Trump has expressed sympathy for his former campaign chairman, saying that his prosecution was unfair and that a pardon was “not off the table.”
Manafort, who spent his career working on behalf of pro-Kremlin oligarchs in Ukraine, never flipped on the president. Even when Manafort decided to cooperate with Mueller, following a conviction at trial for financial crimes, he kept lying.
Manafort was sentenced to seven-plus years. After the coronavirus pandemic emerged this year, he was allowed to serve it at home. Trump praised Manafort after his conviction for refusing to “break” under pressure and compared him with his former lawyer,
Michael Cohen, a cooperator described by Trump as a “rat.”
Roger Stone: Trump commuted Stone’s sentence just as hewas to report to prison to serve a 40-month term. The president could go a step further by erasing his friend’s criminal record.
Trump’s relationship with the self-described political dirty-trickster goes back decades, to when both men were mentored by the notorious fixer-lawyer Roy Cohn.
Mueller’s report described Stone as a primary conduit of information between Wiki Leaks, which published a trove of emails hacked from Hillary Clinton’s campaign chairman in 2016, and the Trump campaign. He obstructed Mueller’s investigation and was convicted of lying to Congress and tampering with witnesses.
Rudy Giuliani: Giuliani is under investigation by prosecutors in the Southern District of New York, which he once ran. No charges have been brought, but Trump could preemptively lift any cloud of uncertainty over the former New York mayor by pardoning him anyway.
The SDNY investigation involves Giuliani’s business partnership with Lev Parnas and Igor Fruman, who helped him dig up information about Trump’s chief political rival, Joe Biden. A wire-fraud charge against Parnas and another associate alleges that they raised more than $1 million from investors under false pretenses. Giuliani has said he was paid $500,000 to promote their new company, Fraud Guarantee.
Steve Bannon: Similar to Manafort, Bannon was a Trump campaign CEO in 2016. Along with three others, Bannon was charged in August with conspiracy to commit wire fraud and money laundering in con-nection with an effort to get private sector funding to build a wall along the U.S.Mexico border — a signature Trump campaign promise.
Although Bannon was pushed out as chief White House strategist in 2017, he has worked to support Trump’s reelection effort, tipping off a New York Post reporter in September to the existence of a cache of suspicious emails from the laptop of Hunter Biden, a son of the Democratic presidential nominee.
Trump himself: And then there’s the idea of a self pardon. Trump has said he has the “absolute right to pardon myself,” but itwould be an unprecedented step, according to Stuart Green of Rutgers Law School.
Trump has numerous reasons to consider testing the limits of his clemency power.
After he leaves office in 2021 or 2025, Trump could face scrutiny over a variety of issues, including claims that he used his office to funnel business to his hotel and resort properties. There’s also the campaign finance violation that ensnared Cohen, involving hush payments to an adultfilm actress. Cohen has said that Trump directed those payments. Court filings in that case implicated Trump but didn’t identify him by name.
Also, the Mueller report describes several episodes in which Trump tried to obstruct justice. Attorney General William Barr determined that Trump didn’t break the law, but a future attorney general might take a second look.
Finally, the New York Times’ recent reporting on the presidents’ income tax returns — revealing that he paid only $750 in income taxes in 2016 and 2017 — questioned the tax treatment of some of his deductions over the years and could set off a potential tax-evasion investigation.