When special counsel Robert S. Mueller III was still investigating whether President Trump’s campaign coordinated with Russia in that country’s interference in the 2016 election, it was obvious that it would be inappropriate — even potentially impeachable — for Trump to grant pardons to former campaign aides caught in Mueller’s dragnet.
Has the calculation changed now that Mueller has reported that his investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities”?
Not at all. But Trump’s mischaracterization of Mueller’s findings as a “total exoneration” raises the question of whether the president might now feel sufficiently liberated to bestow pardons he refrained from granting in the past. Among the potential beneficiaries are former Trump campaign chairman Paul Manafort, who has been sentenced to several years in prison for financial crimes, and former National Security Adviser Michael Flynn, who has yet to be sentenced after pleading guilty to lying to the FBI.
And don’t forget “coffee boy” George Papadopoulos, who pleaded guilty to lying to federal agents about his contacts with Russian intermediaries during the 2016 presidential campaign. Papadopoulos, who served a short prison sentence, has requested a pardon.
Citing the end of Mueller’s investigation and Papadopoulos’ request, Fox News reported that the issue of pardons “is front-and-center once again.”
On Monday, Trump, asked by a reporter about whether he was considering pardons for anyone in connection with the Russia investigation, replied that “I haven’t thought about it.” But in the past the president has expressed sympathy for Manafort, and it’s not hard to imagine an argument being presented to Trump along the following lines: If it weren’t for Mueller’s “witch hunt,” these men never have been ensnared by the legal system. So pardon them!
Of course, the fact that Mueller cleared Trump and his campaign of criminal conspiracy with Russia doesn’t mean the investigation was improper, as my colleague Jon Healey noted here. And if, during the progress of a legitimate investigation, other wrongdoing comes to light, prosecutors are free to act on it.
There’s a final reason for Trump to refrain from pardoning any of his wayward former advisers: It could be perceived as obstruction of justice.
According to a letter sent to Congress by Atty. Gen. William Barr, Mueller didn’t come to a conclusion on whether Trump had obstructed justice in talking unspecified actions “most of which have been the subject of public reporting.” (One of those actions may have been Trump’s firing of FBI Director James B. Comey.) But Barr and Deputy Atty. Gen. Rod Rosenstein decided to answer the question, concluding that the evidence amassed by Mueller “is not sufficient to establish that the president committed an obstruction-of-justice offense.”
That’s the Justice Department’s opinion. But Congress might take a different view, including in the context of an impeachment investigation, once more of Mueller’s report is made public. Clemency for Manafort, Flynn et al would give rise to suspicions, fair or not, that they were being rewarded for their loyalty to the president or perhaps even for their silence. Would Trump be foolish enough to stoke such suspicions by issuing pardons?