Special Counsel Robert Mueller has now drawn first blood, and it’s a deep cut. The indictment of former Trump campaign manager Paul Manafort, along with Manafort’s longtime associate Rick Gates, on multiple charges of conspiracy, tax fraud and money laundering poses a serious threat to the Trump presidency. So does the news that George Papadopoulos, a campaign aide, pleaded guilty to one count of lying to FBI agents about the nature of his interactions with foreign nationals whom he believed had close connections to senior Kremlin officials.
The keenest peril to Trump is the prospect that Manafort would strike a deal with Mueller’s team to reduce his criminal exposure in return for information against the president or his closest circle of advisors. Trump’s lawyers pretend they’re unfazed by Monday’s developments, but they’re just acting. Manafort was at the center of the president’s campaign for several pivotal months, and along with Jared Kushner and Donald Trump Jr. attended the July 9, 2016, meeting with a Russian lawyer who promised opposition research on Hillary Clinton. The president was personally involved in fabricating a misleading account of that meeting.
Moreover, the indictment demonstrates that Mueller is ready and willing to probe financial misdeeds in Russia and Ukraine that precede the campaign. Trump and Manafort both played in that dirty pond for years (albeit separately), and Trump has been especially anxious to keep the investigation from expanding to his business conduct (and his tax returns).
Does Trump have any viable alternative at this point to sitting back and watching the probe unfold, hoping it stops short of the Oval Office?
He could, theoretically, order the Department of Justice to fire Mueller. The drumbeat for that option has resumed recently in conservative media and among proxy members of Congress, likely with the tacit approval of the White House.
A Manafort pardon would amount to an all-out declaration of war against the special counsel — making a high-stakes showdown inevitable.
Trump might ultimately prove unable to resist that course. But at least the grownups on the Trump legal team — who have restrained his tweet war with the special counsel — understand that at present the move would carry outsize political risk.
The president might also think he has another way out: a preemptive pardon of Manafort. Trump might surmise that a pardon would enfeeble if not disable Mueller’s ability to induce cooperation through the threat of criminal prosecution. And Trump has already shown that he views the pardon power as a plaything in his personal sandbox. Perhaps the most arrogant action of his presidency thus far was his pardon of former Maricopa County, Ariz., Sheriff Joe Arpaio, who had been convicted of criminal contempt of court. In so doing, Trump simply ignored well-established protocol for granting pardons.
Two prominent officials from past Republican administrations have taken the pardon-power argument to a ridiculous extreme, arguing in a Wall Street Journal op-ed that the president should immediately issue a blanket pardon to anyone in Mueller’s sights.
If, however, the president were to pardon Manafort, Manafort’s lawyers would still need to ask the court to dismiss the charges. At that point, Mueller could try to make the case that the pardon was invalid. It would be an unusual argument, but the unusual has become routine in the Trump era.
On his side, Mueller would have the many constitutional experts who believe that presidential powers in general may not be exercised for constitutionally improper purposes. Although the Supreme Court has not addressed this issue with respect to pardons, the court has indicated that the pardon power is subject to constitutional limitations.
Indeed, if the pardon power were not so constrained, the president would in effect be above the law — an untenable position in our democracy. To take just one example, at the end of his term, he could hire a contract killer to murder a personal enemy and then pardon the hitman and himself on his last day.
Mueller could make two related arguments that the Manafort pardon was granted for a constitutionally improper purpose. First, he could argue that granting or promising a pardon to thwart a criminal investigation violates the president’s duty to “take care that the laws be faithfully executed.” Second, Mueller could argue that the president had issued the pardon for the constitutionally improper purpose of protecting himself, members of his family and close associates from legal liability.
Once the issue was joined at the district court, it would likely be fast-tracked to the Supreme Court. Mueller v. Manafort would instantly become a case for the ages.
But these are still early days. Trump would have to further trample the rule of law before we get there.
Mark Greenberg is professor of law and philosophy at UCLA, and a former deputy assistant attorney general. Harry Litman, a former U.S. attorney and deputy assistant attorney general, teaches at UCLA Law School and practices law at Constantine Cannon.