The president's former personal lawyer confessed Thursday to lying to Congress. That topic will probably get taken up in next week's column. Today I would like to consider another timely matter: presidential pardons.
I could go to the bank, withdraw my savings and give the money to the first person I meet. This is legal. I have every right.
But if I give that money -- or hint I would give that money -- to a witness I know in a criminal investigation in return for his not testifying, I would commit a crime. It would not matter if the person I was protecting from testimony was not me.
The president of the United States has the right to pardon anyone he wants to. This is completely legal. He has the power.
But if he grants that pardon -- or signals he might grant a pardon -- to someone in return for his not testifying, he could be committing a crime. It would not matter if the person he was protecting from the testimony was not him.
Not even the president can lawfully "corruptly persuade" someone in an official proceeding to withhold testimony. The quoted phrase comes from 18 U.S. Code 1512(b). I first read of it in an excellent article on these issues back in August. It was on the Lawfare website at http://lawfareblog.com/donald-trump-paul-manafort-and-pesky-witness-tampering-statute.
The situation with Paul Manafort has far, far gone beyond the warnings raised in that Aug. 23 article.
While I am no fan of the president, readers should remember that I am a long-time, much harsher critic of his legal team. I started pointing in December how his team serves him very poorly. Readers should remember something else before reading further. I blamed Manafort for the infamous Trump Tower meeting. That was the meeting of Russian go-betweens and the president's son, son-in-law and Manafort. Manafort's loyalties, so far as he has any, do not lie with the president.
Manafort is the president's former campaign chairman. A jury convicted him in August of eight counts including tax fraud and money laundering. He faced a second trial on other charges until he pleaded guilty in a deal with special counsel Robert Mueller. Mueller would recommend a reduced sentence in his trial conviction and his guilty plea if Manafort would cooperate. The special counsel, of course, is investigating Russian government interference in the 2016 presidential elections. Ethically and legally, it cannot ignore other crimes it discovers, although it does often farm those out to other jurisdictions.
Monday, Mueller's team filed a court document saying Manafort not only refused to cooperate but gave provably false new statements to investigators. The filing accuses Manafort of committing fresh crimes, presumably lying to investigators. More details will follow.
Tuesday, the president's inexplicably talkative lawyer, Rudy Giuliani, confirmed that Manafort did cooperate -- with the president's legal team. When Mueller's team questioned Manafort, Manafort would tell his attorney what they asked. The attorney would then brief the president's legal team.
So, to spell it out, Manafort pretended to accept a deal so he could report what he learned.
Keep in mind that the president loudly talks and tweets about how much he admires Manafort for not "flipping." Note how he criticizes his former private attorney, Michael Cohen, who did flip. Also consider how the president consistently says -- as recently as this week -- that a pardon for Manafort is not "off the table."
The signals could not be more clear. The president openly encourages Manafort not to flip. Manafort not only refused to talk, he went criminally far beyond that. He did not answer questions truthfully and the special counsel's office claims they can prove it. I have yet to see that office make a claim it could not back up about anyone in custody. Meanwhile, Manafort was, for weeks, giving the president's defense team a tangible benefit: information on what the special counsel was asking him about.
The whole situation begs the question: Why would Manafort do any of this if he is not shooting for a pardon? The only answer I can come up with is some other tangible benefit. For instance, Manafort might want wealth for his family. His assets were seized by the government after his conviction.
Whatever. The bottom line is: Manafort offered the president's defense team something of value. The team took it. Manafort expects something in return. The president foolishly gave him grounds to expect it.
Commentary on 12/01/2018