Key Hurdles on the Horizon
As the Mueller investigation marches on, Trump and his TV lawyer, Rudy Giuliani, have intensified their public relations campaign to undermine the investigation. They appear to be preparing for indictments of Trump associates and family, and the possible impeachment of Trump. The time is right to revisit some of the major hurdles that lie ahead in the effort to bring Trump and friends to justice.
Trump’s announced pardon of Dinesh D’Souza confirms his intent to expand use of the pardon power. As I’ve written, Alexander Hamilton explained the power as a tool to soften the harshness of the criminal justice system by correcting mistakes, shortening overly harsh sentences, or showing mercy based on age or infirmity. Occasionally, it has been used – for better or for worse – to move the country past divisions, as with Andrew Johnson’s pardon of Confederate soldiers, Gerald Ford’s pardon of Nixon, and Carter’s amnesty for Vietnam resisters. These pardons were generally issued despite political costs.
Since the late 19th century, pursuant to executive order, the power has generally been cabined by well-defined process, according to which presidents acted following recommendations from the Justice Department that were developed after careful investigation of the pardon request. That process has been important to prevent the power from being used abusively for political or personal benefit. Trump has exercised his muscle to break free of the process. His pardons of Joe Arpaio, Scooter Libby, and D’Souza were shots from the hip. They appealed directly to Trump’s right-wing political base and would never have made it through the Justice Department process. Indeed, George W. Bush had commuted Libby’s sentence, but refused to pardon him. And neither D’Souza nor Arpaio would have satisfied the Justice Department’s five-year waiting requirement.
Theories abound as to the reasons for Trump’s selection of these men for pardons.
Notably, Libby was prosecuted for lying to investigators, a crime that will likely figure in coming indictments. D’Souza pled guilty to campaign finance violations, which may figure prominently in charges against Michael Cohen for paying off Stormy Daniels. Arpaio was convicted of defying a court order to stop profiling on the basis of race and ethnicity, conduct consistent with Trump’s repeated assaults on federal judges.
The motivation for his pardons is important. Although individual pardons likely are unreviewable, corrupt use of the power can contribute to articles of impeachment either standing alone or as an element of obstruction of justice.
Trump’s willingness to pardon anyone at any time for self-serving purposes sends an unmistakable message to his associates under investigation. It tells Michael Cohen, Paul Manafort, Don Jr., Jared Kushner, and others who may be indicted that they can resist Mueller, including making false statements, and expect a full pardon in the end. They may still have state criminal exposure, but the federal investigation will be thwarted.
Mueller’s Final Report
According to the regulations governing the special counsel, Mueller must submit a “confidential report” to Deputy Attorney General Rod Rosenstein, who has final say over whether a report from Mueller goes to Congress. It seems almost inconceivable that Rosenstein would choose not to send a substantive report to Congress. But, it seems all too conceivable that Trump would do everything in his power to prevent the report from reaching Congress. Trump can direct Rosenstein not to forward the report and fire him if he persists. That could launch a Saturday Night Massacre and lead to a test of Trump’s authority to fill vacancies. At that point, a functioning Congress would step in to demand production of the report, which could set up a significant battle between the political branches and, depending on the results of the 2018 election, start the House down the path toward impeachment.
Rosenstein’s role is complicated by renewed questions as to whether he has an obligation to recuse himself from oversight of the investigation. As I’ve written, he played a key role in the firing of James Comey. He met with Trump and wrote the memo that Trump disingenuously relied on to fire Comey. In recent days, a report surfaced that Andrew McCabe had written and turned over to Mueller a memo recounting a conversation in which Rosenstein told McCabe that Trump had wanted a mention of the Russia investigation in Rosenstein’s memo. That increases Rosenstein’s importance as a witness and a potential subject of the investigation. I continue to believe that Mueller must have non-public information that justifies Rosenstein’s continued role.
Trump has renewed his attacks on his attorney general for failing to protect him from Mueller. Trump stated that he wished he had appointed someone else. For once, I embrace his sentiment. It is hard to imagine a worse choice for attorney general than the over-matched Sessions whose racism prevented his confirmation as a federal judge and whose extreme views on immigration and criminal justice made him an outlier in a conservative Senate. But Sessions’s recusal from matters involving the Trump campaign is the reason we have a Mueller investigation. His continuation as recused attorney general is essential. If Trump manages to replace him, all bets are off.
Giuliani continues to pretend for public consumption that Trump is considering voluntarily submitting to questioning by Mueller. I have said repeatedly that a voluntary interview will not happen. Giuliani’s statements are part of the public relations strategy to prolong the investigation, while continuing attacks on Mueller’s legitimacy. Whether Mueller eventually will subpoena Trump remains an open question without a clear answer.
The 2018 Elections
Giuliani recently stated that Mueller must wrap up his investigation by September 1 to avoid interference in the mid-term elections. That’s not going to happen. Giuliani is attempting to corner Mueller. While we don’t know Mueller’s schedule, and while he may produce indictments and reports before September, work will surely continue through the election season and beyond. Indeed, Manafort is scheduled to go to trial in September. There will come a point, however, when Mueller will have to avoid taking public steps that could be expected to affect the outcome of an election. That does not mean a cessation of all steps in the investigation, but it may require some exercise of discretion during campaign season regarding matters directly related to an election.
The best guess is that Mueller has come a long way, but he still has significant hurdles to surmount.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.