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The dangling pardons. Do innocent men behave this way?

Published by digby on March 29, 2018

The dangling pardons

by digby

I wrote about the latest in the Russia probe for Salon this morning:

Until Wednesday it was a weirdly slow news week in this high-energy Trump era, with no more than a few desultory tweets from the president and almost no public appearances. The most obvious reason for Trump’s unwillingness to address the press was that the Stormy Daniels story had dominated the news cycle and he didn’t want to have to answer questions about that. Trump also got bad news this week on the emoluments lawsuit that alleges he’s improperly profiting from his Washington hotel as president. Or maybe he’s just come down after his manic run of the past couple of weeks.

On Tuesday, Trump’s silence took on a more ominous tone, however, when senators on both sides of the aisle sent letters to various members of the Justice Department, more or less begging them not to cooperate with any move to shut down Special Counsel Robert Mueller’s investigation. For no obviously discernible reason, Sens. Thom Tillis, R-N.C., and Chris Coons, D-Del., authors of a bill introduced more than a year ago to protect Mueller, issued a joint statement urging Trump “to allow the Special Counsel to complete his work without impediment, which is in the best interest of the American people, the President, and our nation.” Later, Sen. Richard Blumenthal, D-Conn., and the eight other Democrats on the Senate Judiciary Committee released a letter to five DOJ officials asking them to commit to protecting Mueller.

Blumenthal went on MSNBC’s Rachel Maddow show and explained:

Meanwhile, the reasoning behind the letters to the Justice Department was spelled out in this Slate article by Blumenthal and historian Rick Perlstein, looking to the Watergate precedent.

A couple of stories have broken over the last couple of days in the Russia investigation, and they may shed light on the “swirling” rumors in the capital. On Tuesday night, Mueller’s office filed a sentencing brief for Alex van der Zwaan, the London attorney who recently pleaded guilty to lying about his contacts with former Trump campaign official Rick Gates and a person identified in the sentencing document as “Person A.” Person A appears to be Konstantin Kilimnik, an associate of Gates and Paul Manafort who reportedly was once a Russian intelligence agent and is still suspected of some affiliation with the GRU, Russia’s spy service.

Mueller is arguing for jail time for van der Zwaan, who looked at first like a bit player in this saga, and apparently the Kilimnik connection was particularly important in making that recommendation. It’s not entirely clear why this should be so, and analysts spent the day speculating about the underlying narrative. Perhaps this is a warning to former Trump Campaign Manager Paul Manafort, who is currently under indictment, that the special counsel has this information connecting the campaign to Russian intelligence. Or perhaps the substance of the conversations between Gates, van der Zwaan and Kilimnik is relevant to the conspiracy case. The document makes it very clear that these conversations took place in 2016, which indicates they were related to the Trump campaign. Either way, this was a bombshell dropped into the middle of what should have been a routine sentencing recommendation document, and it sent some shock waves through D.C.

That was nothing compared to The New York Times report on Wednesday afternoon that Trump’s former attorney John Dowd had been discussing the possibility of presidential pardons with the lawyers for Manafort and former National Security Adviser Michael Flynn, during the period when they were being pressed to cooperate with Mueller.

The discussions came as the special counsel was building cases against both men, and they raise questions about whether the lawyer, John Dowd, who resigned last week, was offering pardons to influence their decisions about whether to plead guilty and cooperate in the investigation.

This happened at the same time as reports in the press suggested that Trump was grilling advisers about his pardon power, including his power to pardon himself. He even tweeted this:

Dowd has denied that he dangled possible pardons before Flynn and Manafort, and it’s not clear whether the president was aware of such offers, if they were made. The Times reporters have emphasized that they felt sure of their sources on this story.

Would anyone be surprised if the president had authorized his lawyer to offer pardons to the two men if they refused to cooperate with the Mueller investigation? Whether it was because he’s trying to cover for his own misdeeds or simply feels that the situation is unfair to his friends, it’s right in line with Trump asking former FBI Director James Comey to let Flynn go and his complaints that the whole investigation is just a hoax and a witch hunt. It’s not as if he has ever ruled it out.

Any discussions of a pardon with the attorneys for Manafort and Flynn were clearly an offer of a quid pro quo. Everyone knows the president has the power to pardon. There would be no need to mention it in advance of making a deal with the prosecutor, unless there was an expectation that they would not cooperate.

Manafort has not yet flipped on Trump, but both Flynn and Rick Gates have, indicating that Mueller successfully convinced them that was in their best interests, regardless of any presidential promises. (Would you trust Donald Trump to follow through on any bargain?) Dowd’s abrupt resignation as the president’s counsel has led to speculation by people like Neal Katyal, the former solicitor general under President Obama, who told Ari Melber on MSNBC that Dowd himself might be in some danger of being charged with obstruction of justice. It’s not as if the Mueller team is unwilling to target lawyers. They called Manafort’s attorney before the grand jury and are now demanding jail time for van der Zwaan.

Dowd gave an interview this week in which he said, “We had a terrific relationship with Mueller — the best that I can recall in my 50 years of practice. It was terrific, completely open, people trusted each other, and we had no misunderstandings.” That’s laying it on a little thick, but this is a man who spent the last year dealing with Donald Trump, so perhaps he’s forgotten that this sort of buttering-up doesn’t work with normal people.

Legal experts don’t agree about whether or not Trump can be held liable for obstruction of justice by offering to pardon people to keep them silent. The president’s pardon power is understood to be absolute. (Yes, he can probably pardon himself, although that’s never been tried.) So this is unlikely to be the basis of an indictment all on its own. But it certainly adds to the mountain of evidence that Donald Trump is desperate to thwart the investigation into Russian interference in the election and is prepared to do anything in his power to stop it. Once again, you have to ask why an innocent man would do such a thing.

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