November 17,2017

A president cannot pardon himself. Richard Painter, Norm Eisen and Laurence Tribe clarify this in their article in the Washington Post from July. But here is the next question. Can a president who is an indicted co-conspirator for federal crimes pardon his fellow co-conspirators? I think that will be a question we will see played out in the future. Why? Because if there are crimes against the United States that were committed in the run up to the 2016 election then Trump was in on it. We all know that Trump is a man who has to have his hand in everything. Note how he had to write Trump Jr’s statement about the Russian meeting in Trump Tower – it was about adoptions. Yeah right. Trump knew everything that was going on in his campaign because it was relatively small group of people in the inner circle. When it comes to the Russians and their engagement with that campaign in the run up to the election, does anyone doubt that Trump knew what was going on? If Mueller has enough evidence to charge a conspiracy, Trump will be in the middle of that conspiracy. He will be implicated. Manafort, Gates and Flynn all have compelling reasons to flip and tell Mueller what was going on inside that campaign. As for evidence of obstruction of justice, that is obviously something Trump can be charged with and will not be able to pardon himself for. The evidence of obstruction is very clear already. There is no need for more evidence, according to Jill Wine-Banks, former Watergate prosecutor, although Mueller may want to be able to uncover exactly what motivated Trump. What was the underlying reason Trump wanted Comey to lay off of Flynn.

When it comes to the Russian meddling conspiracy, there is an interesting question. Could Trump pardon his co-conspirators if they are implicated in crimes against the United States that he is involved in also? I don’t think so. I have heard that from pundits on cable news although I have not seen that question answered in other online sources or articles by a reliable source.

There is some reporting that Mueller has a grand jury indictment of a “Defendant A”. It is only speculation right now, but it would make sense that as evidence proceeds in the grand jury looking into Russian meddling in the election and obstruction of justice, Mueller is accumulating charges against this unnamed Defendant A who is most likely to be Trump himself. Why would Mueller do that? One obvious answer is that he is accumulating charges against Trump to checkmate Trump if he tries to pardon his own co-conspirators in crimes he was also involved in.

There is debate about whether a sitting president can be indicted while he is in office. Mueller might or might not be able to indict Trump for his crimes in a conspiracy against our country while he is president. However, Trump would definitely be indictable after leaving office. (He would probably seek a pardon from Pence if he is impeached). But I think Mueller may be playing the long game here with Defendant A. This is speculation, but it makes sense to me that Mueller would be guarding against the pardon power of the president as he accumulates evidence in the grand jury. If Trump is implicated in a conspiracy where there are federal charges of violations such as violations of hacking laws (hacking is illegal and if the Trump campaign worked in concert with a foreign entity, namely Russia to benefit from that hacking- that is a crime), accessory after the fact to violate election laws, campaign finance laws, the Espionage Act, possibly racketeering charges (RICO), all of these are possible federal criminal violations that might be charged depending on the evidence coming out in the grand jury,

We shall see. This should be interesting.

Opinion | No, Trump can’t pardon himself. The Constitution tells us so.

And so does hundreds of years of legal tradition.