President Trump hasn’t directly addressed the prospect of his pardoning either his former campaign chairman or former personal lawyer, but the U.S. Constitution does give him the power to do so.
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The likelihood of Trump issuing a pardon in either case remains unclear, with conflicting reports coming from two top figures close to Trump. White House press secretary Sarah Sanders said today that pardons are “not something being discussed in the White House and the president has not made a decision on pardoning Paul Manafort or anyone else,” but his personal attorney Rudy Giuliani told The Washington Post that Trump did indeed raise the issue with his lawyers several weeks ago and agreed to hold off on a possible pardon.
That said, according to one legal scholar, it would be imprudent for him to pardon lobbyist Paul Manafort, who was convicted Tuesday in a tax fraud case, or attorney Michael Cohen, who pleaded guilty the same day to campaign-finance violations and other charges.
“It would be both a legal and a strategic error to pardon Paul Manafort, not to mention the potential political repercussions,” professor Lisa Kern Griffin of the Duke University School of Law said.
“He has pardon power and … any pardon he issues for a federal offense will be valid but he may commit a crime himself by using the pardon power to impede an investigation or prosecution,” she explained.
If Trump decided to pardon Manafort in an attempt to stop the former campaign chairman from cooperating with special counsel Robert Mueller’s investigation into possible Russian interference in the 2016 election, Griffin said, that action could be an example of obstruction of justice.
“The president seems inclined to tease the idea of a pardon,” she said, referencing Trump’s praise for Manafort after the guilty verdicts were announced, “but I doubt he will be foolhardy enough to issue one.”
As for Cohen, “he seems a less likely candidate [than Manafort] for a Trump pardon,” given how Trump has slammed Cohen for “flipping” to make a deal, “but anything is possible,” Griffin added.
The presidential pardon is possible in both cases because the legal proceedings stemmed from federal laws, which fall under the purview of the Constitution’s pardon power granted to the president.
The exact wording in Article II, Section 2 of the Constitution stipulates that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
The pardon power “is extremely broad and has effectively four limitations, professor Griffin said.
Pardons only apply to crimes that have already taken place, she noted, therefore cannot be granted as prospective pardons or blank checks for crimes that have yet to be committed. A pardon cannot be applied to the impeachment of any official, including the president or any other high-ranking official, such as a judge, under impeachment.
As for the question of a self-pardon, “there is an extent to which this is still an open question,” professor Griffin said.
“If he is charged with federal offenses, most constitutional analysts have concluded that the president could not pardon himself for the federal offenses he may have committed.”
“A self-pardon almost certainly would not hold up in court so … it would almost certainly have to come from his successor which, of course, is what occurred in Nixon’s case,” she said, referencing President Gerald Ford’s September 1974 pardoning of President Richard Nixon in September 1974, almost a month after he resigned.
The final limitation, which appears to be relevant in the Cohen and Manafort cases, is that pardons only apply to federal crimes.
“To date, all of the charges against Cohen and Manafort are federal offenses but that does not preclude state authorities from bringing subsequent charges to the extent the wrongdoing constitutes a crime under state law,” Griffin said.
No state charges have been brought in either case but, Griffin noted, but there are a number of laws in some states that effectively match the crimes described in certain federal laws. Therefore, if a state attorney general decided to press any nearly identical state laws, a presidential pardon would not extend to those charges.
“Some of the violations, like the failure to register as a foreign agent in the Manafort case, and the campaign finance violations in Cohen’s case, are strictly federal offenses, however, some of the fraudulent activity involving banks has an analog in state law,” Griffin said.
When asked directly about the Manafort and Cohen cases, the New York State Attorney General’s Office, which would likely be the office to prosecute any crimes related to Cohen, who was based in the state, told ABC News it cannot comment on potential or ongoing investigations.
But the office did note that it has been fighting to close a loophole in the state’s double jeopardy laws, intended to protect someone from being tried for the same crime more than once, that could effectively stop someone who has been pardoned at the federal level from facing similar state charges.
“New York’s double jeopardy laws go well beyond constitutional requirements and the standards used by many other states – and could unintentionally insulate someone pardoned by the president from subsequent prosecution for related state crimes,” spokesperson Amy Spitalnick of the New York State Attorney General’s office said.
The office has been pushing for the state’s lawmakers to close the loophole since April after Trump pardoned conservative author Dinesh D’Souza, who had pleaded guilty to violating federal campaign finance laws. However, the bill was never brought to a vote in the last session, but could be attempted again next year. The status of the bill is located on the NY Assembly’s website.
That pardon “makes crystal clear [Trump’s] willingness to use his pardon power to thwart the cause of justice, rather than advance it,” New York Attorney General Barbara Underwood said at the time.
Now, Spitalnick told ABC News, the president “has repeatedly abused his pardon powers to undermine the rule of law and, especially in light of recent events, it’s more urgent than ever that the State Legislature act.”