The legal poobahs are all aflutter, issuing statements as to how this is the classic first prosecutorial step: The prosecutor starts with a vulnerable target at the bottom and works his way up to the top. Special Counsel Robert Mueller’s charges against President Donald Trump’s former campaign manager Paul Manafort are certainly serious enough, if proven, to put him in jail for the rest of his life. Surely, he’ll crack, say the cognoscenti, and as part of plea bargain, give evidence against somebody more important, perhaps even someone whose last name is Trump, or someone related to a Trump.
Not so fast. While that process works for run-of-the-mill prosecutions, this one is unique because the ultimate target has a vast arsenal of unique defenses he can (and in my opinion, certainly will) deploy.
To begin, he can fire the prosecutor. He fired then–FBI Director James Comey for self-protective reasons. The Democrats and academia screamed “obstruction of justice” — but that was months ago, and the man still sits in the Oval Office. Trump can similarly deal with Comey’s de facto successor and fire Mueller, Deputy Attorney General Rod Rosenstein and anybody down the line who threatens him. We would then be, theoretically at least, faced with the Founders’ worst nightmare: an imperial presidency. But if the President were going to do that and risk impeachment for such an obvious obstruction of justice, he would have done so earlier; it does seem fair to assume this horse has left the barn.
The operative element of the prosecutor’s strategy is the defendant’s fear. But do Manafort and others close to the Administration really have anything to fear from Mueller? No, they do not, because the President is not going to sit by and let either himself or his children go to jail. Period. This is not the normal ballgame.
I project this scenario: Manafort, having already pled “not guilty,” clams up. He has no incentive to speak because he has no fear. Months (or years) from now, just before trial, Trump issues some tweets to the effect of This is all an attack by Hillary Clinton supporters!, and he pardons Manafort and anybody else who has been indicted by Mueller. If Mueller then brings Manafort before the Grand Jury and demands he answer questions because he no longer has any legitimate fear of federal prosecution because of his pardon, Manafort will take the Fifth because he is still subject to criminal liability in New York State, where much of the money laundering occurred. Manafort’s assertion of the privilege will be upheld because Trump’s pardon affected only federal charges.
When we represented Vice President Spiro Agnew, we negotiated for him as part of his plea bargain a complete discharge of any other federal charges — in other words, effectively a full pardon for everything and anything beyond the single tax count to which he pleaded nolo contendere. In subsequent proceedings brought by the State of Maryland, Agnew (represented by other counsel) refused to testify on the ground his “pardon” covered only federal crimes, and even though the state proceedings involved the same facts as the federal claims, he was still exposed to state liability. The court confirmed the validity of his exercise of his Fifth Amendment rights.
For every move that Mueller makes, Trump has an effective counter that will disincentivize Manafort from talking. Mueller can bring Manafort back to the grand jury and give him use of immunity, which would be binding on state prosecutions. But if Manafort refuses — even then — to testify, what is the result? Criminal contempt? Like Sheriff Joe Arpaio? Trump trumps law enforcement again. Civil contempt? Perhaps, but that only lasts as long as the grand jury sits, or the civil confinement is likely to be effective. Trump has a lot of trump cards and knows how to play ‘em.
This means that the ultimate law enforcer is not Mueller, but instead public opinion and the non-legal team of Paul Ryan and Mitch McConnell via the impeachment route. But that process has almost nothing to do with the law. It is entirely political in nature. “High crimes and Misdemeanors” means, as former House Speaker Gerald Ford said, “whatever the House wants it to mean.”
While it was a Democratic House that threatened Republican Richard Nixon and a Republican House that impeached Democrat Bill Clinton, in the Agnew case political considerations produced a reverse twist. When Vice President Agnew was facing possible criminal bribery charges by the Department of Justice, we thought we could do better in Congress than in court. We argued the sitting Vice President was constitutionally immune from criminal prosecution and the only body with jurisdiction was the House of Representatives. Accordingly, Agnew asked the House to take up the matter of impeachment proceedings against himself and promised full cooperation with the effort. But Democratic Speaker Carl Albert flatly refused even to consider impeachment proceedings against the Republican Vice President because the Speaker simply was not willing to give any political credence to Agnew’s effort to escape criminal prosecution. Albert’s decision was entirely political and had nothing whatsoever to do with the merits of the prospective charges.
Things are different today. Congress and the President are at least nominally in the same party, and even if it is obvious that the President is acting in own interests, it may not be in Congress’s political interest to attempt to remove this president. While yesterday’s hypothetical question was Would Congress impeach if Trump fired Mueller?, today’s question is Will Congress impeach if Trump pardons Manafort?
Though the President may have feared risking impeachment if he fired Mueller, Trump has doubtlessly learned a lot in the last several months. The departure of Senators Bob Corker and Jeff Flake have added information to the decisional algorithm. The operative word in Flake’s recent valediction was his charge that his colleagues were “complicit” in the President’s misconduct. Would a majority of this House of Representatives prove him wrong and vote to impeach this Republican president? And even if they did, it takes only 35 of the Republican Senators to block his removal. How many of them have such courage and resolve?