Pardon Me: How Bob Mueller May Have Screwed Trump's Russia Calculus
Last week, Donald Trump used his power of pardon to set free a anti-immigrant racist in Arizona. As a consequence, Arizona might quickly find out what California Republicans discovered almost two decades ago: waking the sleeping giant of the Latino vote as a bloc doesn't work out well for right wing politicians and political parties.
But Trump's pardon of Arpaio also raised a question of a possible Constitutional crisis: in June, Trump claimed the unchecked power of pardon which would extend to his family members and associates - and himself - who may have to answer for crimes committed during the Trump campaign's collusion with Russia during the 2016 campaign. After all, what really is the point of the Special Prosecutor Bob Mueller's criminal investigation into this if Trump can simply pardon everyone who proved to be traitors to the United States in order to help Donald Trump?
If Trump was sending a message to Mueller about his willingness to abuse the presidential pardon power to get away with treason, he just got his answer. Last night, Politico reported that Mueller has teamed up with New York Attorney General Eric Schneiderman in the investigation into former Trump campaign chair and Russian hired hand Paul Manafort.
While neither Congress nor Courts can directly curtail the president's power of pardon, there does nonetheless exist two Constitutional checks on the abuse of this power and its use to allow treason without consequence. These two checks are: impeachment, and... the states!
From Article II, Section 2 of the Constitution:
[The president] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
In other words, the presidential power of pardon cannot stop impeachment proceedings or negate its consequences, nor can the president issue pardons or commutations in cases of state crimes.
Politico points out that Manafort's legal jeopardy in the State of New York is outside the purview of Trump's pardon power, and that may be used as leverage to get Manafort to give Mueller and/or Schneiderman the locations where the Trump-Russia bodies are buried, so to speak. Manafort's shady real estate dealings in New York give the state a direct and legitimate lever to investigate.
The Washington Post points out how this completely rains on Trump's parade of "strategic pardons." The Post also reiterates Politico's point that regardless of connection to Russia, legal jeopardy in New York might compel Manafort to dish on Trump.
There is, however, a broader door opened with Mueller's partnership with Schneiderman that goes well beyond Manafort. Manafort is not the only close confidant of Donald Trump's that has had dealings that fall under New York or other states' purview. The partnership with New York may be the beginning of such strategic partnerships for the Special Prosecutor rather than a one-off. And all of it can be used to turn up the heat on Trump's cohorts who could no longer count on their friend in the Oval Office to give them a get-out-of-jail-free card.
Donald Trump is himself from New York, and his real estate and other business dealings conducted in the state may now come under scrutiny by the State of New York, without any way for him to pardon himself or his family. The New York AG can investigate Trump's financial dealings here at home and with Russians. It is also worth pointing out that Trump's state tax returns - filed with the State of New York - are available to the State of New York and obtainable by Schneiderman with a New York state court warrant or subpoena.
It is of course hard to predict the outcome of a federal investigation, let alone that of joint federal-state criminal investigations. But I, for one, will not be surprised if, in order to checkmate Trump on his pardon powers, Mueller concentrates on building the case for impeachment while Schneiderman focuses on criminal prosecutions in New York (and perhaps other AGs in other states) for Trump's criminal allies until all doors are closed for Trump himself.
At the end of the day, it might be the separation of powers between the state and federal governments that might spell doom for the president of a party with a states-rights fetish.
Ironic, wouldn't you say?
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