President Trump should pardon Manafort immediately

President TrumpDonald John TrumpZuckerberg launches public defense of Facebook as attacks mount Trump leaning toward keeping a couple hundred troops in eastern Syria: report Warren says making Israel aid conditional on settlement building is 'on the table' MORE should immediately pardon Paul ManafortPaul John ManafortNew York City lawmakers vote to close Rikers Island jail by 2026 Perry says Trump directed him to discuss Ukraine with Giuliani: report Cuomo signs measure allowing New York to press charges despite presidential pardon MORE for his conviction on eight counts related to tax evasion, bank fraud and hiding foreign bank accounts. 

The pardon would gut special counsel Robert MuellerRobert (Bob) Swan MuellerFox News legal analyst says Trump call with Ukraine leader could be 'more serious' than what Mueller 'dragged up' Lewandowski says Mueller report was 'very clear' in proving 'there was no obstruction,' despite having 'never' read it Fox's Cavuto roasts Trump over criticism of network MORE’s investigation into the president, rectify a grave legal wrong and would send a legally permissible message to other defendants who are contemplating cooperating with Mueller not to do so.                                                                                         

ADVERTISEMENT

Prosecutors have unclean hands and impure motives in bringing these charges against Manafort. This wrong would be rectified with a pardon. Statements made by Judge T.S. Ellis III in May give President Trump the coverage he needs to pardon Manafort. 

Judge Ellis, a 30-year member of the federal bench and one of the most widely respected jurists in the country, told prosecutors, “You don’t really care about Mr. Manafort’s bank fraud. You really care about getting information Mr. Manafort can give you that would reflect on Mr. Trump and lead to his prosecution or impeachment.”

Judge Ellis further cautioned the special counsel’s office against seeking “unfettered power” and said its statements that it is investigating allegations related to the 2016 election amount to “lying.”

These are extraordinary comments from a widely respected judge to make, and they illustrate the real, impure motives prosecutors had in charging Manafort. A pardon would right this wrong.  

Other presidents have granted pardons for far more questionable reasons. President Clinton gave Marc Rich a pardon after his ex-wife made large contributions to the Democratic Party, to Hillary ClintonHillary Diane Rodham ClintonClinton trolls Trump with mock letter from JFK to Khrushchev Trump-Graham relationship tested by week of public sparring Sunday shows — Mulvaney seeks to tamp down firestorm over quid pro quo comments, Doral decision MORE's Senate campaign and to the Clinton Library foundation during Bill ClintonWilliam (Bill) Jefferson ClintonHouse Democrat pledges 'there will be open hearings' in impeachment inquiry Democrats dig in ahead of Supreme Court ruling on 'Dreamers' Even with likely Trump impeachment, Democrats face uphill climb to win presidency MORE's presidency. 

Clinton also pardoned Roger Clinton Jr., his half-brother who had been convicted in 1985 for cocaine possession and drug trafficking.  

President George W. Bush commuted the prison sentence of I. Lewis “Scooter” Libby, Vice President Dick Cheney’s former chief of staff.

President Obama commuted the sentence of Chelsea Manning, a former U.S. Army soldier. Manning was convicted of violating the Espionage Act and stealing government property related to the leaking of 750,000 pages of classified or sensitive documents. Many in the intelligence community said Manning's actions placed American lives at risk.

While the criticism in the press for a pardon would be ferocious, it is something the president could weather. Mueller’s public image has sunk to an all-time low with both Republicans and Democrats since he began his probe into possible collusion between the Trump 2016 presidential campaign and Russia. 

A recent POLITICO/Morning Consult poll found a record 53 percent of Republicans surveyed now view the Russia investigation in an unfavorable light. That’s a 26-point spike since July of last year, when the poll first started asking voters whether they viewed Mueller favorably or unfavorably.

Mueller’s unfavorable numbers have also hit highs among both Democrats and independents, at 24 percent and 33 percent, respectively.

Thirty-six percent of all registered voters view Mueller unfavorably, which represents the highest level since the polling first raised the topic 11 months ago. Back then, 23 percent of all voters said they viewed Mueller negatively.

Some believe a pardon of Manafort would be an act the special counsel’s team would argue is in furtherance of obstruction of justice and that abuse of the pardon power could be grounds for impeachment. Legally, this argument is specious at best. 

While clearly a pardon would send a de facto message to others like Michael Cohen who are contemplating cooperating against the president not to do so, this is simply a byproduct of a pardon that, as a matter of law, could not be grounds for a conspiracy.  

In the United States, the pardon power for federal crimes is granted to the president under Article II, Section 2 of the United States Constitution, which states that the president "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."  

The U.S. Supreme Court has interpreted this language to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites and amnesties. 

The pardon power extends only to federal crimes. Otherwise, presidents are free to use it as they see fit. As the Supreme Court put it in an 1866 decision, Ex parte Garland, involving a former Confederate senator, the power “is unlimited” and “it extends to every offense known to the law.”

Any arguments by Mueller that the president is using pardons to obstruct justice are wrong as a matter of law. The president cannot be faulted for using a right granted him under Article II of the U.S Constitution simply because some believe it will send a “message” to others who may face charges not to cooperate with Mueller. 

A pardon of Manafort would rectify a grave wrong and simply continue a long line of controversial presidential pardons. It is something President Trump should do immediately.   

Andrew Stoltmann is the president of the Public Investors Arbitration Bar Association and an adjunct securities law professor at Northwestern University’s School of Law in Chicago. Follow him on Twitter @stoltmann1971