Trump 'Putingate' pardons could be criminal and would be impeachable

This week, we learned that the issue of potential pardons by President TrumpDonald John TrumpGrassroots America shows the people support Donald Trump Trump speaks to rebel Libyan general attacking Tripoli Dem lawmaker: Mueller report shows 'substantial body of evidence' on obstruction MORE of defendants or suspects in the Putingate scandal is poised to explode legally and politically and creates extraordinary danger for Republicans in the midterm elections that could bring potentially catastrophic losses for the GOP.

The New York Times reported that last year John Dowd, until recently one of the attorneys representing Trump in the scandal surrounding the Russian attack against the American election in 2016, discussed the possibility of presidential pardons with lawyers representing former national security advisor Michael Flynn and former Trump campaign manager Paul ManafortPaul John ManafortNew normal: A president can freely interfere with investigations without going to jail Kremlin: No evidence of election interference in Mueller report Heavily redacted Mueller report leaves major questions unanswered MORE.  

In this story, the paper also reported that special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE has been asking witnesses about the pardon issue, strongly suggesting that this explosive subject is under active criminal investigation and that Dowd will almost certainly be directly questioned by Mueller, if he has not already been questioned.

While most of the media speculation has surrounded the role of Trump on the pardon issue and the role of Dowd, the most intriguing and potentially explosive aspect of this story is the role of Flynn for the following reasons.

Let's assume, for purposes of analysis, that the New York Times story is correct. If so, the alleged discussion of pardons with Flynn’s attorney occurred while the Mueller investigation was ongoing but before the plea bargain with Flynn was concluded.

The key point about this timing, and the reason the pardon issue is so explosive, is that Flynn knew about the pardon discussion while he and his lawyers were negotiating the terms of his plea bargain with Mueller.

The probability is very high that Flynn told Mueller the exact details of the pardon discussion with Dowd while he was finalizing his agreement with Mueller, which would have significantly increased his value to Mueller and resulted in more lenient terms for the plea deal being offered.

This is why it is so revealing and important that the Times reported that other witnesses have been question by Mueller about pardons. Again, assuming the story is correct about this, it is certain that Dowd will be questioned by Mueller, or has been questioned, about the exact details of the pardon conversation with Flynn’s lawyer and Manafort’s lawyer.

Any questioning of Dowd about pardons would treat Dowd as a potential suspect for his own role in the pardon talks and as a potential witness about Trump’s role in the pardon discussions.

This could well explain why Dowd resigned as an attorney for Trump almost immediately before the New York Times story was published, a coincidence of timing that would get the attention of any prosecutor, investigator or defense attorney.

While it is true that a president enjoys substantial powers to grant pardons, it is equally true that a pardon could also be a criminal offense if it was offered for an illegal purpose.

On the matter of the alleged discussion initiated by Dowd to lawyers representing Flynn and Manafort, there are two potential crimes that in theory could be charged.

If the pardon talk was knowingly initiated for the purpose of inducing Flynn or Manafort to not reach a plea agreement with Mueller or to falsify testimony to the grand jury or in interviews with Mueller, it could be grounds for charging obstruction of justice or charging bribery, the offering of a pardon in return for not accepting a plea bargain or committing perjury in testimony.

It is also important that the Constitution explicitly includes bribery as an impeachable offense, while obstruction of justice was a central element in the articles of impeachment against Richard Nixon.

Politically, in a midterm election at a time when even Republicans in districts Trump carried by 20 percent cannot consider themselves safe, the pardon issue could be catastrophic for Republicans if they do not handle it wisely.

The smart move for Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellThe Hill's Morning Report — Mueller aftermath: What will House Dems do now? Overnight Health Care: McConnell offering bill to raise tobacco-buying age to 21 | NC gov vetoes 'born alive' abortion bill | CMS backs off controversial abortion proposal HR 1 brings successful local, state reforms to the federal level and deserves passage MORE (R-Ky.) and House Speaker Paul RyanPaul Davis RyanFEC filing: No individuals donated to indicted GOP rep this cycle The Hill's Morning Report - Waiting on Mueller: Answers come on Thursday Paul Ryan joins University of Notre Dame faculty MORE (R-Wis.) would be to tell Trump privately, and state publicly, that they would consider Trump firing Mueller or granting pardons to defendants or suspects in the Putingate scandal an impeachable offense.

If Trump pardons Flynn or Manafort and Republicans do not support impeachment, the political firestorm across the nation would be indescribable, and the political damage to Republicans in the midterms would be catastrophic.

Brent Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the U.S. House of Representatives. He holds an LLM in international financial law from the London School of Economics.