After Trump's 'Black Tuesday,' pardons would doom him

August 21, 2018, will be remembered as President TrumpDonald John TrumpTrump: Dems playing destructive 'con game' with Kavanaugh Several Yale Law classmates who backed Kavanaugh call for misconduct investigation Freedom Caucus calls on Rosenstein to testify or resign MORE’s Black Tuesday, a momentous event in American politics and law, a great inflection point that gravely endangers his presidency.

With Paul ManafortPaul John ManafortDem warns Trump: 'Obstruction of justice' to fire Rosenstein Ex-White House official revises statement to Mueller after Flynn guilty plea: report Former White House lawyer sought to pay Manafort, Gates legal fees: report MORE convicted of eight felony counts and Michael Cohen pleading guilty to eight felony counts, the credibility and clout of special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE and prosecutors in the Southern District of New York have soared to great heights.

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The issue of a potential presidential pardon of Manafort — or even of Cohen, although that seems highly unlikely, given his actions and remarks — has taken center stage in American politics and law. Some argue that pardons may be imminent. I respectfully disagree, and I warn that, if Trump issues pardons, he could destroy his party and would doom his presidency.

 

Legally, the most under-discussed aspect of the case is the magnitude of legal danger that Trump faces. If Trump is not reelected in 2020, there is no question that he could be indicted, if evidence warrants, the day after he leaves the presidency. 

If Trump leaves office in January 2021, he could be indicted for a long list of potential crimes governed by statutes of limitations that are five years or longer. This could include conspiracy, obstruction of justice and other potential crimes that occurred after January 2016.

For this reason, Trump’s worst-case legal jeopardy is far more dangerous to him than much of the public discussion suggests. While pardons would dramatically increase the legal dangers to Trump and political dangers to his party, they would give him far less protection than is generally realized. 

Trump’s more competent lawyers are probably warning him that if he pardons Manafort or anyone else targeted in the Russia investigation, he saves the pardoned party from convictions of past crimes that occurred prior to the pardon but not future crimes committed after the pardon.

If Manafort or others receive a pardon, they would quickly be subpoenaed by Mueller to testify before a grand jury under oath and without counsel present about their knowledge of the conduct of Trump and other suspects under criminal investigation. 

After being pardoned, they would be precluded from taking the Fifth Amendment protecting them from self-incrimination.

Mueller and his team, questioning a pardoned party under oath before the grand jury, would have far more information about the questions they would ask the pardoned witness before the grand jury. If they perjure themselves, the odds would be high that they are caught, prosecuted, convicted and imprisoned.

Both Manafort and Cohen, for example, are represented by highly skilled criminal lawyers who would warn them before they enter the grand jury room that they must tell the truth, the whole truth and nothing but the truth. 

If they lie to the grand jury to protect Trump, they would risk extreme legal liability and potentially long prison sentences by committing perjury that would not be covered by the previous pardon.

Trump therefore has less incentive to pardon Manafort and others than some commentators suggest. They would probably “spill the beans” to Mueller and the grand jury after the pardon.

In addition, while the president has wide pardon power, he cannot legally dangle pardons to influence witness testimony or use pardons to obstruct a prosecution that continues.

If I am wrong and Trump issues pardons to convicted felons facing long prison terms, there would be a firestorm of national outrage so powerful that it would doom him legally and politically and doom Republicans at the polls.

If Trump issues pardons before the midterm elections, he would create a nightmare scenario for himself and Republicans by guaranteeing a massive Democratic landslide, dramatically increasing public demand for impeachment and helping elect a Democratic Congress to consider it.

If Trump issues pardons before the 2020 elections, he would doom any chance of his being reelected, which would make likely his worst-case nightmare of facing major indictments and potentially severe prison time after he leaves office.

If Trump issues pardons at any time, he would incite virtually the entire Department of Justice so severely that Mueller might well request, and his superiors might well approve, that Trump be indicted under the extraordinary-circumstances exception to Justice Department guidelines that are not legally binding. 

In this event, Mueller would convey his full case to Congress to consider impeachment while simultaneously indicting Trump, which would be decided by the Supreme Court.

My guess is that Trump is being advised by his attorneys and Republican leaders in Congress to not issue pardons, for reasons stated above. If he does, it would be the most catastrophic and self-destructive mistake in presidential history.

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.