Why Trump hasn’t tried to pardon his way out of the Mueller probe — yet

Paul Manafort has been found guilty of TK counts, which carries a maximum sentence of TK years in prison.

But there’s still a chance that Manafort’s conviction could go away: if Donald Trump issues a presidential pardon.

The president possesses broad pardon powers, and Trump has already applied them to a handful of high-profile conservative figures who had been convicted of federal crimes: Joe Arpaio, Scooter Libby, Dinesh D’Souza, and two Oregon ranchers whose convictions for setting fire to public lands became a rallying cry for far-right, anti-government militia groups.

But so far, he hasn’t used his pardon powers in connection with the Russia investigation. Four of his former aides faced charges in special counsel Robert Mueller’s probe, and three of them — George Papadopoulos, Michael Flynn, and Rick Gates — have already cut plea deals. None, so far, have been pardoned.

One major reason Trump may be reluctant to pardon his way out of the Russia investigation: It could hurt him more than it would help. His issuing a pardon is a nuclear option of sorts, and could generate serious political blowback.

There are other problems too: Pardons could prevent people from pleading the Fifth Amendment in some instances. Trump also can’t pardon people convicted of state crimes, only federal ones. And then there’s the difficult question of when the best time to pardon would be.

Finally, if the president is perceived to be using pardons to hinder the Russia investigation, it could put him on uncertain legal ground when it comes to Mueller’s obstruction of justice investigation.

Trump may reach the point where he thinks he’s so endangered that he’ll try to pardon his way out of the investigation, despite all these risks. But we’re not there yet. Here’s why.

Let’s start with the obvious: if Trump pardoned close associates of his who’ve been indicted or are under investigation, it would be an incredibly controversial move on his part. The only comparable action of his so far would be the firing of FBI Director James Comey.

Comey’s firing set off a political crisis that lasted for eight days. Leaks followed one after another, and congressional Republicans struggled with how to respond. The eventual result was the appointment of Mueller as special counsel and a massive expansion of the Russia investigation — in other words, the move backfired.

In the year since, an equilibrium of sorts has held. Congressional Republicans have generally taken the position that Mueller should be allowed to do his work. Meanwhile, President Trump has insisted he is innocent and repeatedly tried to attack and undermine Mueller’s investigation politically. But he’s shied away from causing another crisis with another prominent firing, evidently calculating that doing so could cause such blowback that he’d be more hurt than helped by it.

Major pardons would be similar in import. No recent president has used the pardon power to short-circuit a continuing investigation into a serious scandal involving his administration. Doing so would cause an enormous crisis and send us into uncharted territory. It would be the biggest story in the country. More leaks would likely pour out from government officials fearing a cover-up. A Democratic takeover of a house of Congress could become more likely, which would mean yet more investigations into the administration.

That’s not to say Trump won’t do it; he fired Comey, after all. But he’s also been hesitant to follow through and cross certain lines, when he or his aides fear that the consequences of doing so would be too severe. So far, at least, a cover-up using pardons is still too far for him to go.

The political blowback isn’t the only problem. There are several practical reasons pardons wouldn’t be as effective a way for Trump to shut down the Russia investigation as one might think. Let’s start with the Fifth Amendment issue.

If Trump does pardon people, those people could then be asked to testify under oath, either by Mueller’s team or by Congress. Pre-pardon, they could have pleaded the Fifth, refusing to answer on certain issues on the grounds that they might incriminate themselves. But if they’ve been pardoned already for those matters, they’re no longer at risk of incriminating themselves — so they’d have to testify truthfully, or risk new charges for contempt or lying under oath.

You see the problem: If somebody takes a pardon to avoid telling prosecutors what they know about Trump, that person could later be compelled to ... tell prosecutors what they know about Trump.

However, Trump could theoretically pardon those new charges too. And as my colleague Sean Illing has written, the exact implications for a pardon on Fifth Amendment rights depend on what exactly the pardon is for.

For instance, if Trump pardoned Manafort on specific tax and bank fraud convictions, Manafort could still theoretically plead the Fifth on topics related to potential criminal collusion. But if Trump issued a “blanket pardon” for “all offenses” between certain dates — like President Gerald Ford did for Richard Nixon — then that person would seemingly lose their right to invoke the Fifth for any events in that time span.

So Trump would face a trade-off between maximally protecting his associates from legal jeopardy while still protecting their rights to plead the Fifth.

There’s also the potential problem that President Trump only has the power to pardon federal crimes, not state or local crimes.

Certain potential crimes relevant to Trump associates, like bank fraud, violate both federal and state law. So, theoretically, if state prosecutors went after Trump associates on state charges the president wouldn’t be able to protect them with pardons. Manafort doesn’t currently face state charges, but the New York Attorney General and the Manhattan District Attorney were also reportedly separately investigating Manafort.

Whether the state prosecution option is available will depend on what the specific crimes are and what state they were allegedly committed in. New York state currently has a “double jeopardy” law on the books that would prevent someone from being tried for a state crime if they’ve already been tried for the same crime federally. (Some legislators are discussing changing the law, but they have not done so yet.)

Still, the potential for state charges is one consideration that might lead some Trump associates to cooperate and strike a plea deal rather than hold out for a pardon — because the pardon can’t protect them from everything.

This March, Trump’s lawyers assembled a list of potential questions they thought Mueller wanted to ask the president, based on their conversations with the special counsel’s team. And one of those was specifically about pardons:

After the resignations, what efforts were made to reach out to Mr. [Michael] Flynn about seeking immunity or possible pardon?

Mueller’s team is investigating Trump for, among other things, obstruction of justice. This intriguing inclusion suggests they may consider Trump’s use or discussion of pardons for people he fears might flip on him to itself be a form of obstruction.

Indeed, NBC News reported in April, citing three sources familiar with the investigation, that Mueller has collected information on “Trump’s dangling of pardons before grand jury witnesses who might testify against him.” And Trump’s former lawyer John Dowd reportedly discussed potential pardons with lawyers for both Manafort and Flynn last year. (Flynn has since struck a plea deal with Mueller.)

Trump’s team would likely respond that he’s well within his presidential powers to pardon, or consider pardoning, anyone he wants. But some legal experts think this could still be considered obstruction of justice if it’s done with corrupt intent. In any case, it’s clear that pardons aren’t legally cost-free for Trump because they could well make his own obstruction problems with the special counsel even worse.

Back in May 2017, President Trump gave an interview to NBC’s Lester Holt that was mostly noted for his admission that the Russia scandal was on his mind when he decided to fire Comey.

But there was another telling line in that interview: He said, with emphasis, that after he made up his mind to fire Comey, he knew “there was no good time to do it!” The timing is a major problem with pardoning Russia scandal figures as well. For all the reasons stated above, these pardons could end up putting Trump’s presidency at serious risk.

Speaking pragmatically, the ideal time for a president to pardon his cronies or allies is when he is about to leave the presidency. President George H.W. Bush pardoned key figures in the Iran-Contra scandal in December 1992 — after he had already lost reelection to Bill Clinton. President Clinton controversially pardoned Marc Rich, whose ex-wife was a major Democratic donor, only hours before his second term in office ended. In both cases there was outrage, but both presidents were already headed out the door, so what did it matter?

But Trump has only been in office for 16 months. Explosive Russia-related pardons before the midterms this year would clearly be a bad idea, as they could badly hurt Republican candidates and saddle Trump with an adversarial and investigation-hungry Democratic Congress. And after the midterms, Trump’s own reelection looms, and corrupt pardons would put that in danger.

Maybe Trump would be ready to pull the trigger after the 2020 election, either if he’s defeated and has nothing more to lose or if he wins and feels vindicated by public opinion. Alternatively, if he does win a second term, he’d probably want to serve it out and accomplish things without being impeached.

Yet November 2024 will look far away indeed for Mueller’s targets, who will be saddled with enormous legal bills and could be convicted and serve hard time well before then. They’d have to be willing to rely on the word of Donald Trump that they’ll be taken care of ... eventually. When it’s convenient for him. And how comforting is that?

Jen Kirby contributed to reporting.