Following Wednesday’s ruling that former Trump campaign chair Paul Manafort broke his plea deal by lying repeatedly to investigators, one obvious question has followed: what happens if President Donald Trump decides to pardon Manafort for his crimes?
A presidential pardon seems like a plausible outcome for Manafort, who might now spend the rest of his life in prison. A pardon is also probably the outcome Manafort has been angling for: lying to investigators is risky, and it would only make sense to do so if such a lie would improve Manafort’s outcomes. As John Dean, former White House counsel to President Richard Nixon during the Watergate scandal, told CNN, hoping for a pardon is almost certainly one of the few reasons Manafort continued to lie.
As a reminder: SCO says that Manafort lied about passing polling data to Kilimnik bc if he told the truth Trump wouldn't pardon him. pic.twitter.com/0BMB1Q6RNf
— emptywheel (@emptywheel) February 14, 2019
Trump would take a lot of political risk if he issued such a pardon: It would almost certainly result in fresh calls (from Democrats but also some Republicans) for impeachment proceedings.
“It would be an enormous mistake and misuse of his power to pardon,” Sen. Susan Collins (R-ME) said in August 2018. Sen. Majority Whip John Cornyn (R-TX) also said that to pardon Manafort “would be a mistake.”
“You’ve got to earn a pardon,” said Sen. Lindsey Graham (R-SC). “I think it would be seen as a bridge too far.”
A pardon wouldn’t protect Manafort if he tried to lie again about his knowledge of the campaign and administration’s dealings with Russia and the Mueller investigation.
“The pardon is only retrospective, so if [Manafort] gets a pardon now, and he goes and he lies, he’s going to get indicted for his lies. Trump would have to pardon him again,” said Richard Painter, the former chief ethics lawyer for President George W. Bush. “Once he gets a clean pardon from Trump, [Manafort] is completely off the hook. His incentive then is to not commit future violations.”
And therein lies an issue for the president, who recently referred to Manafort as a “brave man.” At the moment, Painter said, Trump holds all of the leverage in his relationship with Manafort — leverage he would lose if he issued a pardon.
“If [Manafort] gets that pardon from Trump, he has every incentive… to come clean and provide all that information, and that’s exactly why Trump is probably delaying on the pardon,” Painter said. “And there’s probably a cat-and-mouse game going on here, where Trump is delaying on the pardon. Because the longer he delays on the pardon, the longer he delays the time in which Manafort would have an incentive to defect and turn on Trump — and Manafort is not going defect and turn on Trump so long as he wants the pardon. So that’s why this is sort of a stalemate that’s dragging out.”
Here's the @RepAdamSchiff answer that @Maddow was talking about with @Lawrence, that Manafort may have been lying because telling the truth would be so damaging to Trump that it would blow Manafort's chance at a pardon. pic.twitter.com/lqIS9Ica03
— Maddow Blog (@MaddowBlog) February 14, 2019
Trump would face another problem should he pardon Manafort: Once he does, Manafort’s ability to cite his Fifth Amendment rights to refuse to share self-incriminating testimony regarding the investigations into Russia and the Trump campaign would effectively disappear. Such a pardon would compel Manafort to give candid testimony on the topic, either before a court or even before Congress if Democrats issue a subpoena.
“If Manafort is pardoned, he would no longer be eligible to claim the Fifth Amendment privilege against self-incrimination — at least as to matters covered by his pardon,” Cornell Law Professor Jens David Ohlin told ThinkProgress via email. “The whole point of the Fifth Amendment is to prevent someone from placing themselves in jeopardy by their own testimony. But, by definition, someone who is pardoned can’t face any jeopardy at all.”
Painter concurred, saying, “The minute he’s pardoned, he has no Fifth Amendment right anymore to refuse to testify, on at least federal crimes.”
Manafort could refuse to testify following a pardon, but he would then be jailed until he agreed to testify, effectively returning him to the situation he’s currently in. “Congress can compel him to testify before a Congressional Committee,” Harvey Silverglate, a civil liberties attorney, told ThinkProgress via email. “If he refuses, Congress can hold him in contempt of Congress because he does not have a Fifth Amendment defense against a congressional subpoena. Congress can enforce such a contempt order in a number of ways. In the old days, Congress used to order a recalcitrant witness held in a cell in the Capitol building until the witness agreed to testify.”
All of this would take place in a maelstrom of post-pardon political fallout. “Trump would be vulnerable certainly to impeachment and — depending on what position Mueller takes — perhaps even to prosecution (though that’s quite unlikely),” Harvard Law Professor Mark Tushnet said in an email.
It would also present arguably the most controversial pardon seen in modern American history.
To be sure, past presidents have issued controversial pardons. For instance, President H.W. Bush opted to pardon Elliott Abrams, a diplomat involved in the Iran-Contra scandal during the Reagan administration who was convicted in 1991 for withholding information from Congress. (Bush pardoned him in 1992 after losing his bid for re-election.) That pardon raced back into the news in recent weeks after Secretary of State Mike Pompeo appointed Abrams special envoy to Venezuela. Abrams’ history came up during a House hearing in which Rep. Ilhan Omar (D-MN) brought up his crimes.
A Manafort pardon wouldn’t even necessarily be Trump’s first controversial pardon. Lewis “Scooter” Libby was an adviser to former Vice President Dick Cheney, and was indicted on four counts of perjury, obstruction of justice, and making false statements about the Valerie Plame affair. Trump pardoned Libby in 2018.
“Trump doesn’t have an incentive to give [Manafort] the pardon right now, because as soon as he gives the pardon then the next next step is [Manafort is] forced to testify, has no Fifth Amendment rights, and Manafort has every incentive then to come completely clean because he doesn’t want to commit any future crimes,” Painter said. “The pardon is an opportunity [for investigators] to get information from him immediately, force him to give information — and the reaction to the pardon ought to be very swift, with prosecutors working hand in hand with judges, forcing him immediately to provide information.”