President Donald Trump’s pardon of Dinesh D’Souza on Thursday sparked speculation that it was a signal to his associates not to cooperate with Robert Mueller’s Russia probe.
Roger Stone, Trump’s own informal adviser and a potential defendant in the Mueller investigation, seemed to think as much: “The special counsel has awesome powers, as you know, but the president has even more awesome powers,” Stone told the Washington Post.
If that is the strategy, it may be backfiring legally and politically.
First, even if it did send a signal to Michael Cohen, Paul Manafort, and other potential confederates, it sent that same obvious signal to everyone else. If you’re worried about being charged with obstruction of justice, false statements, and bribery, seeking out people convicted of obstruction, false statements, and bribery for pardons might make you feel better, but it is a terrible idea in the long run.
The biggest challenge for prosecutors in these kinds of cases is proving the mens rea, the mental element, like intent. For example, in obstruction and bribery, a prosecutor needs to prove “corrupt intent,” which is not easy to do. Of course, Trump helped prosecutors by telling Russian officials and then NBC’s Lester Holt and a national television audience that he fired James Comey because of the Russia investigation. The fact that he is saying the opposite is true now is not helping him: It’s just a further indication that he knows what he did could have been a crime. These pardons offer prosecutors additional evidence of Trump’s corrupt intent to obstruct justice.
His pardon of Sheriff Joe Arpaio in August came soon after news that Mueller’s investigation was heating up, followed by Trump tweeting about his pardon powers. It also came as Trump’s lawyer John Dowd was reportedly dangling pardons to Manafort and Michael Flynn. Earlier that summer, Trump reportedly tried to fire Mueller. Similarly, Trump offered Scooter Libby a pardon, the timing of which was suspicious. Four days earlier, the FBI had search Michael Cohen’s office, home, and hotel room in one of the biggest turning points of the investigation. Of course, it also seems relevant that Libby was convicted of false statement and obstruction of justice, and by a special prosecutor, an office—similar to Mueller’s—that some conservatives have called illegitimate.
D’Souza’s pardon similarly indicates a proclivity to forgive campaign finance charges, just as evidence is being gathered by prosecutors of a potential campaign finance violation by Cohen or even Trump. The president also floated possible pardons for Rod Blagojevich and Martha Stewart, who were convicted of bribery, obstruction, and false statements—again, the charges faced by Trump’s associates and potentially Trump. In the event that Trump were to ever face a trial—impeachment or otherwise—prosecutors could cite all of these events as evidence of corrupt intent.
Some have argued that Dowd’s dangling of pardons to Manafort and Flynn was its own act of attempted bribery—an effort to trade official acts for something of value, silence. These strategic pardons could be evidence to bolster such charges.
Second, these pardons also undermine the validity of future pardons. Ethan Leib and I, citing new historical research from England and founding-era America, have argued that the president’s duty to “take Care that the laws be faithfully executed” and his oath to “faithfully execute his office” are fiduciary duties against corrupt self-dealing. Under this rationale, if federal prosecutors indict Michael Cohen, and Cohen walks into court with a pardon offered entirely to protect the president, hypothetically, the prosecutors could ask the judge to ignore the pardon as a faithless execution of the law and allow the prosecution to proceed. The challenge would be to prove that the president’s execution of the pardon was corrupt. These pardons of D’Souza and others are additional evidence of a deliberate and corrupt plan to signal pardons in exchange for silence. There are clearly uphill battles for this legal argument as a matter of constitutional interpretation, but the more concrete evidentiary questions just got a little easier this week.
Third, as I’ve explained in Slate, presidential pardons don’t affect state criminal law, and Michael Cohen, Paul Manafort, and Michael Flynn are facing a long list of potential state crimes. Federal pardons cannot save them.
There is a potential twist in a few states, however. New York and some other states have statutes that add protections against double jeopardy. Because of this, if Cohen pleaded guilty to a set of charges—or a case against him were to go to trial—and he then received a pardon, he could not be charged based on those same facts in New York state court.
As I’ve also argued before, New York should change these laws to make it easier for the state to prosecute in the case of a corrupt pardon. A day after I made this argument, the state’s previous attorney general began the push for such a law. But that effort appeared to have stalled in recent weeks.
Right on cue, Trump’s pardon of D’Souza triggered a new push by the new New York Attorney General Barbara Underwood to fix this problem. New York legislators who passed what could become a “pardon loophole” originally meant to protect criminal defendants from multiple trials, above and beyond federal protections. They surely did not intend for presidents to exploit the statute with well-timed pardons to save their co-conspirators from facing justice.
Underwood cited the D’Souza pardon in her public statement endorsing the Lentol/Kaminsky bill to close the pardon loophole. With only a few days left in New York’s legislative session, it looked like time would run out before action was taken. But the D’Souza pardon added urgency to the fix and could inspire the public to push legislators to pass the bill. Prosecutors, of course, could still strategically bring a limited set of charges in these cases, but changing the law would be a good public rebuttal to Trump’s signal that he thinks he is above the law.
A 2003 Supreme Court decision, Stogner v. California, offers increased urgency for the state to pass the fix this session. If a defendant were to plead guilty or start his trial in one of these cases, receive a pardon, and New York were to change the law after the fact, that defendant could likely claim that the new law does not apply to them as an ex post facto change. Which is why the state needs to act now.