Thursday Reads: This Sh**t Never Ends!Posted: March 29, 2018
As usual in the horrifying new world of Trump, there is so much shocking news that there’s no way to deal with all of it. I guess the top story has to be that Trump’s former lawyer John Dowd dangled pardons in front of Michael Flynn and Paul Manifort last summer.
The New York Times: Trump’s Lawyer Raised Prospect of Pardons for Flynn and Manafort.
A lawyer for President Trump broached the idea of Mr. Trump’s pardoning two of his former top advisers, Michael T. Flynn and Paul Manafort, with their lawyers last year, according to three people with knowledge of the discussions.
The discussions came as the special counsel was building cases against both men, and they raise questions about whether the lawyer, John Dowd, who resigned last week, was offering pardons to influence their decisions about whether to plead guilty and cooperate in the investigation.
The talks suggest that Mr. Trump’s lawyers were concerned about what Mr. Flynn and Mr. Manafort might reveal were they to cut a deal with the special counsel, Robert S. Mueller III, in exchange for leniency. Mr. Mueller’s team could investigate the prospect that Mr. Dowd made pardon offers to thwart the inquiry, although legal experts are divided about whether such offers might constitute obstruction of justice.
Mr. Dowd’s conversation with Mr. Flynn’s lawyer, Robert K. Kelner, occurred sometime after Mr. Dowd took over last summer as the president’s personal lawyer, at a time when a grand jury was hearing evidence against Mr. Flynn on a range of potential crimes.
Flynn ultimately took the safe route and agreed to cooperate with the Mueller investigation; but this could explain why Paul Manafort is holding out even though the evidence against him is overwhelming and he could face life in prison if convicted.
Constitutional experts are now discussing whether Trump could get away with pardoning Manafort and others, even if he did it with corrupt intent. Some opinions:
Alex Whiting at Just Security: Why Dangling a Pardon Could Be an Obstruction of Justice—Even if the Pardon Power is Absolute. A brief excerpt:
Some experts have argued that the pardon power is absolute and that the President’s motives in issuing a pardon thus could not be questioned, while others contend that it could be a crime to issue a pardon for corrupt purposes (such as in exchange for cash). But the debate over the absolute nature of the pardon power is actually not relevant to the alleged incidents involving Trump’s lawyer. Indeed, that entire debate can be set aside for the moment. Why? Because there’s been no pardon. Instead, a pardon has only been dangled before Flynn and Manafort, and the analysis of whether that action could become part of an obstruction case against Trump raises entirely different considerations….
The pardon dangle works completely differently—and in important respects has the opposite effects. First, this kind of dangle is not a public act. Therefore, as long as it remained secret, it could be done without incurring any of the political downstream consequences that come with actually pardoning someone. It hides the President from scrutiny rather than exposes him to it as a potential check on the use of the power. Second, the objective of the dangle appears to have been to foreclose the prospect of Flynn and Manfort’s cooperating or testifying. Once again, this is the opposite effect of an actual exercise of the pardon. The message of the dangle was sufficiently clear: hang in there and keep fighting (do not cut a deal with the special counsel) because you will be pardoned before you spend a day in jail. The President and his lawyer’s hope would have been that with the threat of jail eliminated, neither former aid would feel compelled to plead guilty and cooperate with Mueller to reduce his sentence. But, since they were not actually pardoned or not yet anyway, they still kept their Fifth Amendment privileges, and so Mueller could not simply demand they testify before the Grand Jury. In this way, the dangle could operate to stop any cooperation from Flynn and Manafort, who could then be pardoned later if and when they were indicted or even after their cases went through pretrial, trial and appeal. Indeed, you also have to put yourself back at the time these events all took place: before Manafort was indicted and Flynn pleaded guilty. That’s when the dangle could work its magic.
Because a pardon dangle is secret and seeks to discourage cooperation with an ongoing investigation without public scrutiny or consequences, it should be analyzed differently than a pardon when it comes to an obstruction case.
Former U.S. Attorney Harry Littman at The Washington Post: We may know why Paul Manafort has kept quiet. But his bet is still risky.
Manafort’s refusal to cooperate can’t be driven by a rational calculation that he has any reasonable chance of escaping conviction, multimillion-dollar legal fees and a prison sentence that will result in years behind bars.
The indictments against him lay out an overwhelming case of money laundering in particular. The meticulously gathered evidence will be as clear for the jury as a laundry detergent commercial: The jury will see the dirty money go in and the clean money come out. To the extent there had been a small risk, inherent in paper-driven chases, that the jury could become bored at the accounting presentation and tune out, Mueller now has a narrator for the trial in Manafort’s co-conspirator Rick Gates.
So is hoping for a Trump pardon a good bet for Manafort?
…the Times story does not definitively solve the Manafort mystery. First, Dowd’s reported overture, particularly if done with the president’s knowledge or consent, could have constituted a conspiracy to obstruct justice, a separate impeachable offense. That presumably is why the story includes a categorical denial from Dowd that he ever discussed pardons for the president’s former advisers with lawyers. For Dowd, the conduct would be putting his license at risk.Second, Manafort surely recognizes that he can’t fully count on Trump, both because the president is a habitual liar and because the political dynamic is subject to such extreme and violent turns. (Of course, under this hypothesis, Manafort retains the valuable insurance policy of spilling the goods if Trump double-crosses him, leaving both huge losers in a real-life prisoners dilemma.)
Third, Manafort could still be required to testify after any pardon, when he would no longer be in federal jeopardy. Undoubtedly, the plan would be for him to deny assurances of a pardon from Trump. Still, were Mueller to catch him in a lie, the special counsel would surely come down on him.
Finally, it is likely that in the event of a pardon for federal crimes, which is all Trump can provide, some state attorneys general, such as New York’s Eric T. Schneiderman, would prosecute Manafort for financial crimes under their potent state statutes.
Maybe Manafort figures a possible pardon is a better bet than hoping Putin doesn’t send his goons to shut him (Manafort) up for good.
A few more pardon stories:
Bloomberg: Pardon Talk Could Put Trump Lawyer in Hot Water.
The Washington Post: This overlooked part of the Constitution could stop Trump from abusing his pardon power.
Another big story broke late yesterday. Trump fired Veterans Affairs Secretary David Shulkin. Today Shulkin is speaking out, claiming he was fired because he opposed privatizing the VA. Shulkin spoke to NPR’s Morning Edition:
Fired Veterans Affairs Secretary David Shulkin tells NPR’s Morning Edition that political forces in the Trump administration want to privatize the VA — and that he was standing in the way.
“There are many political appointees in the VA that believe that we are moving in the wrong direction or weren’t moving fast enough toward privatizing the VA,” he said. “I think that it’s essential for national security and for the country that we honor our commitment by having a strong VA. I was not against reforming VA, but I was against privatization.”
Those political forces may be why Shulkin says he wasn’t allowed to speak out to defend himself against an ethics controversy over use of funds on a trip to Europe that he says was overhyped and intended to weaken him.
“This was completely mischaracterized,” Shulkin said. “There was nothing improper about this trip, and I was not allowed to put up an official statement or to even respond to this by the White House. … I think this was really just being used in a political context to try to make sure that I wasn’t as effective as a leader moving forward.”
Shulkin argued his case in an op-ed at The New York Times: David J. Shulkin: Privatizing the V.A. Will Hurt Veterans.
That’s a lot of news, but I’ve barely touched on everything that’s happening. Here’s a shocking Trump corruption story that broke at The Guardian this morning: FBI looked into Trump plans to build hotel in Latvia with Putin supporter.
In 2010, a small group of businessmen including a wealthy Russian supporter of Vladimir Putin began working on plans to build a glitzy hotel and entertainment complex with Donald Trump in Riga, the capital of Latvia.
A senior Trump executive visited the city to scout for locations. Trump and his daughter Ivanka spent hours at Trump Tower with the Russian, Igor Krutoy, who also knows compatriots involved in arranging a fateful meeting at the same building during the 2016 US election campaign.
Then the Latvian government’s anti-corruption bureau began asking questions.
The Guardian has learned that talks with Trump’s company were abandoned after Krutoy and another of the businessmen were questioned by Latvian authorities as part of a major criminal inquiry there – and that the FBI later looked into Trump’s interactions with them at Latvia’s request.
Those involved deny that the inquiry was to blame for the deal’s collapse.
Latvia asked the US for assistance in 2014 and received a response from the FBI the following year, according to a source familiar with the process. Latvian investigators also examined secret recordings in which Trump was mentioned by a suspect.
This means the FBI looked into Trump’s efforts to do business deals in the former Soviet Union earlier than was widely known. Robert Mueller, the special counsel, is now investigating other Trump dealings with Russians as part of his wide-ranging criminal inquiry into alleged collusion between Moscow and members of Trump’s 2016 campaign team.
The Riga developers saw their potential partner in New York as a ticket to lucrative western revenues.
This shit just never ends. I haven’t even touched on the North Korea news or the Bolton mess or the fact that Trump wants to put his personal physician in charge of the VA. More headlines to check out:
The Washington Post: Who is Trump’s new Veterans Affairs pick, Ronny Jackson?
The Washington Post: Three big questions about a Trump-Kim summit.
Talking Points Memo: WSJ: Kushner Has Phoned Bolton For Advice In The Past Year.
The Daily Beast: ICE Now Detaining Pregnant Women, Thanks to Trump Order.