On Wednesday, the Wall Street Journal reported that President Donald Trump was recently advised by one of his former lawyers to expect his current lawyer, Michael Cohen, to flop like a fish. On a scale of 1 to 100, with 1 being least likely to sacrifice himself to protect the president, Cohen “isn’t even a 1,” Jay Goldberg advised Trump following last week’s FBI raids on Cohen’s residence, hotel room, office, and safety deposit box.
Given the Cohen probe’s high potential to implicate the president and the serious legal threat to Cohen himself, Trump seems to have more reason than ever before to attempt to sabotage the criminal investigations that have come to haunt his presidency. At the same time, though, the Cohen case shows how the Mueller probe has grown new tentacles that would make it much, much harder to cleanly obstruct both investigations with a simple firing or two.
One clear avenue still exists for Trump to plunge this nation into a paralyzing constitutional crisis: pardons of his various cronies. Indeed, Trump reportedly spoke with Cohen by phone on Friday, the same day that he issued a pardon to former Dick Cheney aide Scooter Libby. House Minority Leader Nancy Pelosi called the Libby pardon a clear signal of Trump’s intent to protect allies who stay loyal.
“For me, Scooter Libby was the last straw,” Rep. Adam Schiff told Slate. On Wednesday, Schiff proposed legislation he describes as a preventive measure to make Trump think twice about issuing any obstructive pardons.
Schiff’s bill would require that the Justice Department hand over to relevant congressional committees files “obtained by a United States Attorney, another Federal prosecutor, or an investigative authority of the Federal Government” about any case involving a pardon recipient in which the president or any of his relatives are implicated as a subject, target, or witness. The deadline to do this would be within 30 days of the pardon in question. The idea is that those documents could help reveal secret unseemly motives for such a pardon.
“The reason why it’s important to take up this bill is very much analogous to why it’s important to take up a bill that protects Bob Mueller right now,” Schiff said. “And that is: We’re far better off acting prophylactically to prevent the kind of crisis we would have if the president obstructs justice through either firing Bob Mueller or abusing the pardon power.”
It’s hard to read the language of the legislation—with its specific references to various U.S. prosecutorial bodies—and not think that it was written with both Robert Mueller’s special counsel probe and the Southern District of New York’s Cohen investigation in mind.
Schiff says that pardons of the various targets in both of those investigations would be covered by his legislation.
“It would certainly apply in the case of [Paul] Manafort, or [Michael] Flynn, or [Richard] Gates, or [George] Papadopoulos,” Schiff said.
Even though Cohen hasn’t been charged yet, Schiff says he would also be covered by the proposed law.
“[It would] also apply in the Michael Cohen investigation to the degree that the president is a witness, for example, in the issue of whether the payment to Stormy Daniels was a violation of campaign finance law because it was made to help the president’s campaign,” Schiff noted. “Whether the president was aware of that payment or not, whether the president authorized that payment—he would be an essential witness in that.”
The threat that Trump might pardon any one of these former aides is not an idle one. “[Given the] obvious political character of [Trump’s previous pardons], I’d say that Schiff is right about the signaling function of the Libby pardon,” Frank Bowman, a University of Missouri School of Law professor and former federal prosecutor, told Slate.
Schiff, for his part, cited Trump’s pardon of former Arizona sheriff Joe Arpaio as one that, at the very least, demonstrated Trump’s willingness to pardon political cronies in a constitutionally dubious way.
Perhaps more significantly, the New York Times recently reported that former Trump attorney John Dowd broached the possibility of Trump pardons for Manafort and Flynn with their respective lawyers last year.
While it would be unconstitutional—under the 1974 Supreme Court precedent Schick v. Reed—for Congress to attempt to limit the presidential pardon power through legislation, Schiff’s bill avoids that trap by seeking to create disclosure around pardons rather than trying to constrain them.
While Schiff expects such a law—which could only ultimately be enforced by subpoenas and contempt-of-Congress issuances—would be contested in court by the Department of Justice, it seems as though it would have a good chance of passing constitutional muster.
“It looks to me like it’s both constitutional and clever,” assistant professor at the University of Chicago Law School Daniel Hemel told me in an email. Hemel could envision a constitutional challenge on executive power grounds, “but I doubt that argument prevails.”
Meanwhile, it’s possible that the current bounty of investigative documents in both the Mueller and SDNY investigations could offer some insight into how Trump may have “corrupt intent”—the necessary ingredient for obstruction of justice—in mind in thinking about his pardon power. It’s entirely conceivable Cohen, as Trump’s lawyer, discussed pardons with Trump in a way that was recorded and is now in the possession of investigators. It’s similarly conceivable that such conversations would show an intent to obstruct justice by either man. And while it might not be possible to prosecute Trump for such a crime at the moment, given the DOJ policy against indicting a sitting president, there’s no reason Cohen couldn’t be prosecuted in such a case. These conversations need not be considered covered by attorney-client privilege because of “the crime-fraud” exception that says privilege does not apply when a communication is used to further a crime.
Suppose Cohen were on tape saying, “Big D, Manafort and Gates really have the goods on you if they spill their guts. They could say stuff that would get you impeached or indicted if they went to the grand jury. You gotta shut their mouths by pardoning them.” If you had something like that, it could be criminal.
One would imagine that Cohen might be a bit more subtle than that, but then again, he is not exactly known for his subtlety.
At the very least, Schiff’s bill could signal to Trump that if he abuses his pardon power, the nation will learn about it.
“I’m not sure how this would necessarily interfere with the pardon power, though it could conceivably discourage its irresponsible exercise before the fact,” Margaret Colgate Love, the U.S. pardon attorney from 1990 to 1997 and one of the foremost experts on presidential pardons, told me over email.
Schiff seemed to acknowledge that the road to passage will be incredibly steep in a Republican-controlled Congress that has recently done more to bolster Trump’s attacks on the Justice Department than to show any inclination to pre-emptively defend the rule of law. On Wednesday, the Washington Post reported that some of Schiff’s House colleagues were leading a charge that would seem to set up Deputy Attorney General Rod Rosenstein, who has overseen or approved of the various Trump investigations, for impeachment or firing. Similarly, Senate Majority Leader Mitch McConnell said on Tuesday that he would not advance to the floor legislation that would protect Mueller from firing.
Schiff still thinks his legislation is useful as a signal to Trump of what the president can expect from Democrats, should Republicans fail to act to protect the Constitution and lose control of the House chamber come the fall.
“Even if we aren’t successful in getting the GOP Congress to take it up, if we can gather enough support for it that the White House knows to a reasonable certainty that if they abuse the pardon power, these files will end up making their way to Congress and that information will ultimately be shared with the public, then it may be a deterrent nonetheless,” Schiff told me.
Whether that’s actually true, it is at least canny. Democrats have been increasingly reluctant to even hint that impeachment would be in the cards should they take back the House chamber in the fall. Proposing bills like this one, though, communicates to Democratic voters that Democratic lawmakers will do something to ensure possible Trump misdeeds see the light of day should the party win in November.
“This would not be discretionary anymore, this would be required by law that these files be turned over to Congress so that Congress can understand exactly what the evidence is against a particular target and how the president or his family may be implicated,” Schiff told me. “We’re better off avoiding the constitutional crisis than waiting for it to happen.
This piece was originally published at Slate.