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Trump can pardon Manafort. He shouldn’t

John Yoo, law professor | October 31, 2017

The indictments on Monday of the former Trump campaign officials Paul Manafort and Rick Gates has some prominent conservatives openly considering desperate measures.

The Wall Street Journal editorial board called on the special counsel who handed up the indictments, Robert Mueller, to resign, arguing that he lacks the “critical distance” to carry out the inquiry. So did the New York Post columnist Michael Goodwin.

But the most radical suggestion came from two former Republican administration lawyers. To forestall a deepening crisis that could cripple the Trump White House, these lawyers, David B. Rivkin Jr. and Lee A. Casey, urged the president to issue a blanket pardon to anyone involved with Russian efforts to influence the 2016 presidential election.

This isn’t just a fringe possibility. A reporter raised the idea on Tuesday; Mr. Trump didn’t answer the question.

Though such a move would not violate the Constitution, it would provoke a political disaster.

President Trump has tweeted that he has the “complete power to pardon.” As someone who supported the broadest reading of executive power as a deputy assistant attorney general during the George W. Bush administration, I think that Mr. Trump has the Constitution about right. Article II declares that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” A simple look at this text shows that the framers knew how to make exceptions when they wished. They precluded pardons for impeachments or state crimes. President Trump can clearly issue a pardon, without challenge by Congress or the courts, to anyone — even himself — subject to the Mueller investigation.

But unless Mr. Trump wants to meet the same end as his political role model, Richard Nixon, he should resort only to pardons that promote the central purpose of the power. As Alexander Hamilton explained in Federalist 74, the Constitution creates a pardon power “out of humanity and good policy” to allow for “mitigation from the rigor of the law.”

So far, nothing in the Mueller inquiry cries out for considerations of mercy. Far from it.

If the facts of the indictment are to be believed, Mr. Manafort and his associate wove a dark web of shell companies and foreign bank accounts to launder millions of dollars and avoid taxes on unreported income paid by Ukraine, its former president and its pro-Russia political party.

Mr. Trump tweeted on Monday that “this is years ago, before Paul Manafort was part of the Trump campaign.” That’s true. But the very absence of a link to Mr. Manafort’s performance as Trump campaign chairman underscores the fact that Mr. Mueller has not brought the charges out of political bias. Mr. Trump ran on a campaign to “drain the swamp” of influence-peddling and self-dealing; Mr. Mueller has exposed Mr. Manafort as a swamp dweller.

Anticipating the worries of Mr. Trump’s critics today, opponents of the Constitution’s pardon provision argued that the president might misuse the power to protect his co-conspirators in a treason plot. The anti-Federalists demanded that because “the connivance of the chief magistrate ought not to be entirely excluded” in cases of treason, Congress should have a check on the president’s power to pardon.

This critique prompted the framers to articulate a second, more important explanation for vesting the pardoning power in the president: protecting the nation’s security. As Hamilton explained, the benefit of granting this power to the president alone outweighed the costs of possible abuse because pardons could help end civic unrest, even civil war.

Only a single man, he argued, could act vigorously in times of crisis — the very reason, Hamilton declared, for the presidency itself. “In seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth,” he wrote in The Federalist.

Here, again, the circumstances do not pass the framers’ test. No civil war or riots threaten lives and public safety today. The framers had in mind the sort of pardons that Abraham Lincoln and Andrew Johnson granted Confederates during the Civil War and Reconstruction to help bring the rebellion to a swift end. They never could have imagined pardons being issued to venal Washington lobbyists.

Even if Mr. Trump has the broad constitutional power to pardon Mr. Manafort and his allies, conservatives should vigorously oppose such pardons on the ground that they would do serious damage to the presidency. In the popular mind, pardons imply the commission of a crime; the innocent do not usually seek pardons. A pardon must be accepted; those who do so imply that they committed the acts.

A pardon here would grasp defeat from the jaws of victory, because the charges against Mr. Manafort show no connection at all between Russia and the 2016 campaign. Mr. Manafort’s alleged money laundering and tax evasion, while illegal, do not come close to the level of conspiring with a foreign government to subvert our political process.

This is not to say that the White House may not have grievances with Mr. Mueller’s investigation. It appears that Mr. Mueller may have soft-pedaled an investigation into Hillary Clinton’s approval of the 2010 sale of American uranium assets to the Russians. He may have added too many partisan Democrats to his team. Some day soon, Mr. Mueller may even take his inquiry far beyond his initial charge, as set out in his appointment by Deputy Attorney General Rod Rosenstein, to uncover “any links and/or coordination between the Russian government and individuals associated with the campaign” by investigating the finances of Mr. Trump and his family.

A blanket pardon is the wrong cure for the wrong disease. If Mr. Mueller is acting improperly, the remedy is to fire him, not to preemptively forgive everyone involved in the crime. A blanket pardon would prompt congressional moves toward impeachment, which is the Constitution’s sole mechanism for disciplining, in Hamilton’s words, “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

Instead of attacking it at every turn, Mr. Trump should welcome the latest step in the Mueller investigation. Only by cooperating can he credibly prove his innocence.

Cross-posted from the New York Times