Trump's Legal Team May Use Presidential Pardons to Fence in Mueller's Investigation

According to unnamed sources quoted in the Washington Post, Donald Trump’s legal team is researching how the president’s power to pardon may be used to fence in the investigation by special counsel Robert Mueller:

Some of President Trump’s lawyers are exploring ways to limit or undercut special counsel Robert S. Mueller III’s Russia investigation, building a case against what they allege are his conflicts of interest and discussing the president’s authority to grant pardons, according to people familiar with the effort.

Trump has asked his advisers about his power to pardon aides, family members and even himself in connection with the probe, according to one of those people. A second person said Trump’s lawyers have been discussing the president’s pardoning powers among themselves.

One adviser said the president has simply expressed a curiosity in understanding the reach of his pardoning authority, as well as the limits of Mueller’s investigation.

“This is not in the context of, ‘I can’t wait to pardon myself,’ ” a close adviser said.

President Trump suggested the special prosecutor’s team might not be fair, impartial investigators because of previous political contributions, legal clients and personal friends. (Meg Kelly/The Washington Post)
With the Russia investigation continuing to widen, Trump’s lawyers are working to corral the probe and question the propriety of the special counsel’s work. They are actively compiling a list of Mueller’s alleged potential conflicts of interest, which they say could serve as a way to stymie his work, according to several of Trump’s legal advisers.

This is consistent with Trump’s Wednesday interview with the New York Times in which he said that he considered any of Mueller’s investigation outside the scope of the collusion-with-Russia allegations to be too much and with Bloomberg’s report that Mueller was looking into a decade-old property deal by Trump.

I think there are three parts to this puzzle.

First, Trump’s statements on Wednesday, the complaining about the very obvious appearances conflicts of interest on the part of Mueller and some of his team, and this story–which is obviously generated by the White House–which includes this item:

Jay Sekulow, one of the president’s private lawyers, said in an interview Thursday that the president and his legal team are intent on making sure Mueller stays within the boundaries of his assignment as special counsel. He said they will complain directly to Mueller if necessary.

should be viewed as brush-back pitches. If you were alive during the Clinton era, the Ken Starr Whitewater investigation provides a case study in how an independent counsel can go batsh** crazy. Starr started out to investigate a failed land speculation scheme. Before it was done he had investigated the firing of White House Travel Office personnel, Hillary’s use of confidential FBI files, Madison Guaranty, Rose Law Firm, Paula Jones’s law suit and Monica Lewinsky’s blue dress. From the WaPo:

“This is Ken Starr times 1,000,” said one lawyer involved in the case, referring to the independent counsel who oversaw an investigation that eventually led to House impeachment proceedings against President Bill Clinton. “Of course, it’s going to go into his finances.”

The Trump legal team has every right to worry that Mueller will be a Frankenstein’s monster and are working to establish boundaries because otherwise, Mueller’s investigation will be a multi-generational effort.

Second, I would not be shocked in the least to see pardons issued in the near future if the investigation goes very far from the Russia issue. Pardons are a way of fixing the problem in the view of Trump’s legal team. It would tell Mueller that he’s free to investigate but he’s never going to be allowed to prosecute. I think that Trump will be able to politically survive doing that if it becomes obvious that Mueller is targeting Trump’s business deals and not the primary focus of his charter–and we are virtually at that point today. I also can’t imagine him letting either Donald Jr. or Jared Kushner be placed in legal jeopardy. It would be unthinkable for Trump to allow Mueller to prosecute either of them. I don’t care what they did.

Third, there is the question of what he will do when other people close to him are potentially indicted for crimes, like lying to federal investigators or campaign finance violations, in conjunction with the Russia investigation but are not really charged with working with Russians. My bet here is that Trump does not allow perjury charges of the Scooter Libby variety to be used against anyone. I think Mike Flynn is golden on the FARA accusations–as he should be. I don’t, however, see him intervening in nearly inevitable money laundering charges against Manafort.

And the corollary issue is how much leeway does he give Mueller before he has Mueller fired and what kind of political difficulties that causes him. If he continues the drumbeat on Mueller taking the investigation away from Russia I think he keeps GOP support if Mueller is fired and another counsel appointed. Even lefties like Kevin Drum at Mother Jones are getting queasy over a wide ranging Mueller investigation of Trump’s business dealings:

I’ll confess to some mixed feelings about this. On the one hand, this stuff is all semi-related to Russia, and might therefore be relevant to the campaign issue. On the other hand, we’ve all seen what happens when special prosecutors get out of control and start investigating everything under the sun. So far this looks like it’s still legitimately tied to Mueller’s original brief, but it’s a close call.

If substantive progress is made in the Russia probe, like actual charges being filed, then Mueller becomes bulletproof and can do pretty much what he wants. The odds of this happening, however, approach zero.