3 no-good explanations for Trump’s lawyer floating pardons for Flynn and Manafort

President Trump’s dicey efforts to insert himself into the Russia investigation continue to expand — both in number and in scope. The Washington Post is reporting that Trump’s now-former lawyer, John Dowd, floated a potential pardon to former campaign chairman Paul Manafort last year, according to two people familiar with the conversations. And the New York Times, which broke the story, also reported Wednesday that Dowd posed the idea to former national security adviser Michael Flynn’s lawyer.

The story is the most significant indication to date that Trump and/or his legal team have considered whether to invoke Trump’s rather broad presidential pardon power — an option that Trump has alluded to but his legal team has downplayed. They also raise questions about whether the pardons were meant to influence Manafort’s and Flynn’s potential cooperation in the probe. Flynn has pleaded guilty and is cooperating, while Manafort is awaiting trial.

A fundamental question here, though, is where this idea came from and what it says about the case. It’s not clear that such offers would constitute evidence of obstruction of justice in special counsel Robert S. Mueller III’s probe of Russian interference in the 2016 presidential election. Dowd is denying pardons were even broached. “We never talked about pardons. There was no reason to talk about pardons,” he told The Post.

So what’s the upshot here? Here are a few options:

1. Trump knew of the pardon discussions and was trying to prevent Flynn’s and Manafort’s cooperation

This is perhaps the most troubling scenario for Trump, in terms of appearance, but it’s also the most logical one. After all, would Dowd really float pardons for Flynn and Manafort if he didn’t think Trump would follow through?

Trump has also shown repeatedly that he’s been willing to do drastic things that could affect the course of the investigation, including firing James B. Comey as FBI director and made moves to fire Mueller. He’s even tweeted about his pardon power being “complete.” When asked whether he might pardon Flynn last year, Trump said he wasn’t — “yet.”

In one way, it’s almost completely unsurprising that Trump would at least consider something like this or even have it floated directly to Flynn and Manafort. It’s completely in-character for him. Trump has repeatedly called the Russia investigation “fake news” and said there is nothing to be covered up, so he’s been unafraid of even the appearance of a coverup. It wouldn’t even be surprising to see Trump fess up and say publicly that he has considered Flynn and Manafort pardons — despite the past denials.

But that doesn’t change the fact that it would look a whole lot like he was trying to protect himself from what they might say to Mueller.

2. Trump knew about the discussions, but truly just thinks Manafort and Flynn are innocent and/or good people

This might eventually be the defense that’s offered, but it only makes much sense for one of the two people involved.

Shortly after Flynn was fired for misleading the White House about his contacts with then-Russian Ambassador Sergey Kislyak, Trump went to Comey and suggested he be lenient on Flynn, according to Comey’s testimony to Congress. (Trump disputes this.) Trump has also reportedly lamented Flynn’s exit from the White House, and he has repeatedly and publicly defended him. So maybe a Flynn pardon would be a legitimately personal decision.

With Manafort, though, that’s a tougher pill to swallow. Trump has called Manafort a “good man,” a “respected man” and an “honest man,” but his White House has also downplayed Manafort’s role in the 2016 campaign. And back in September, White House lawyer Ty Cobb said of reports that Manafort might have tried to leverage his role on the Trump campaign to recover old debts: “It would be truly shocking” if Manafort “tried to monetize his relationship w the president.”

Flynn is a former general who has served in the last two administrations, so justifying that pardon might be a little easier. Manafort, by contrast, faces dozens of corruption charges stemming from overseas political undertakings, and the White House’s own lawyer has said the charges against him are troubling. The idea that Trump would be considering pardoning him because of a personal connection or belief that Manafort is wrongly accused would be much more difficult to argue.

3. Dowd was freelancing

This might actually be the worst explanation, legally speaking, given that some believe a president’s pardon power is absolute. The idea that Dowd would go to Flynn and Manafort and have a pardon discussion that Trump himself hadn’t sanctioned — i.e. with no real consideration of the pardons — would lend credence to the idea that the motives underlying it weren’t so just.

If a pardon seemed just over the horizon, you could argue, Flynn and Manafort might hold out longer or might even shy away from revealing too much if they did cooperate. And if Trump wasn’t involved, it would reinforce the idea that the conversation was meant to influence their actions — rather than about an actual desire to pardon Flynn and Manafort for other, less-controversial purposes.

While many of Trump’s excursions into this whole case look worse the closer they involve Trump, this might actually be the rare exception: A case in which Trump being involved might actually make Dowd’s actions more justifiable. Even then, though, it’s not great on the smell test.

Article source: https://www.washingtonpost.com/news/the-fix/wp/2018/03/28/3-no-good-explanations-for-trumps-lawyer-floating-pardons-for-flynn-and-manafort/

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