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December 24, 2020
The worst fears of the framers of the U.S. Constitution have come to realization 233 years after the document was drafted, debated, revised and submitted for ratification. President Donald Trump, in an attempt to shield himself from potential prosecution, just pardoned Paul Manafort and Roger Stone. He pardoned Michael Flynn on Nov. 25.
Stone was convicted last year of making false statements, obstruction and witness tampering as revealed in the Mueller investigation. The Justice Department initially recommended a 7- to 9-year sentence, but reduced the recommendation after the attorney general intervened.
Manafort was convicted of eight felonies in Virginia in 2018 and entered into a plea agreement in a separate case to 10 charges, including three counts of failing to file reports of foreign bank and financial accounts, and seven counts of bank fraud and bank fraud conspiracy.
Flynn admitted to twice lying under oath. He pleaded guilty in December 2017 to lying to FBI investigators about his communications with Russian ambassador Sergey Kislyak before Trump took office.
The drafters of the Constitution were concerned that a president could use his pardon powers to protect himself or maybe worse, set in motion illegal conduct by subordinates with the promise of a pardon.
Paul Rosenzweig, a prosecutor during the Clinton Whitewater investigation, wrote in The Atlantic that during the Constitutional Convention the president’s pardon power was hotly contested. George Mason from Virginia was strongly opposed to granting the president such an imperial power. Mason worried that the president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic.”
Erick Trickey of Boston University wrote in The Atlantic that special counsel Robert Mueller wrote about the possibility of Trump pardoning Manafort and Flynn.
“Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government,” the report states. “The evidence supports the inference that the President intended Manafort to believe that he could receive a pardon,” Mueller adds, “which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary.”
Trickey continued that the Constitution doesn’t allow the president to abuse his pardon power. Mueller’s continued, “Congress has the authority to prohibit the corrupt use of anything of value to influence the testimony of another person which would include the offer or promise of a pardon to induce a person to testify falsely or not to testify at all.”
James Pfiffner, a professor at - ironically - George Mason University, wrote in The Hill that Mueller believed the president dangled pardons over the heads of Manafort and Flynn “intend(ing) to shape their conduct in the future and encourage them to provide false testimony or otherwise obstruct justice.”
Mason is also known for a key addition to the impeachment provision of the Constitution. Trickey wrote in The Smithsonian, that Mason asked his fellow delegates why treason and bribery were the only grounds in the draft Constitution for impeaching the president? Treason, he warned, wouldn’t include “attempts to subvert the Constitution.”
After a heated exchange with fellow Virginian James Madison, Mason came up with another category of impeachable offenses: “other high crimes and misdemeanors.” The very grounds used to impeach Donald Trump.
Trump’s impeachment did not result in his removal from office. A second attempt at impeachment is impossible with less than four weeks remaining in his term. That leaves the only limits on his power, public scorn and his legacy - neither of which Trump seems to care anything about.
Ken Gormley, a Constitutional scholar and President of Duquesne University in Pittsburgh, recently wrote in the Washington Post, “If President Trump makes the ill-advised decision to try to pardon himself ... incoming president Joe Biden should respond with another unprecedented step: He should ‘un-pardon’ his predecessor.”
I would take it one step further - if the pardons of Stone, Manafort and Flynn were provided to obstruct justice, in other words to protect Trump from criminal liability “un-pardon” them as well.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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