Paul Manafort is reportedly looking to make a deal with the Special Counsel’s office. For Abigail Tracy of Vanity Fair, while this means he has probably given up gambling on a presidential pardon, it could also be a last-ditch effort to spur Trump into issuing one. But there’s a good reason why Trump hasn’t issued a pardon in Manafort’s case and I covered it two days ago in my piece on Rep. Jerry Nadler of New York who stands to become the chairman of the Judiciary Committee if the Democrats win back control of the House in the midterms. In that role, Nadler would oversee impeachment hearings if they were to occur.
Russell Berman of The Atlantic discussed the issue of pardons with Nadler in the context of possible impeachable offenses.
When I asked if there was a particular action Trump could take as president that Nadler would definitely call impeachable, he relayed a scene from the 1788 convention where Virginia ratified the Constitution. In discussing the unlimited presidential-pardon power, he explained, one delegate asked what would happen if a president engaged in a criminal conspiracy and then pardoned his co-conspirators. Nadler said: “And James Madison answered: ‘Well, that could never happen, because a president who did that would be instantly impeached.’
“They viewed the impeachment power as a limitation on the pardon power,” Nadler continued. “What that also means is if the president pardoned co-conspirators—if we concluded that he was in a conspiracy with various other people and the Russians to use foreign influence on the election, and in order to stop that investigation he issued pardons to his co-conspirators—well that, we are told, is impeachable.”
When it comes to Constitutional matters, it’s hard to do better than James Madison. Madison, along with John Jay and Alexander Hamilton, authored the Federalist Papers which were written to support the ratification of the Constitution by the states. If he said that a corrupt pardon would lead to instant impeachment, that certainly means that he would consider an act like President Trump preemptively pardoning Paul Manafort to prevent his cooperation with Robert Mueller as a slam-dunk impeachable offense. I think as a matter of original intent, even the reanimated corpse of Antonin Scalia would have to agree. Trump doesn’t consistently listen to his lawyers, but he has been strongly advised that pardoning people under investigation would constitute a strong rationale for removing him from office.
If he nonetheless pardons Manafort before he can begin cooperating, that will demonstrate that he’s screwed either way. He might think he’s still in a better position to retain Republican support on the pardon issue than he would be if people learned what Manafort has to say, or he might just want to delay for delay’s sake.
As for reading the tea leaves on Manafort, his second trial has already been pushed back and is now scheduled to being on September 24. Yesterday, U.S. District Judge Amy Berman Jackson moved a pretrial hearing scheduled for today to Friday without providing any official explanation. That would support the rumor that his lawyers are negotiating some kind of plea arrangement.
Having already been convicted of eight felonies, Manafort isn’t negotiating from a position of strength. He can reduce his jail time by pleading guilty to additional felonies rather than going to trial and losing, but he’s still looking at doing serious hard time. This obviously raises the stakes in terms of what kind of information he’d be expected to provide for real leniency. At this point, he better hope that what he has is good enough to prove the collusion case beyond a reasonable doubt, because without that he’s not avoiding a decade or more in the slammer.