Tuesday, August 01, 2017

"Guilty! Guilty! Guilty!"--Mark Slackmeyer, a lifetime ago

Can Trump just pardon his family members and end the Russia investigation?

Nope.  He might even make things worse.

First, someone with a presidential pardon has no 5th Amendment right against self-incrimination on the crime they were pardoned for maybe committing (assuming Trump issues pre-emptive pardons, a la Ford's for Nixon; and we all remember how popular that made Ford).  So the investigation could continue, and those pardoned would have no choice but to testify, which could well implicate Trump, who can't pardon himself.  (Refusal to testify would raise obstruction of justice problems.  If Trump wants to pardon those away, he's going to lose the House and Senate instanter.  If the investigators just want documents, they can get subpoenas.  Subpoenas are court orders backed by contempt of court charges; but contempt is not usually a criminal action, so it can't be covered by a Presidential pardon.)

Why would the investigation continue?  Because it's not just about possible criminal charges:

Kushner is also at the heart of an investigation into possible collusion between Trump and Russia for heading up the data analytics team that many credited for Trump’s victory in November. According to a McClatchy DC report earlier this month, investigators doubt Russia could have the sophistication and knowledge to so precisely target voting districts with a “fake news” campaign, and allege Kushner’s team could have helped.

If you pardon Kushner for working with foreign nationals in ways he shouldn't have been doing, you still have the problem of what the foreign nationals did, and how they did it.  That kind of information is valuable to criminal investigators, who may want to prosecute people not pardoned by Trump, and to lawmakers who may want to prevent whatever happened from happening again.  Again, being pardoned, those involved would have no choice but to testify.  Any lies they told under oath, or refusal to cooperate just because they don't want to, would be a new and separate criminal act, and if Trump really wants to test his theory about shooting someone on 5th Avenue, he'll have to add to it becoming a very public serial killer and issue still more pardons.  Pardons to keep people from telling the country what they did to the country.  That way lies impeachment and calumny.

Which is not to say criminal charges couldn't be levied, even after pardons.  Let me explain that with the words of a former U.S Attorney on the story that Trump wrote the false statement Don, Jr. gave about meeting with Russians, before his e-mails were released:

“It is what prosecutors call a ‘consciousness of guilt effort,'” McQuade explained. “If you are there telling a story that later is proved not true, you know people begin asking what the motives are for that. And one motive might be that you were trying to conceal the truth because you know that you are guilty of a crime.”

Asked by host Reid if the report sets up Special Counsel Robert Mueller to call Trump in to explain, McQuade said, that certainly could be the case but that he might hold off.

“Typically what you want to do in an investigation is gather as much information as you can in documents and lower-level participants in a conspiracy to learn as much as you can,” the former federal prosecutor advised. “Then, when you have the opportunity to confront someone who might be the very big fish in a case like this, you have it.”

“So my guess is that Mueller will refrain from doing that,” she continued. “But at some point he may very well want to ask those questions.”
Trump is the "big fish."  He can pardon the small fry, but it won't let him off the hook. Because it really isn't about the small fry.  As Josh Marshall noted, the story of Trump dictating the statement Don, Jr. released isn't just about issuing a false statement to the press:

The real issue is this: The President, contrary to what many have thought, is the one person who appears to know all the key details. Kushner likely knows many of them. Kushner’s lawyers know some but likely not all since it seems unlikely he’s being fully truthful with them. Trump’s lawyers likely know some but not all the facts. Others each have their own bundle of knowledge but likely in few cases the whole picture.

Trump intervened and overruled his advisors and lawyers who wanted a more candid and complete statement because ‘transparency’ is only an effective strategy if the drip drip drip of revelations is more damaging than the story itself. The bank robber has no interest in transparency. His only interest is escape, either from custody or justice. Transparency is the one thing the bad actor must avoid at all costs. We are clearly in that kind of situation here. The truth is bad. That’s why President Trump leaned on James Comey to drop the investigation into Mike Flynn. That’s why President Trump fired James Comey. That’s why President Trump has tried to bully Attorney General Jeff Sessions into resigning. That’s why President Trump continues to threaten to fire Robert Mueller. That’s why he overruled his advisors and issued a false statement in his son’s name. 

The question of Watergate returns:  "What did the President know, and when did he know it?"  Ultimately, what his underlings and family members did is irrelevant to his criminal culpability.  And the question won't be:  did the President know he knew it?  That's the equivalent of the standard of criminality imposed on major public figures:  absent the video tape of the President fondling the smoking gun while pulling the trigger and shooting the victim, there is no "proof" of guilt.  Which is, of course, proof far beyond a "reasonable doubt."  There is the standard of "unreasonable doubt," but, like not unlike Nixon's, that's entirely in the President's mind:

Trump, they say, is increasingly acting as his own lawyer, strategist and publicist, often disregarding the recommendations of the professionals he has hired. "He refuses to sit still," the presidential adviser said. "He doesn't think he's in any legal jeopardy, so he really views this as a political problem he is going to solve by himself." Trump has said that the Russia investigation is "the greatest witch hunt in political history," calling it an elaborate hoax created by Democrats to explain why Clinton lost an election she should have won. Because Trump believes he is innocent, some advisers explained, he therefore does not think he is at any legal risk for a coverup. In his mind, they said, there is nothing to conceal.
In Trump's mind there is nothing, period; so there is nothing in it that can be concealed.

This is not going away because Trump wants to take his ball and go home.  It really doesn't work that way.

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