It’s been an especially turbulent week for Donald Trump’s presidency, but consider this particular sequence of events:
First, a jury in Alexandria, Virginia, found Paul Manafort guilty Tuesday on eight felony counts related to tax evasion and other financial crimes. Manafort, who is 69 years old, now faces the possibility of spending a significant portion of his remaining life in federal prison. It’s possible, however, that the former Trump campaign chairman could reduce his prison sentence by cooperating with special counsel Robert Mueller’s investigation into Russian electoral interference.
Second, on Wednesday, Trump expressed sympathy for Manafort and implicitly praised him for not cooperating with investigators. The Justice Department “took a 12 year old tax case, among other things, applied tremendous pressure on him and, unlike Michael Cohen, he refused to ‘break’ - make up stories in order to get a ‘deal,’” Trump tweeted, contrasting Manafort’s silence with his former lawyer’s admissions. “Such respect for a brave man!” That night, Fox News’ Ainsley Earhardt reported that Trump told her he was considering a pardon of Manafort.
Third, Rudy Giuliani, the president’s media-happy lawyer, told the Washington Post on Thursday that Trump asked his legal team in recent weeks whether he should pardon Manafort. Giuliani said that he and Trump’s other lawyers counseled against pardoning Manafort immediately. “We told him he should wait until all the investigations are over,” Giuliani told the Post. Mueller’s investigation, he added, “is a strange case. It won’t be decided by a jury. It will decided by the Justice Department and Congress and ultimately the American people. You have to be sensitive to public optics.”
Taken together, these events could suggest that if Manafort does not cooperate with the special counsel’s inquiry, he will receive a pardon at some point in the future. Since all of this has played out in national media outlets, it’s possible that Manafort himself and his legal team have already drawn a similar conclusion.
The president is already under investigation for obstruction of justice. But he may now be running afoul of other federal laws. In April, George Washington University law professor Randall Eliason wrote an interesting legal analysis about the presidency, the pardon power, and how they may intersect with federal bribery statutes. Eliason, who is a former federal prosecutor, emphasized that his analysis was academic in nature and that he was not accusing anyone of breaking the law. Nonetheless, his conclusions read even more salient today than they did five months ago.
Eliason pointed to two provisions in the federal bribery statute. The standard anti-bribery provision, he explained, “requires the government to prove that a public official agreed to be influenced in the performance of an official act in exchange for something of value.” Under this theory, the “official act”—that is, issuing a pardon—would be conducted in exchange for a thing of value, which is the witness’ silence. Eliason cited contemporaneous reports that John Dowd, a former Trump lawyer, floated the possibility of pardons to the lawyers representing Paul Manafort and Michael Flynn.
“If there was a conspiracy to solicit bribes, it doesn’t matter whether the solicitation was accepted,” he explained. “The crime would be the agreement between Dowd and the president to offer the pardons in exchange for silence, followed by some effort to try to carry out the agreement. In a conspiracy charge, success of the underlying scheme is not required.” Making all of those connections for a jury could be a tall order for any prosecutor, however.
Another provision in the statute deals specifically with bribery of a witness. In this formulation, the pardon becomes the thing of value that’s offered to someone, not the official act that’s undertaken to receive it. “Unlike theory A, this doesn’t require the government to prove that a public official was involved—anyone can bribe a witness,” Eliason wrote. “One potential benefit of this theory is that it could apply even if the president was not involved in the bribe.”
He then offered a hypothetical scenario that now feels awfully familiar. “For example, suppose Dowd or someone else close to the president told a witness, ‘Look, just don’t say anything in the grand jury, or lie about what happened, and I’ll get the president to grant you a pardon,’” Eliason wrote. “If I made such an offer it would not be credible and likely would not influence anyone to agree. But if the president’s personal lawyer or someone else actually in a position to persuade the president made such an offer, I think that promise could constitute a thing of value—even if the president was not aware of the offer.”
Trump and Giuliani haven’t explicitly said in public that Manafort will receive a pardon if he keeps his mouth shut. But a reasonable observer could conclude that such a pardon is on the table, and that cooperating with Mueller might make the president less inclined to grant it. That observer could also draw inferences from Trump’s behavior throughout the year. After all, the president has a habit of doling out pardons to people he considers to have been wronged by federal prosecutors, such as former Arizona sheriff Joe Arpaio and conservative provocateur Dinesh D’Souza. It’s certainly not unthinkable that Trump could offer Manafort a similar reprieve.
One could build on those conclusions with the president’s own words. In a Thursday morning interview on Fox and Friends, Trump also spoke out strongly against “flipping.” He was referring to the longstanding practice among federal prosecutors of getting lower-level defendants to testify against higher-level defendants in exchange for reduced sentences. It’s a ubiquitous tool for prosecutors across the country and an essential feature of any large-scale organized-crime case. In Trump’s eyes, however, the practice “almost ought to be illegal.”
“It’s not fair,” Trump complained in reference to Cohen, who implicated the president in campaign-finance violations when he pleaded guilty earlier this week. “If you can say something bad about Donald Trump and you will go down to two years or three years, which is the deal he made, in all fairness to him, most people are going to do that.” What the president said is likely true—unless, of course, Trump or one of his associates gives the defendant a good reason not to do so.