Today, Explained - Pardon me

Episode Date: June 6, 2018

Sheriff Joe Arpaio. Scooter Libby. Dinesh D'Souza. So far, none of President Donald Trump’s pardons have had anything to do with his administration, but many believe he is flexing this particular muscle for an audience of one: Robert Mueller. Vox’s Andrew Prokop explains why the president is dropping hints about pardoning himself and how American democracy may soon be tested. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Vanderplug! Ramus for him! Guess who's back with us this week? Oh, wait. Let me think about it. We've been here before. We've had this and that and where and who and when and... Is it ZipRecruiter? Yeah, it's ZipRecruiter.

How'd you do that? I don't know. I almost feel like I've been here before. ZipRecruiter.com slash explained. The smartest way to hire. The smartest way to hire. The smartest way to hire. Andrew Prokop, politics reporter here at Vox. There's a whole lot going on with the president, the Mueller investigation.

There's memos, there's pardons, there's letters. Is there any through line here? that he can use his presidential powers or claiming that he can use those powers to thwart the investigation, should he so desire. And so where does this all start? Is it with the pardons he's been issuing? Yeah. So Trump has been using his pardon power in a few high-profile political cases. There was Sheriff Joe Arpaio. Sheriff Joe is a patriot. Sheriff Joe loves our country. Sheriff Joe protected our borders. And Sheriff Joe was very unfairly treated by the Obama administration. There was Scooter Libby, who was the former chief of staff to then Vice President Dick Cheney.

And recently it was Dinesh D'Souza, the conservative commentator who was convicted of campaign finance violations a few years back. Am I Jeffrey Dahmer who put bodies in the refrigerator? I gave money to a college friend of mine who was running for office. Trump pardoned him on Thursday morning. And all three of these people are very popular among certain conservative circles. Yeah. It sort of seems like he's trying to show off that he has these powers and he's not afraid to use them, even if they're politically controversial.

And on the surface, these pardons have nothing to do with the Mueller probe, right? Yeah. And none of these cases have anything to do with Trump personally. So it would be a different order of magnitude for Trump to actually try to use his pardon power in the Russia case. But, you know, a lot of people think that he's kind of wink, wink, hinting that he may get there eventually. Is there any evidence that he has the Mueller probe in mind while making these sort of gimme handouts to conservatives? Well, we know as of last year, Trump's lawyer, John Dowd, secretly contacted Paul Manafort's lawyer and Michael Flynn's lawyer and talked about potential pardons to both of them.

So this is not coming out of nowhere at all. He very much has the idea of pardons on his mind when it comes to the Russia investigation. Has the president ever used these sort of pardons for stuff that related to the president? There's certainly no recent precedent for pardons for an ongoing investigation into the president's own administration. We saw Gerald Ford pardon Richard Nixon and give him an unconditional pardon after he had already left office. For all offenses against the United States, which he, Richard Nixon, has committed or may have committed or taken part in during the period from July 20, 1969 through August 9, 1974. We saw pardons in the Iran-Contra investigation, but that was years later under President George H.W. Bush,

not under Reagan, where the scandal broke. Today's volleys were the latest in the six-year-old scandal brought to a boil again Christmas Eve by Mr. Bush's pardon of former Defense Secretary Caspar Weinberger and five others for their roles in the Arms for Hostages deal. The question of whether the president can do this is a pretty interesting one. The Constitution does seem to give pretty broad pardon powers to the president. But one interesting wrinkle here is that there's been some reports that suggest that Robert Mueller thinks that the act of dang brought into the news by these leaked letters that Trump's lawyers wrote to Mueller's team that leaked out this weekend in the New York Times.

The first letter was written by Mark Kasowitz, who left Trump's legal team last summer. And the second letter was written by John Dowd and Jay Sekulow. And Dowd is now gone too. Sekulow is still there. What did they say? So the letters make these broad claims of presidential power. The backdrop is that Mueller was investigating whether President Trump obstructed justice in the case of allegedly asking James Comey to let go of the investigation into Michael Flynn, in the case of firing Comey. And what Trump's lawyers argue in this letter

is essentially that anything the president does that's part of his normal powers cannot be considered obstruction of justice. Because technically he runs all this stuff. Yeah, and it's interesting because a lot of the legal precedent and statutes about obstruction of justice relate to the question of corrupt intent. The thing to understand there is that if a public official does something that's intended to cover up a crime, even if it's something that he or she would ordinarily be able to do, if it's done with corrupt intent, it could be obstruction of justice. This is one legal school of thought. So under that line of thinking, Trump telling Comey to let go of the Flynn investigation.

You know, if that's done with corrupt intent, that could be obstruction of justice. Now, Trump's lawyers claim in even if Trump fired Comey because he wanted to shut down the Russia investigation that that would have been legal this is the argument they're making in this letter that that can't be obstruction of justice because the president has the power to do this stuff anyway and his corrupt intent doesn't really matter. And it is interesting that these letters are from Trump's personal lawyers, not the White House or the Justice Department. The actual government lawyers have not tied themselves to these really bold and controversial claims.

But the reason I think it's so scary is that if you take Trump's lawyer's argument for it, then Donald Trump can order the Justice Department to open an investigation into anyone he wants for any reason whatsoever, even if it's a corrupt reason. He can end any investigation into anyone he wants. Like, let's say some businessman gave Trump a big donation and said that he wanted him to end an investigation into his business practices. Trump's lawyers are saying, well, he could do that.

It's the president's power. He can use the Justice Department however he likes. It's really up to him. And there are no internal checks on his power. It sounds like absolute power. It does bring to mind an authoritarian regime. Now, the question of whether they're legally right, though, is kind of an interesting one, because there are legal arguments that he really can do this stuff made by previous administrations well you know you had nixon era arguments that the

president is above the law that didn't really go so well for nixon yeah but but like after nixon stepped down we've sort of developed various norms relating to the Justice Department. They're supposed to be independent from what the president wants. They're supposed to handle criminal investigations according to what the law tells them and not according to politics or what the president might want for political reasons. And we've had these norms that have existed for some time. And the question is whether these norms really do have force of law or whether the president can simply disregard them. And this is something that really hasn't been tested in court

when it comes to presidential powers. It could be paving the way for a big legal court showdown of some kind, because we really don't have a lot of rulings on stuff like this. Remember that one time we went to ziprecruiter.com slash explained and posted a job for our interns? I do. I really do. A lot of things are going on with my memory right now. And we had like a ton of applications come back to us. All sorts of great stuff. Just more than I could have ever imagined. Like lots and lots of great candidates.

So many candidates. And now, here we are, fast forward to June, we have... Two interns. Two interns. Not one, but two, not one, but two. And it's all thanks to this campaign that ziprecruiter.com slash explained led us to. Is it free? It's like you get the ziprecruiter.com slash explained free trial. And then I guess eventually, you know, it costs money, but you can try it for free right now at ziprecruiter.com slash explained. That's incredible. And it's the highest rated hiring site in America.

Highest rated? Wow. Vox has a new TV show on Netflix. It's called Explained. New episodes drop every Wednesday and today's is the mother of all explainers, the one you really need. Cryptocurrency. What is it? How does it work? And all the illegal stuff people do with digital cash. Also, Christian Slater. It's on Netflix now. Search for Vox or go straight to netflix.com slash explained. So the president seems to be like cranking up the heat on making the case for his seemingly universal pardon power. Why is this happening right now? What's going on behind the scenes? There's a lot going on behind the scenes right

now. One big issue is that for five months now, Mueller's team and Trump's have been in negotiations about whether Trump will sit down for an interview with Mueller on these topics, obstruction of justice and also collusion. But the risk for Trump is that if he lies or makes false statements to Mueller in this interview, then he'd be vulnerable to perjury. So Trump has publicly hinted that he would be totally happy to do this interview, but his legal team behind the scenes seem much less excited about it. And these talks have been stretching on and on. And there has been the possibility floated that at some point Mueller will get fed up and try to subpoena Trump and force him to testify on this stuff. So there's a lot going on behind the scenes with the Mueller investigation. But what do we know? I mean, Paul Manafort's been back in the news lately. What are the developments in that investigation that we actually have concrete details about.

I think there are a few things that we know are happening right now with Mueller and also with the Michael Cohen investigation, which is a big issue here too. So one thing that just happened is that Paul Manafort, who's already facing 23 charges on bank fraud, money laundering, all sorts of matters. Which is why he has to wear two GPS tracking bracelets. Now there's more legal trouble for Manafort because most of the charges are for illegal lobbying on behalf of a pro-Putin group in Ukraine. Mueller accused him in a filing Monday night of trying to tamper with potential witnesses against him. Mueller claimed that after Manafort was indicted on various new charges related to his Ukraine lobbying, he tried to contact some people he'd worked with on the issue

using encrypted messaging apps and and also by calling them to get them to stick to a false story and the plan the plan would have worked except for one tiny flaw the witness immediately gave the text to the fbi so basically manafort's been on house arrest for a while and he was about to make bail. And Mueller is now saying that he should not be allowed out on bail. There should be a hearing on this. Maybe he should even be thrown into actual prison as a result of this. So this would be a bad development for Paul Manafort.

And, you know, we haven't seen any public signs that Manafort is considering flipping and turning on Trump. But if he's actually ends up in jail as he's awaiting trial because of this, I mean, that's one potential thing that might make him rethink whether to to to make a deal with the government. And what about the president's personal attorney, Michael Cohen? I'm obviously very loyal and very dedicated to Mr. Trump. What's up with his investigation? So I just heard that they broke into the office of one of my personal attorneys, good man. Since the FBI raid where various documents and electronics were seized from Michael Cohen's office, there's been this legal wrangling over whether Cohen can claim attorney-client privilege over some of this stuff. So finally, on Monday night, we got the first ruling from the special master who's been appointed by the court to oversee this process. And she ruled basically that almost none of the stuff the government took from Cohen's office in at least the first batch of documents counts as actually privileged material.

So that could be big because, you know, Trump really flipped out after these raids on Cohen. He was really worried. The president with two terse tweets this morning saying, quote, attorney-client privilege is dead, and then tweeting out simply a total witch hunt. He seems to really not want prosecutors to get a look at what was in Cohen's office.

So that's a big issue too. So Manafort, Cohen, is there anyone else who's feeling the heat right now other than the president? So we haven't gotten any new charges in the Mueller probe for a while, but his grand jury has been meeting and interviewing witnesses. And in recent weeks, a lot of those witnesses have been asked about Roger Stone. He is a very long time, decades long political advisor to Trump, briefly was on the campaign in 2015 before leaving it. But it seems like Roger Stone might be in legal trouble of some kind. What exactly that would be isn't entirely clear. Mr. Mueller and his team may seek to conjure up some extraneous crime pertaining to my business,

or maybe not even pertaining to the 2016 election. I would chalk this up to an effort to silence me. He hinted that he was in contact with various people involved with the email hackings during the 2016 campaign. So it could be involved with that. But I think the big picture is that these three people, Paul Manafort, Michael Cohen, Roger Stone, they're some of the people who've worked most closely with Trump, who know a lot about Trump, and they're all in varying levels of serious legal danger right now. So a likely reason why Trump is so aggressively attacking Mueller lately, why he's floating these arguments about his vast executive powers, and he's feeling the heat, basically. The walls may be closing in.

If the president truly believes that he's innocent of any wrongdoing, he personally is innocent of any wrongdoing during the election collusion with Russia. Isn't he going about this like the exact wrong way? He acts a lot like someone who just stole a pair of shoes from Foot Locker. Trump definitely does not seem to be acting like an innocent person and not just lately either. Remember that it was only in the first weeks of his administration that he asked for loyalty from James Comey at a private dinner or that he asked Comey to let the investigation into Michael Flynn go. That seemed to be something he was worried about too. And he's also an aggressive person. And if he

genuinely is convinced that this is a witch hunt and that fighting back is the only way to counter this stuff, then maybe that's just what he wants to do. But I think this is more of a political survival strategy on Trump's part than it is a legal strategy. He seems to be betting that enough Republicans in Congress will, in the end, stand by him and protect him from impeachment so long as he retains the popularity and loyalty of enough conservative voters. And I think the strategy to attack Mueller and denigrate him and the whole narrative that this thing is a witch hunt has been pretty effective toward that end. Fox News has been constantly echoing this narrative.

A lot of Republicans in Congress, some of them seem to actually believe it or are at least willing to go along with it. Others just don't want to take the political heat for speaking out against it. Senator, the president says he can pardon himself. Would you agree with that? I don't agree with that at the moment.

That is not a constitutional issue I've studied, so I will withhold judgment at this point. And I think it makes sense to just attack, attack, attack, use anything you can. Try to undermine the Justice Department. Try to undermine the rule of law. Claim that anything you're accused of doing was just within the president's usual powers anyway, that it's all made up. It's all phony. There was no collusion. And if you keep saying that, then at least enough of one set of voters will believe it and that that will let him survive. Andrew Prokop's full-time job is the Mueller investigation. He reports for Vox, as do we. I'm Sean Ramos for him. This is Today Explained.

Irene Noguchi is our executive producer. Bridget McCarthy is our editor. Noam Hassenfeld produces. So does Luke Vanderplug. Afim Shapiro is our engineer. And the increasingly anxious Breakmaster Cylinder makes music for us. You can find Today Explained on Twitter at today underscore explained.

We're produced in association with Stitcher and we're part of the Vox Media Podcast Network. You can do Today Explained a solid and rate and review the show on Stitcher or Apple Podcasts. Thanks in advance. Wouldn't it be nice to actually get the interns in here? That would be pretty cool.

They're so nice. Have you met them yet? Yeah, I feel like I've met them over and over again for the past couple days. Yeah, it's just going to be great to be like, hey, ZipRecruiter.com slash explained led us to you, and now you are here. It's the smartest way to hire. Yeah, that's what they say.

That's what we've said before. What's going on? I don't know. Luke, I don't feel so good. You're all right. I don't know. Luke, I don't feel so good. You're all right. I don't know what's happening. I think we're in a ZipRecruiter.com slash explained time loop.