President Donald Trump has already shown that he is willing to issue pardons to his friends, even preemptively, so Special Counsel Bob Mueller got a secret weapon to help him navigate how to get around the president’s pardon power, Bloomberg reports.
Earlier this year, Trump tweeted that “everyone agrees” the president has “complete power to pardon.”
He exercised that power for the first time in an unorthodox move when he pardoned former Arizona Sheriff Joe Arpaio before he had even been sentenced by a judge.
According to reports, Trump has inquired about his ability to pardon his family members and even himself.
But pardon power when it comes to the president’s own team is largely without precedent. Gerald Ford came under fire for pardoning Richard Nixon and Bill Clinton continues to be dogged by his pardon of his fugitive friend Marc Rich. But as Bloomberg’s Greg Farrell notes, “the legal territory is largely uncharted over pardons of a president’s own campaign workers, family members or even himself — and how prosecutors’ work would then be affected.”
Mueller has also inquired about Trump’s ability to pardon, and hired experienced lawyer Michael Dreeben, who has appeared in front of the Supreme Court more than 100 times over three decades as an appeals lawyer at the Department of Justice, to guide his team through the uncharted terrain.
Dreeben is Mueller’s top legal counsel and has been researching past pardons to determine “what, if any, limits exist,” per Bloomberg.
Dreeben, a former deputy solicitor general, is also charged with ensuring that the special counsel’s moves like the early morning raid on former Trump campaign chairman Paul Manafort’s home are “legally airtight.”
“He’s seen every criminal case of any consequence in the last 20 years,” Kathryn Ruemmler, who served as White House counsel under President Obama, told Bloomberg. “If you wanted to do a no-knock warrant, he’d be a great guy to consult with to determine if you were exposing yourself.”
With Trump seemingly ready to issue pardons in the investigation which he’s called a “witch hunt,” that pardon power is likely to be challenged. Possibly in the Supreme Court, where Dreeben is a veteran.
Trump is able to pardon virtually anyone, though doing so would require those pardoned to admit their guilt. That could be an issue if Trump wanted to pardon say, his son or son-in-law.
There is still the question of whether Trump could pardon himself, something no president has ever done and Supreme Court precedent suggests it may be tricky.
There is one easy way Mueller can avoid Trump’s pardon power entirely, though it’s only applicable in certain situations like the case of Manafort.
Mueller is reportedly working alongside New York Attorney General Eric Schneiderman to investigate Manafort’s financial crimes. Presidential pardon power only applies to federal crimes. Trump would have no recourse if Manafort is indicted in a New York State court.
But New York’s jurisdiction is limited, even if the president and his family all live here. Even so, Mueller’s team could use Manafort or another aide’s indictment in a state court, where Trump has no power, to put pressure on the president or any other aide under federal investigation.