Jake Winograd
Jul 22, 2017 · 4 min read

Seth Abramson has addressed this issue from his perspective as a criminal defense att’y and asst. prof. of law. His hypothesis is that Trump will try to insulate himself against charges of criminal conspiracy to capture the presidency with the aid of the Russian gov’t. by pardoning potential criminal co-conspirators before Mueller names them explicitly. You can read his thinking in this original Twitter thread: https://twitter.com/SethAbramson/status/888237971278888960. For ease of reading, I’ve condensed the Twitter thread below (edited lightly for clarity).

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I don’t claim here to have inside knowledge. What I can say is I’m an attorney and there’s only *one* possible “pardon strategy” here. First, understand a POTUS *cannot pardon himself*. The reason? A president with self-pardoning power is a dictator. And this is America. So, I am telling you now that no Supreme Court in U.S. history, even the current right-leaning one, would allow Trump to pardon himself. (But I’ll say this: a POTUS claiming self-pardoning power is declaring he can *ignore* SCOTUS. IOW, Trump would have to risk civil war.) Before you get too nervous: don’t. Congress — if only to protect itself — would impeach Trump before he could create that kind of crisis.

So, what Trump and his attorneys are now considering is whether, how, and when Trump can pardon his Russia-scandal CO-CONSPIRATORS. As to the presidential pardon power, it’s not at all clear the law would distinguish — in this scenario — between family and non-family. There *may* be categories of offense which — if committed by family and pardoned — could raise constitutional issues. That’s not this case. This case is one in which what’s alleged is a straight-up criminal conspiracy involving — or even not involving — hostile foreign elements.

Here’s where it gets really nefarious: legally speaking, Trump has a huge benefit here that no one has yet discussed publicly. Under the DOJ regulation that authorized Mueller as Special Counsel, Mueller is charged with delivering a *single* referral to the DOJ. That referral — a report — would list any criminal offenses Mueller had determined could be brought against Trump. The DOJ would then decide how/when to send the report to Congress for its further action (basically, possible impeachment proceedings). Under the regulation, it’s not clear whether Mueller *can* issue any reports — or even any indictments — prior to sending that DOJ referral. The reason is that Mueller is really the *investigator* here, but if there’s to be a prosecution, it’s supposed to be from the DOJ. This seems clear from both the regulation and Rosenstein’s appointment letter: “Mueller, investigate this, and then get back to me at DOJ.”

Here’s why that matters: we may not know who Trump’s co-conspirators are UNTIL THE VERY END OF THE INVESTIGATION. Trump can pardon who he wants — besides himself — but the SCOTUS would likely try to block him pardoning NAMED CO-CONSPIRATORS. You may already see why that is: because when you pardon co-conspirators, you are pardoning YOURSELF, which is illegal. You’re pardoning YOURSELF, because you are potentially undermining — fatally — any criminal prosecution that could be brought against you. Let’s say, for example, Trump was going to be charged with conspiracy to commit computer crimes by taking possession of stolen anti-HRC intel. A conspiracy charge requires that there be illegal conduct you’ve had a “meeting of the minds” to further via an “act in furtherance.” If Trump pardons the U.S. person who *committed* the computer crimes felony, can he legally be accused of conspiracy for the offense?

So, let’s bring it full circle — Trump can’t self-pardon, can’t pardon named co-conspirators, and those people won’t be named for *months*. The second someone (say, Don Jr.) becomes a named co-conspirator of Trump’s in a Mueller referral doc, Trump probably can’t pardon him. So Trump has to huddle with attorneys *now*, because if he’s going to pardon *anyone,* he has to do it *soon* before Mueller names them. (Yes, a President can pardon someone before they’ve been charged with an offense. Crazy, but it’s true.) Perhaps you’re starting to see why Trump is creating a weekly “statement trail” about him “not being the target of Mueller’s probe.” As long as he’s “not a target,” he can pardon anyone he thinks *might become a co-conspirator* and claim in court he lacked that intent. “How can you say our client was trying to pardon himself by pardoning co-conspirators?” his attorneys would argue. “He’s not a target!”

So what “pardon strategy” are Trump and his attorneys furiously working on per tonight’s major-media reports? Only one possible answer: they’re trying to gauge POTUS’ chances of success in the SCOTUS if he pardons any/all co-conspirators before Mueller links them to him. While Trump *is* under criminal investigation, it’s not yet clear the charge they’re looking into [Obstruction] *has* co-conspirators. Are Rosenstein, Sessions, and others witnesses in the obstruction case? Sure. But we don’t yet know they’re seen as “co-conspirators.” So, any pardon Trump’s now considering is almost certainly for charges unrelated to the obstruction investigation we already know about. *Every day,* Trump’s legal team tries to read the tea leaves to guess how far along Mueller is, [which determines] how long they have to decide on pardons.

What this suggests is [that] one reason Trump is quite awkwardly but voluntarily raising Russia in interviews is that he is testing the waters. When [the] POTUS speaks on Russia, waters get stirred. His team — inadvertently or otherwise — gets signals on a timeframe [that’s] otherwise mysterious. As an attorney, I see no other possible “pardon strategy” for the President besides the dodgy one described here.