President Donald Trump, over the past 24 hours, has made one thing very clear: His final weeks in office will not be lacking in the legal drama and corruption concerns that have gripped his presidency.
After having already pardoned his former national security adviser Michael Flynn, Trump discussed possible preventive pardons for his children Donald Jr., Eric and Ivanka; his son-in-law Jared Kushner; and his lawyer Rudy Giuliani, in relation to ABC News and the New York Times. None of these people have been charged with any crime, so these pardons are expected to lead to massive claims of impunity.
Meanwhile, a new, heavily redacted version court notice revealed that federal investigators investigated an alleged bribery scheme to provide political contributions (apparently to the Trump campaign or to Republican groups, but we don’t know the details) in return for a presidential pardon from Trump. The identities of those involved in this case are redacted, but the news makes it clear that even before Trump lost, issues involving his clemency power were under scrutiny.
Also on Tuesday, Attorney General Bill Barr made headlines after a quiet period. Barr told The Associated Press that the Justice Department “did not see fraud on a scale that could have had a different outcome in the election.” Perhaps to lessen the blow to President Donald Trump’s hopes of this admission, Barr also revealed he had appointed John Durham – the US attorney investigating the FBI’s Trump campaign conduct / Russia investigation – as special advisor, to make it harder for Biden to fire him. (Barr spent more than two hours at the White House Tuesday afternoon.)
Overall, Trump continues to try to bend law enforcement to his will – but with limited success in recent times. He is therefore increasingly drawn to the power of grace, which he can exercise on his own authority, to save his close collaborators and members of his family from possible legal consequences.
Trump discussed possible preventive pardons for his children
Around noon Tuesday, I wrote about how “Trump’s forgiveness shenanigans are escalating,” because his recent forgiveness for Flynn contained preventative aspects, and because he allegedly discussed a similar preventive forgiveness for his lawyer Rudy Giuliani.
But today’s news was not over. the Maggie Haberman and Michael Schmidt of the New York Times later reported that Trump had also discussed with advisers the possibility of granting preventive pardons to his three oldest children – Donald Trump Jr., Ivanka Trump and Eric Trump – as well as his son-in-law, Jared Kushner.
The trade relations of the two Trump organization and the Kushner family came under close scrutiny, and Donald Jr.’s meeting with a Russian lawyer to try to smear Hillary Clinton was also scrutinized in connection with Special Advocate Robert Mueller’s investigation into Russia.
But none of these resulted in criminal charges against the children of Trump or Kushner. Any hypothetical pardon should therefore be worded in a fairly broad and preventive manner. (He also couldn’t cover state crimes, which could be a problem, as the main Trump Organization Investigation is being sued by New York State prosecutors.)
It would also, of course, be an amazing and unprecedented use of executive power for a president to grant broad immunity from federal criminal prosecution to his children. Some of Trump’s allies, as Fox News host Sean Hannity, argue the move would be justified because they expect Biden’s prosecutors to continue a “witch hunt” of people close to Trump.
Still, if Trump – or his children – have political ambitions in 2024, that could prompt retaining the broadest possible uses of the power of forgiveness.
We learned of the existence of a “corruption against forgiveness” investigation
Just as Trump became more interested in how far he wanted to go in using his forgiveness power, news broke that federal investigators are already reviewing what they see as a corrupt effort to secure such a forgiveness from Trump.
The revelation came from a newly unsealed court notice by Beryl Howell, Chief Justice of the United States District Court for the District of Columbia. The advisory is heavily redacted, however, so that we are missing key details, including the identities of those involved in this alleged scheme. But there is a lot that we can pull together from the unredacted material.
The bottom line is that investigators say there are two separate regimes aimed at obtaining a pardon or reduced sentence from a certain person.
- One is a “bribe-for-forgiveness” system, in which a “substantial political contribution” would be offered (apparently to the Trump campaign or connected groups) through intermediaries.
- The second is a “secret lobbying scheme,” in which two people pressurize senior White House officials to obtain this pardon without officially registering as lobbyists under the Lobbying Disclosure Act.
Investigators uncovered both of these alleged schemes while examining material seized during a pre-existing investigation. But there was a problem: One of the people involved in lobbying the White House was a lawyer. Investigators therefore wanted to ensure that they had the approval of a judge that the examination of communications involving this person would not violate solicitor-client privilege. Justice Howell gave them that approval – because the communications in question were also copied to someone else, who was not a lawyer.
Speculation has circulated on Twitter about who might have asked for the forgiveness. There are some clues – the person seems to have a short last name and seems to be in custody by the Bureau of Prisons. These facts don’t fit most of the “usual suspects” among the president’s criminally entangled associates, so it’s possible that the pardon-seeker was someone who has received little media coverage so far.
There is no indication yet that anyone has been charged as a result of this investigation. But Justice Howell unsealed the opinion – issued in August – after giving the government three months to take further investigative steps. The identity of the people is redacted because they have not yet been charged.
It’s also important to note that no conscious assertions of wrongdoing by President Trump or White House officials are present in the unredacted portions of the document. (“The Pardon Inquiry is false news!” Trump tweeted.) But it certainly suggests that unscrupulous people are trying to benefit from Trump’s powers of grace.
Bill Barr had a busy day
Attorney General Bill Barr has kept a relatively low profile in recent weeks, but made the news Tuesday on several fronts.
First, Barr said Michael Balsamo of The Associated Press that the Department of Justice “did not see fraud on a scale that could have had a different outcome in the elections.” The statement garnered a lot of attention because it flew in the face of Trump’s false claims that the election was stolen from him because of widespread fraud. But that’s remarkable because, despite Barr’s well-deserved reputation as Trump’s staunch political ally, he’s unwilling to go so far as to support Trump’s election fraud allegations.
In early 2019, Barr tasked Durham, the U.S. lawyer for Connecticut, to probe the U.S. government’s handling of the investigation into Trump’s associates’ relations with Russia. Since then, the Durham investigation has mostly taken place behind the scenes. (The only charge was the guilty plea of FBI attorney Kevin Clinesmith for tampering with a document used in a surveillance application – an issue already uncovered by the Justice Department’s Inspector General.)
It is not known if Durham found a serious foul beyond Clinesmith. But Trump and his supporters have long promoted the prospect of Durham bringing charges against former senior government officials who investigated the president. Barr has reportedly been putting great pressure on Durham to finish at least some of his work ahead of the 2020 election, but Durham’s senior deputy Nora Dannehy resigned in protest in September, and Durham ended up not making a public decision before the election.
Barr’s appointment of Durham as special adviser – made in mid-October, but announced only on Tuesday – is obviously intended to protect Durham against possible dismissal in the Biden administration (since a special advocate can only be dismissed for “good cause”). As to why we are only learning about it now, Barr suggested he did not want to make the announcement before the election to avoid influencing the outcome.
But for Trump’s allies, this is not enough. Reports by Jonathan Swan of Axios that Trump’s allies viewed the appointment of a special advocate as “a smokescreen to prevent the release of the so-called Durham Report,” and that the president even considered sacking Barr.
Barr visited the White House on Tuesday and stayed there for over two hours; Swan reports that the attorney general meet with White House chief of staff Mark Meadows. We don’t know what they discussed.