Mueller Will Label Dangling Pardons as Obstruction of Justice Just as He Drops More Conspiracy Charges

NBC has a refreshingly sober and detailed report, explaining that Mueller and the President’s lawyers are giving up, at least for now, on the idea that Trump will be interviewed by the special counsel team.

Far more interesting than that news are the details about Mueller’s plans for his report on obstruction of justice. The report, originally slated for May to July, may come even sooner.

Prior to Monday’s raid, Mueller’s team had been aiming to finalize a report on its findings on whether the president has tried to obstruct justice in the Russia investigation in the coming months, as early as May or as late as July, three sources said. That timeline hinged in part on reaching a decision on a presidential interview, these people said. One person familiar with the investigation described a decision on an interview as one of the last steps Mueller was seeking to take before closing his investigation into obstruction.

Now, according to two sources, Mueller’s team may be able to close the obstruction probe more quickly as they will not need to prepare for the interview or follow up on what the president says.

And it appears that Mueller will accuse the President of obstructing justice in four ways:

Three sources familiar with the investigation said the findings Mueller has collected on Trump’s attempts to obstruct justice include: His intent for firing former FBI Director James Comey; his role in the crafting of a misleading public statement on the nature of a June 2016 Trump Tower meeting between his son and Russians; Trump’s dangling of pardons before grand jury witnesses who might testify against him; and pressuring Attorney General Jeff Sessions not to recuse himself from the Russia investigation.

All of these are predictable (though some other details of obstruction, such as the role he asked Rod Rosenstein and Jeff Sessions to play to provide cover for Comey’s firing, are not in there).

But the most interesting is the no-nonsense claim that offering pardons to people who might incriminate him personally amounts to obstruction of justice.

That makes a lot of sense — but it is constitutionally aggressive, because it’s unclear whether there can be any limit to the president’s pardon power. And it will go to Congress in a report inviting impeachment around the same time as Mueller will be rolling out the far more serious charges against Trump’s spawn, probably with Trump himself named as a co-conspirator.

I’m not sure whether that report will affect Trump’s calculation on whether he should pardon people like Don Jr and Jared — or if Congress will act to impeach to limit the political damage of what’s coming to themselves.

But it may change the legal status of any pardons offered after that date.

51 replies
  1. Rugger9 says:

    The race to flip might have gotten more interesting, with Cohen allegedly filing an emergency motion to stop Avenatti from deposing hi, because he will be pleading the 5th amendment protection against self incrimination.  This to me actually makes some sense since the raid would reasonably lead to criminal prosecution, and the 5th isn’t really available for civil matters.  For me this also makes me question how many legal bullets Cohen will be willing to take for Caesar Disgustus, because Avenatti mentioned that the next guy on his list is the Kaiser, who is (for the moment) un-indictable but not protected against being deposed.  KellyAnne’s husband made that precedent.

    • SpaceLifeForm says:

      “and the 5th isn’t really available for civil matter”

      Maybe Cohen *KNOWS* that this mess is not iust a tort?

  2. TheraP says:

    One of the Spawn is, I believe already out of the country, with her hubby and Pence (to lead them in prayer?).  At the South American meeting of leaders, from which a Trump in melt-down mode, was banished (I believe).

    It disgusts me how this female spawn loves to act the international leader!  But indictments?  Please, please, please….

  3. maestro says:

    And it will go to Congress in a report inviting impeachment around the same time as Mueller will be rolling out the far more serious charges against Trump’s spawn, probably with Trump himself named as a co-conspirator.

    Do we have any concrete information on when we expect more charges to be filed? And what we expect them to consist of?

  4. Neil says:

    This info sounds as though it must have come from Mueller’s team as opposed to witnesses and/or their reps. Interesting that such a leak would happen now. Where else could it come from?

    • Peterr says:

      It could have come from Trump’s team.

      In the discussions between Mueller’s team and the WH, I could easily imagine that as tensions rise and Trump’s lawyers start talking about there being no interview without a subpoena, Mueller’s folks decide they’ve had enough of Trump’s prevaricating, and further decide to shake Trump up by giving his lawyers a peek at their hand with some version of this: “Look, at this point this interview is a courtesy. We’ve got enough already to go forward with four separate counts of obstruction of justice. [describe the four counts briefly] We’re offering you and your client an opportunity to have your say about what you believe happened, and if you choose not to avail yourselves of that opportunity, that’s on you, and we’ll go ahead and finish our report and put it out. And then we’ll see you in court or watch you in hearings before the Judiciary Committee of the US House of Representatives as they consider possible articles of impeachment. Have a nice day.”

      Reading that NBC piece, it reads to me as if most if not all of the unnamed sources are from Trump’s team, with lots of speculating about what Mueller may do. “Two people familiar with the investigation said they expect a flurry of activity from Mueller’s office on the investigation in the next six weeks around the anniversary of his appointment as special counsel.” That sounds a lot like “Trump was told by his lawyers that Mueller would be done by Thanksgiving . . . or Christmas . . . or Spring Break . . .”

  5. bmaz says:

    Eh, I don’t see it as Constitutionally problematic at all. The Article II pardon power is close to absolute. That means, however, only that the pardon sticks. It does NOT mean that the act cannot be an element in an obstruction case. That is not a “limit” on the Article II pardon power.

    • Charles says:

      You read my mind. I have the power to drive a car. That doesn’t mean that if I deliberately strike a pedestrian, I have not committed a crime. The pardons situation is parallel.

    • earlofhuntingdon says:

      Nice distinction.  The pardons stand, but their use in furtherance of a crime – obstruction – carries with it legal liability for the president’s abuse of his powers.  Untread ground, but honors both the pardon power, the president’s obligation to fully and faithfully defend the Constitution and enforce the law – including the overarching rule of law – and the criminal prohibition on obstructing the application of that law through the abuse of an otherwise legitimate power. Of course that inhibits the president’s use of the pardon, but only his use of it to commit a crime.  That seems to honor the competing forces at work here.

      That Congress could resolve some of these disputes through impeachment and trial is an alternate, not exclusive means, to honor the Constitution, and the laws made pursuant to it, and the chief executives oath of office.  That Trump considers any law threatening his whim to be invalid is irrelevant, except perhaps as a reason to impeach him.

    • Kevin Finnerty says:

      Exactly. I don’t know why this is so hard for people to wrap their heads around. Just swap the pardon power out for another presidential power. The Constitution grants the president the ability to sign a bill into law. Does this mean the president can accept a bribe in connection with the exercise of that authority? It’s absurd, and frankly a sad commentary on the extent to which we as a society grant impunity to powerful actors without question.

      • Peterr says:

        In 2008, IL governor Rod Blagojovich had and exercised the power to name someone to fill then-Senator Obama’s seat in the US Senate after he was elected president. When he was charged with soliciting bribes in regard to his exercise of his executive power to name Obama’s successor – he ultimately named Roland Burris – he ended up going to jail for it. From wiki:

        Under the direction of US Attorney Patrick Fitzgerald,[103] Governor Blagojevich was arrested at his home by federal agents on December 9, 2008, and charged with corruption. The Justice Department complaint alleged that the governor conspired to commit several “pay to play” schemes, including attempting “to obtain personal gain … through the corrupt use” of his authority to fill Barack Obama’s vacated United States Senate seat (as stated, the vacancy was due to Obama’s resignation, following election to presidency), claiming that in wiretapped recordings Blagojevich discussed his desire to get something in exchange for an appointment to the seat. After various outreach efforts, he appointed former state attorney general Roland Burris on New Year’s Eve 2008. Burris was seated after some initial opposition in mid-January 2009.[104] A trial was set for June 3, 2010,[105] and U.S. Attorney Patrick Fitzgerald spoke out on the charges,[106] characterizing Blagojevich’s actions as trying to auction the open seat off to “the highest bidder”.


        The Illinois House and Senate moved quickly thereafter to impeach the governor for abuse of power and corruption. On January 8, the Illinois House voted 114–1 (with three abstentions) to impeach Blagojevich.[107][108] The charges brought by the House emphasized Blagojevich’s alleged abuses of power and his alleged attempts to sell gubernatorial appointments and legislative authorizations and/or vetoes. One of the accusations was an alleged attempt to sell the appointment to the United States Senate seat vacated by the resignation of Barack Obama. Blagojevich was taped by the FBI saying “I’ve got this thing, and it’s fucking golden. I’m just not giving it up for fucking nothing.”[109] He was removed from office and prohibited from ever holding public office in the state of Illinois again, by two separate and unanimous votes of 59–0 by the Illinois Senate on January 29, 2009.


        Blagojevich was indicted by a federal grand jury in April 2009.[130] Most of the charges related to attempts to sell the Senate seat vacated by then-President-elect Barack Obama.[131] On August 17, 2010, he was convicted on one of the 24 federal charges, a charge of lying to the FBI, and the jury was hung on 23 other counts.[111] The defense did not call a single witness, claiming that prosecutors did not prove their case. Because the jury could not agree on the remaining charges, a mistrial was ordered for those counts. Within fifteen minutes after the mistrial was declared, the prosecution team announced that they would definitely pursue a retrial on the twenty-three mistrial counts. A post-verdict court date was set for August 23, 2010.

        Federal prosecutors reduced the number of counts for Blagojevich’s retrial,[132] and on June 27, 2011, he was found guilty of 17 of the 20 remaining charges, not guilty on one, and no verdict was rendered by the jury on two counts.[133] He was found guilty on all charges pertaining to the Senate seat, as well as extortion relating to state funds being directed towards a children’s hospital and race track. However, he was acquitted on a charge pertaining to the tollway extortion and avoided a guilty verdict (by split decision) on attempting to extort Rahm Emanuel.[134][135] On December 7, 2011, Blagojevich was sentenced to 14 years in federal prison.[136]

        There was discussion in the Senate about not seating Burris, but ultimately they allowed him to take his seat as Illinois’ senator. Thus, the act of using a specific executive power was allowed to stand, even when the broader action was found to be criminal.

      • pseudonymous in nc says:

        Last 18th-century limited monarchy.

        When time deprecates various checks on power — the veto of the electoral college, the impeachment power, the power of constitutional amendment  — and turns them into things that are perceived to be for exceptional circumstances as opposed to just hard ones, this is where you end up.

        The US will probably end up with a presidency more like that of other developed democratic republics, but it’ll take a hard road to get there.

    • Peterr says:

      Rod Blagojovich had the power to appoint Roland Burris to the US Senate after Obama was elected president. The fact that he was charged and ultimately convicted of corruption in trying to sell the seat did not change the fact that Burris was the legal holder of his seat in the US Senate.

      Blago was convicted for HOW he tried to use the power, but the seat still belonged to Burris after Blago was convicted.

    • dw says:

      Another example:  the President has the constitutional power to be Commander in Chief.  That doesn’t mean he can order a military officer to assassinate a Supreme Court Justice or Member of Congress.

  6. smurphy1 says:

    but it is constitutionally aggressive, because it’s unclear whether there can be any limit to the president’s pardon power.

    This doesn’t matter in this case. The allegation is not the trump pardoned someone who was going to testify against him, it’s that he was offering to pardon someone with the implication that the pardon would be in exchange for them not testifying. The obstruction is not the pardon, it is the implicit quid pro quo of dangling a pardon in front of someone who might testify against you.

  7. JAAG says:

    Maybe this was covered elsewhere on the site, sorry in advance.

    1. stormy is cooperating
    2. Avenatti on msnbc, I think it was after the Cohen raid, saying that Stormy sat with a drawing expert who drew “someone he recognized” when Stormy described the man in the parking lot who utterred threats.
    3. If Mueller has this new info, corroborating conspiracy of some kind (the simple thuggish kind that doesn’t include delaware LLC shit) re: Access hollywood maybe that accellerates his report in some way.

    Just little data points/reasons why the calclulus as to an interview might have changed. If Cohen and co. now have to admit they sent a thug, lots of his kids have lied about it etc.

    Whatever the import, people should see when Avenatti says he thinks he recognizes the pencil sketch. It feels like the most surreal and cheap straight to video kind of plot twist. I like Avenatti, just saying this is getting really gross…I had to get up from the couch and shake myself to make sure I hadn’t fell asleep and spilled Doritos all over myself while weird – dreaming about politics.

    • SpaceLifeForm says:

      FBI has already requested that Avenatti hold back on release of sketch. And he agreed.

      FBI knows already who the sketch reveals.

      • earlofhuntingdon says:

        Well, isn’t that special.  Chicken Little and his falling sky might be coming to town.  Which reminds me, where is Mike Pence, galavanting with Ivanka in South America?

        • lartwielder says:

          Good question. Been wondering about that myself. I have a /*very*/ hard time believing that Pence had no idea of anything about all this. How can a person who has the position that he had during the campaign and transition /*not*/ have a clue about what was going on . . .

          What is conspicuous to me is the complete radio silence from Pence. I know he’d love to be President Pence before 2020, but what I can’t understand is why he is not catching all kinds of doo-doo from Trump’s donor base for not stepping up . . .

  8. harpie says:

    Kyle Griffin @kylegriffin1 Michael Cohen sometimes taped conversations with associates, according to three people familiar with his practice, and allies of the president are worried that the recordings were seized by federal investigators, WaPo reports. [LINK] 

  9. earlofhuntingdon says:

    I think the odds that the Don will issue blanket, prospective pardons to Ivanka and Jared are about 100%.  Possibly also to his two sons.  Ironically, that banana republic move might ensure his impeachment or his later indictment for obstruction.

    He’ll be more conflicted about issuing one to Michael Cohen, especially if it doesn’t shut him up.  If Don thinks he might pay a price for his misdeeds, he’ll make sure everyone outside the family does, too.  Even that distinction he ignored when his scalp reduction surgery hurt poor babykins: he attacked his then wife who failed to tell her brilliant, highly-educated, adult spouse that recovering from surgery can be painful.  (I believe she now officially denies it.)

    • bmaz says:

      Quite the opposite, pardons remove any right to 5th Amendment privilege, much like immunity. They are not a solution for Trump.

      • earlofhuntingdon says:

        That might be why I wrote,

        “He’ll be more conflicted about issuing one to Michael Cohen, especially if it doesn’t shut him up.”

      • Peterr says:

        Speaking of Trump and pardons . . .

        President Donald Trump is poised to pardon Scooter J. Libby, the former chief of staff to Vice President Dick Cheney, according to sources familiar with the president’s thinking.

        The president has already signed off on the pardon, which is something he has been considering for several months, sources told ABC News. . . .

        If this happens, Scooter loses his 5th amendment privilege. It’s been ten years since Scooter’s trial, and so the statute of limitations may have passed on all kinds of stuff, but is there anything for which Scooter’s testimony might be important that isn’t past the SOL?

        Of course, that would imply that there’s any inclination in the DOJ leadership to pursue the Plame matter, which is not a statement that assumes facts not in evidence but goes so far as to ignore facts that are in evidence.

        But if either house of the US Congress changes hands in January 2019, I could imagine one or more committees wanting to have a word with our old pal.

  10. Kevin Finnerty says:

    If these reports are true, I’m genuinely confused why Mueller thinks he will get two bites at the apple on this. Once an impeachment referral on obstruction is issued, we will be plunged into a constitutional crisis. In that environment I just don’t see how an investigation into the Russian angle can continue. Am I missing something?

  11. Domye West says:

    “…probably with Trump himself named as a co-conspirator.”

    Marcy, I think back in Nov you said that there was going to be news breaking soon that connected Trump directly to the Flynn/Kushner issues- is this part of that? Any update on that?

  12. scribe says:

    Actually, I recall The Federalist Papers had a discussion of just this kind of issue re the pardon power, to the effect that the pardon power was well-nigh absolute but that any president pardoning himself deserved to be immediately impeached.

    Moreover, there was a tangential reference – just one throwaway clause at the end of Federalist #74 – to the effect that it would encourage criminality if there was knowledge in advance that pardons might be available.  The context of that remark was a discussion of why the pardon power had to be solely an executive one, that the difficulty and time-consumption of gathering the legislature to act might well lead to a situation where the legislature would decide in advance to authorize pardons (and thereby encourage criminality).

    A slender reed on which to base an argument, but Hamilton had thought about the issue.

    • pseudonymous in nc says:

      The pardon power is an act of grace. The constitutional state and not the head of state is the fount of justice in the US, but the president as chief magistrate has quasi-monarchical powers here.

      The founders wanted the impeachment power used against people who abused the public trust and shat upon the constitution, and it hasn’t been used often enough.

      • philadelphialawyer says:

        Chief Justice Taft, speaking for unanimous SCOTUS, re pardon power and impeachment…
        “If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment, rather than to a narrow and strained construction of the general powers of the President.”
        Page 267 U. S. 122

  13. dcom says:

    What I’m trying to figure out is how the Cohen raids fit into Mueller’s timeline and whether or not the Manafort-Russian-collusion allegations and disclosures have accelerated things and tipped the first domino on that timeline.

    The Cohen raids are just so significant. The planning must have taken quite a while and Mueller surely knew his investigation would be at much greater risk once they took place. Referring the Cohen case to the NYAG accomplished multiple advantages. First, it set up a separate line of attack in case Trump attempted to end the investigation in some way. Second, it made any attempt to end the Mueller investigation much less impactful since doing so would not fully relieve the pressure. Third, the search might and likely would result in significant Russia-collusion evidence.

    And this is all happening under the context of the ongoing negotiations between Trump and Mueller and a potential interview. Reports about that negotiation have been going on for quite a while now and I’m wondering if the timing of the Cohen raids has any relationship. I don’t think we really know anything about that status of those negotiations other than what is reported, which I presume is coming from the Trump camp. It’s very possible that they’ve come to an impasse and Mueller is done waiting.

    It’s hard to speculate but it feels like things are accelerating…like a race between Trump firing Mueller or someone critical to the investigation and Mueller tipping the next domino. Doesn’t the grand jury meet tomorrow?

  14. JD12 says:

    They probably wanted to interview Trump before they went after Cohen to see if he’d perjure himself. They may have moved ahead after deciding the interview wouldn’t happen.

    Trump has a habit of projecting his problems on the entire country. So when he said attorney client privilege is dead, he probably thought he and Cohen were protected when they really weren’t. If they thought they had protection, there could be evidence to seal Mueller’s case and the interview isn’t completely necessary. Whatever Trump thought, he looked like someone who just realized they’re dead to rights.

  15. david sanger says:

    so the clock is ticking on a Cohen indictment. Weeks? Months?

    they likely have a lot of material to go thru before it even gets to the prosecution.

    • Rayne says:

      They might have had enough evidence already before SDNY executed the search warrants. It took from the morning of the pre-dawn no-knock raid on Manafort’s home on 26-JUL-2017 to 30-OCT-2017 to indict Manafort. IANAL but I think it will take less time to indict Cohen because there was surely a lot of material collected before the referral and search warrants’ execution this week. I’m also wondering if there is any advantage to indicting sooner rather than later (waiting for more evidence to solidify additional charges) if there is any concern about evidence spoliation.

      EDIT — 11:50 PM EDT — IMO, this is the most likely charge already prepared based on what is already known — the payment to Stormy Daniels as “Peggy Peterson” under the incompletely executed NDA:

      The payment was made less than two weeks before the 2016 election, so if Cohen is claiming he made the payment on behalf of Trump, that could be a “coordinated, illegal, in-kind contribution by Cohen for the purpose of influencing the election,” said Trevor Potter, former chairman of the Federal Election Commission, Business Insider reports. That would vastly exceed the legal contribution limit of $2,700.

      “If the money came from [Cohen], the best case you could argue is yes, it came from him, but it was not connected to the campaign,” says Simpson. “But given the timing and statements about that, that’d be a really hard sell.”

      Source: Michael Cohen Is in Trouble. We Just Don’t Know Exactly Why Yet

  16. Jill says:

    Looks like Comey is out there dangling something over Loretta Lynch’s head:

    Is he warning Lynch to keep her mouth shut?

    “Comey writes that he felt obligated to take more of a personal role as the public face of the investigation rather than deferring to then-Attorney General Loretta Lynch – in part because of something involving Lynch that he cryptically refers to as a “development still unknown to the American public to this day.”

    “In early 2016, the U.S. government became aware of information from a classified source, and “the source and content of that material remains classified as I write this,” according to the book.”

    “Had it become public, the unverified material would undoubtedly have been used by political opponents to cast serious doubt on the attorney general’s independence in connection with the Clinton investigation,” Comey writes, without further elaboration.”

    • Michelle says:

      Sounds like this story:

      A secret document that officials say played a key role in then-FBI Director James B. Comey’s handling of the Hillary Clinton email investigation has long been viewed within the FBI as unreliable and possibly a fake, according to people familiar with its contents.

      In the midst of the 2016 presidential primary season, the FBI received what was described as a Russian intelligence document claiming a tacit understanding between the Clinton campaign and the Justice Department over the inquiry into whether she intentionally revealed classified information through her use of a private email server.

      The Russian document cited a supposed email describing how then-Attorney General Loretta E. Lynch had privately assured someone in the Clinton campaign that the email investigation would not push too deeply into the matter. If true, the revelation of such an understanding would have undermined the integrity of the FBI’s investigation.

      Current and former officials have said that Comey relied on the document in making his July decision to announce on his own, without Justice Department involvement, that the investigation was over. That public announcement — in which he criticized Clinton and made extensive comments about the evidence — set in motion a chain of other FBI moves that Democrats now say helped Trump win the presidential election.

  17. Trip says:

    It’s all good and fine IF Trump Inc is caught in the web and eaten by the spider through obstruction. But if the investigations are stalled or stopped completely, then do the Mercers, and other puppet masters, once again, walk away scot-free? They get to live another day of manipulating and dictating leadership, policy and legislation? If so, the needle hasn’t been moved at all on the dark powers in shadow governing which gave us Trump. Their next candidate will be worse and far more competent at screwing over the country than the Donald.

  18. JD Blakley says:

    I’m surprised there’s nothing about Trump’s asking Coats/Pompeo to influence Comey to shut down the Flynn investigation. Maybe rolled up into the first item (“intent for firing former FBI Director James Comey”)? That is the type of interference that got Nixon into hot water at the end, right (tapes revealing he pressured other security officials to pressure the FBI to drop investigations)?

  19. R Wood says:

    Question(s) as to the timing. I’m trying to see the advantage of indicting Cohen quickly. With the Pandora’s box of evidence they must have from the recent raids on his office, and the work that needs to be done by the taint team, would it not take longer to complete the process than it did for Manafort?  I know removing Trump is the desired action, but would it not be wise to investigate every path that evidence takes you first? Unless the better option is to flip Cohen? Either way, I’m sure some information will be flowing out of NYC and toward Mueller.

    Also, whats the advantage of Mueller filing his report sooner? As mentioned up thread it was five months post raid to charges against Manafort. If the same is applied to Cohen, that puts us into September, and still two months before the mid-terms. In other words, which congress is most-likely to hear these impeachment charges?

    Are we weighing the chances of a successful impeachment against the possible further damage that is done before it happens?

    Obviously IANAL, so I ask my questions here and try to keep up.

  20. jon says:

    I need some some clarity on the spawns legal situation. Can we conclude that don jr and jared are targets in Mueller’s investigation since we have not heard of their appearance before his grand jury, or will they be called in soon..thanks

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