The Pardon Trap.

Exercising The Pardon Power Is Not Without Risk.

When a reporter asked Trump whether he would pardon his own personal attorney, Michael Cohen, Trump responded “stupid question.” It’s not a stupid question. The search warrants against Cohen’s office, home, hotel room and safety deposit box are undoubtedly very concerning to Trump. In addition, the government revealed in court that it previously had a warrant and was intercepting Cohen’s emails.

Search warrants like this don’t happen against attorneys, particularly Presidential attorneys like Cohen, unless the evidence the government already has is compelling. The government almost certainly already has the goods on Cohen and an indictment is all but inevitable.

Many believe the government may “flip” Cohen, offering him a deal in exchange for information about Trump. Cohen not only knows where the Trump bodies are buried, he likely buried a lot of those bodies. One of those “bodies,” the payola to silence porn star Stormy Daniels, has already been unearthed. Who knows what else is out there.

Pardoning Cohen would remove the government’s leverage to flip Cohen. For this reason, it could be viewed as witness tampering. However, that is not the risk of pardoning Cohen, or Paul Manafort for that matter, I would like to discuss now. Pardoning Cohen or Manafort creates a trap that may lead to the truth coming out.

Right now Manafort and Cohen don’t have to answer any questions because they can invoke their 5th Amendment privilege. That privilege goes away with a pardon. To invoke the 5th Amendment the person must face a reasonable risk of prosecution from the testimony. Once pardoned there is no such risk and thus no basis to invoke the 5th.

The situation is analogous to one where the government grants immunity in exchange for testimony. Once the immunity is granted the subject cannot invoke the 5th Amendment. A pardon is like super-immunity.

If pardoned, Cohen and/or Manafort can be called before a grand jury, and without the ability to invoke the 5th Amendment, they can be compelled to testify. If they refuse to answer they can be found in contempt of court. If they perjure themselves they can be prosecuted for that because Trump’s pardon can’t extend to future crimes they might commit after the pardon.

Of course Cohen could try to invoke the attorney/client privilege. That might work unless another exception applies, such as the crime/fraud exception. Put simply, attorney/client communications in the furtherance of a crime (even crimes for which Cohen has been pardoned) are not privileged. Mere Presidential forgiveness of the crime would not eliminate this exception to the attorney/client privilege anymore than negotiated immunity from prosecution would.

So in our hypothetical scenario Cohen takes the stand before a grand jury. He is asked about communications with Trump. Cohen tries to invoke the 5th Amendment but is advised by the judge that he may not do so because Trump’s pardon has made him immune to prosecution. Cohen tries to invoke the attorney/client privilege but the judge rules the crime/fraud exception applies and that he must answer the question.

By taking away their 5th Amendment privilege a Trump pardon of Cohen and/or Manafort risks that they could be compelled to testify against him. I do love the irony of that.

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Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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