The Russia probe is moving into uncharted territory

 In World

Robert Mueller
Robert Mueller.
AP Photo/J.
Scott Applewhite

  • Robert Mueller’s team is digging into the limits of
    President Donald Trump’s pardon powers
  • Because there is little precedent governing
    presidential pardon powers, the special counsel is likely
    researching state-level cases with analogous elements that can
    be applied to the Russia investigation
  • Experts say Mueller is taking unprecedented steps to
    ward off efforts by the White House to guard itself against the

Reports that Robert Mueller’s team is researching President
Donald Trump’s pardon power are the latest indication that the
Russia investigation is now moving into unexplored terrain as the
special counsel’s team works to stay one step ahead of the

Mueller was appointed special counsel in May after Trump fired
FBI Director James Comey, and he is tasked with examining
Russia’s interference in the 2016 election, including whether the
Trump campaign colluded with Moscow to tilt the race in his

Bloomberg reported on Tuesday that Michael Dreeben, a
seasoned prosecutor working with Mueller, is delving into past
presidential pardons as the special counsel lays out his case. In
particular, Dreeben is examining the possible limits on Trump’s
pardon power.

The special counsel’s task is not easy, because there is no
federal precedent governing the limits of the president’s pardon
power. In light of that, Dreeben, a veteran Department of Justice
attorney who has argued more than 100
cases before the Supreme Court
, is likely digging into
state-level cases with analogous elements that can be
extrapolated as it relates to Trump’s executive authority.

Like the president, governors also have the authority to grant
pardons, and former federal prosecutor Renato Mariotti told
Business Insider that it’s possible Dreeben is looking into
state-level case law going back to the country’s early years to
find instances in which a court found a governor’s pardon to be

“Dreeben’s probably spending all day researching those cases, and
he’s probably going to find some analogy that Mueller can use” in
case Trump issues a preemptive pardon or one that stymies the

Mariotti added that the revelation was “really something” and is
one of the biggest developments to come out of the investigation
so far.

‘At some point, a court might have to step in’

Donald Trump

AP Photo/Evan

Trump’s pardon power became
a subject of interest after The Washington Post reported in July
that the president asked his advisers if he could pardon aides,
family members, and possibly himself as the Russia investigation
ramped up.

In addition to Trump, Mueller’s investigation also encompasses
several of the president’s close associates, like former campaign
chairman Paul Manafort;
former national security adviser Michael Flynn;
senior adviser and son-in-law Jared Kushner;
Donald Trump Jr.,
and more.

Constitutionally, the president’s pardon powers are very broad as they
relate to federal crimes, which Trump pointed out in July.

“While all agree the U. S. President has the complete power to
pardon, why think of that when only crime so far is LEAKS against
us.FAKE NEWS,” Trump tweeted at
the time.

Trump’s statements and subsequent actions indicate that “we have
every reason to think that this president will not hesitate to
use any means at his disposal to avoid scrutiny of himself, his
family, and his inner circle,” said Claire Finkelstein, a
professor at the University of Pennsylvania Law School.

To be sure, the president exercised that
in August, when he pardoned controversial Arizona
sheriff Joe Arpaio, who was convicted of criminal
in July for violating the terms of a 2011 court
order in a racial-profiling case. Arpaio was an early and ardent
advocate for Trump on the campaign trail, and Trump told a crowd
at an Arizona rally in August, shortly before granting the
pardon, that Arpaio would be “just fine.”

“Imagine a circumstance where Trump pardons one of his associates
in the Russia probe, that associate is then compelled to testify,
but they refuse to do so, they’re then held in contempt, and
Trump pardons them again,” Mariotti said. “At some point, a court
might have to step in because the president would be defeating
the lawful function of our criminal justice system.”

Another key question experts are exploring is whether Trump can
pardon someone if the pardon itself would fit into a pattern of

Finkelstein laid out a scenario in which one could draw a
parallel to the circumstances surrounding Comey’s firing in May.

James Comey
Former FBI Director James

Drew Angerer/Getty

The White House initially said
Comey was dismissed because of his handling of the Clinton email
investigation, but Trump later told NBC’s Lester
that “this Russia thing” had been a factor in his
decision. Comey also told the Senate
Intelligence Committee
in June that before firing him, Trump
had asked him to drop the Russia investigation, as well as the
FBI inquiry into Flynn, who was forced to resign as
national security adviser when it emerged that he had misled the
vice president about his contacts with Russians during the
transition period.

While the president has the power to fire the FBI director, he
does not have the right to do so if his intent is to cover up an
investigation into his potential misdeeds or those of his
associates. The question of whether Trump had “corrupt intent”
when he fired Comey is currently the basis of an obstruction-of-justice
Mueller is reportedly building against the president.

“One could make a parallel argument here and say that if the
president’s motive in issuing a pardon is to avoid scrutiny of
his or his associates’ actions, that constitutes an overstepping
of his constitutional authority,” Finkelstein said.

There is, however, one key difference between the two scenarios.
The question of Trump’s authority to grant pardons relates to the
exercise of a constitutional power that is explicitly listed,
while the other is an implicit power related to his right to
govern as head of the executive branch.

‘There’s very little precedent for this’

Jon Michaels, a professor at the UCLA School of Law, said Tuesday
that it’s becoming clear that by probing the open questions
surrounding Trump’s pardon power, Mueller’s team “is being very
strategic and are trying to preempt efforts that have the effect
of insulating the administration from the investigations.”

The lengths to which the special counsel’s team is going in order
to get ahead of the White House are unusual, said Jens David
Ohlin, a vice dean at Cornell Law School and a criminal-law

“These definitely are not normal or typical prosecution
strategies,” he said. “But this is no usual investigation,” and
“there’s very little precedent for this.”

Mariotti agreed, and pointed to his own career as a longtime
federal prosecutor, adding that he’d never investigated someone
he thought the president might pardon in the middle of the

“Think of how rare that is,” he said. “These are things we’ve
never seen before. The pardon power is usually used years later,
when someone’s already served time. So it’s unusual — very
unusual — for a prosecutor to be considering these questions.”

It’s impossible to know how things will play out if Mueller faces
off with Trump over his authority to grant pardons, experts said,
because of its unique and broad nature, and because it is
explicitly written in the US Constitution.

“It would take a lot for a court to limit the power,” Mariotti
said. “But this is the sort of crazy situation where it just
might happen.”

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