President Donald Trump, over the last 24 hours, has made one thing abundantly clear: His final few weeks in office will not be lacking in the legal drama and corruption concerns that have pervaded his presidency.
After having already pardoned his former National Security Adviser Michael Flynn, Trump has been discussing potential broad preemptive pardons for his children Donald Jr., Eric, and Ivanka; his son-in-law Jared Kushner; and his lawyer Rudy Giuliani, per reporting from ABC News and the New York Times. None of these people has been charged with any crime, so these pardons would have to entail sweeping assertions of impunity.
Meanwhile, a newly released, heavily redacted court opinion revealed that federal investigators have been probing an alleged corrupt scheme to provide political contributions (apparently to the Trump campaign or Republican groups, but we don’t know the specifics) in exchange for a presidential pardon from Trump. The identities of the people involved in this matter are redacted, but the news makes clear that even before Trump lost, matters involving his pardon power have been under investigative scrutiny.
Also on Tuesday, Attorney General Bill Barr returned to the headlines after a quiet period. Barr told the Associated Press that the Justice Department has “not seen fraud on a scale that could have effected a different outcome in the election.” Perhaps to soften the blow to President Donald Trump’s hopes from this admission, Barr also revealed that he has appointed John Durham — the US attorney investigating the conduct of the FBI’s Trump campaign/Russia probe — as a special counsel, to make it more difficult for Biden to fire him. (Barr spent more than two hours at the White House Tuesday afternoon.)
All in all, Trump is continuing to try to bend law enforcement agencies to his will — but having limited success of late. So he’s being increasingly drawn to the pardon power, which he can exercise on his own authority, to save his close associates and family members from possible legal consequences.
Trump has discussed potential preemptive pardons for his children
Around midday Tuesday, I wrote about how “Trump’s pardon shenanigans are ramping up,” because his recent pardon for Flynn contained preemptive aspects, and because he was reportedly discussing a similarly preemptive pardon for his lawyer Rudy Giuliani.
But the news of the day wasn’t done. The New York Times’s Maggie Haberman and Michael Schmidt later reported that Trump has also talked with advisers about potentially granting preemptive pardons to his three eldest children — Donald Trump Jr., Ivanka Trump, and Eric Trump — as well as his son-in-law, Jared Kushner.
The business dealings of both the Trump Organization and the Kushner family have come under investigative scrutiny, and Donald Jr.’s meeting with a Russian lawyer to try and get dirt on Hillary Clinton was also scrutinized as part of special counsel Robert Mueller’s Russia probe.
But none of these have resulted in any criminal charges against Trump’s children or Kushner. So any hypothetical pardon would have to be quite broadly written and preemptive. (It also could not cover state crimes, which could be a problem, as the major Trump Organization investigation is being pursued by New York state prosecutors.)
It would also, of course, be a stunning and unprecedented use of executive power for a president to grant broad immunity from federal criminal prosecution to his children. Some Trump allies, like Fox News host Sean Hannity, are arguing that the move would be justified because they expect prosecutors under Biden to pursue a “witch hunt” of people close to Trump.
Yet if Trump — or his children — have political ambitions in 2024, that might present an incentive to hold back on the broadest possible uses of the pardon power.
We learned of a “bribery-for-pardon” investigation
Just as Trump has been turning more attention to how far he wants to go in using his pardon power, news broke that federal investigators are already looking into what they view as a corrupt effort to get such a pardon from Trump.
The revelation came from a newly unsealed court opinion by Beryl Howell, the chief judge of the US District Court for the District of Columbia. The opinion is heavily redacted, though, so we are missing key details, including the identities of the people involved in this purported scheme. But there’s a fair amount we can piece together from the unredacted bits.
The gist is that investigators say there are two separate schemes aimed at getting a certain person a pardon or sentence reduction.
- One is a “bribery-for-pardon” scheme, 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 would lobby senior White House officials for this pardon without officially registering as lobbyists under the Lobbying Disclosure Act.
Investigators uncovered these two purported schemes while reviewing material seized in the course of a preexisting investigation. But there was one issue: One of the people involved in lobbying the White House was a lawyer. So investigators wanted to make sure they had a judge’s sign-off that reviewing communications involving that person wouldn’t violate attorney-client privilege. Judge Howell gave them that sign-off — because the communications in question were also copied to another person, who was not an attorney.
Speculation churned on Twitter about who could have been seeking this pardon. There are a few clues — the person appears to have a short last name and appears to be in Bureau of Prisons custody. 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 is someone who has received little news coverage so far.
There’s no indication yet that anyone has been indicted as a result of this investigation. But Judge Howell unsealed the opinion — issued back in August — after giving the government three months to take further investigative steps. The identities of the people are redacted because they haven’t yet been charged.
It’s also important to note that no assertion of any knowing wrongdoing on the part of President Trump or White House officials is present in the unredacted parts of the document. (“Pardon investigation is Fake News!” Trump tweeted.) But it certainly suggests that unscrupulous people are trying to benefit from Trump’s pardon powers.
Bill Barr had a busy day
Attorney General Bill Barr has kept a relatively low profile in recent weeks, but he made news on a number of fronts on Tuesday.
First, Barr told Michael Balsamo of the Associated Press that the Justice Department has “not seen fraud on a scale that could have effected a different outcome in the election.” The statement got a great deal 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 it’s notable because, despite Barr’s well-deserved reputation as a staunch political ally of Trump’s, he isn’t willing to go so far as to back Trump’s election fraud claims.
Second, and perhaps to soften this blow for Trump, Barr told the Associated Press — and also Congress — that he has named US Attorney John Durham as a special counsel.
Back in early 2019, Barr tasked Durham, the US attorney for Connecticut, with probing the US government’s handling of the investigation of Trump associates’ ties to Russia. Since then, Durham’s investigation has unfolded mostly behind the scenes. (The sole charge has been FBI lawyer Kevin Clinesmith’s guilty plea over falsifying a document used in a surveillance application — a matter already uncovered by the Justice Department’s inspector general.)
It’s unclear whether Durham has found serious misconduct beyond Clinesmith. But Trump and his supporters have long hyped the prospect that Durham will bring charges against top former government officials who investigated the president. Barr reportedly placed heavy pressure on Durham to finish at least some of his work before the 2020 election, but Durham’s top deputy Nora Dannehy resigned in protest in September, and Durham ended up making no further public moves before the election.
Barr’s appointment of Durham as special counsel — made in mid-October, but not announced until Tuesday — is evidently meant to shield Durham from potentially being fired in the Biden administration (since a special counsel can only be fired for “good cause”). As for why we’re only learning of this now, Barr suggested he didn’t want to make the announcement before the election to avoid influencing the result.
But for Trump allies, this isn’t enough. Axios’s Jonathan Swan reports that Trump allies saw the special counsel appointment as “a smokescreen to forestall the release of the so-called Durham report,” and that the president has even mused about firing Barr.
Barr visited the White House on Tuesday and stayed there for more than two hours; Swan reports that the attorney general was meeting with White House chief of staff Mark Meadows. It is not known what they discussed.