The Russia investigation may be drawing to a close. According to multiple news organizations, special counsel Robert Mueller is preparing to report his findings to Attorney General Bill Barr in the coming weeks. It’s unclear what the report will say—and how much of it Barr will make public—but it’s entirely possible, even likely, that Mueller has not found conclusive proof of a corrupt bargain between the Trump campaign and the Russian government during the 2016 election.
If so, that may be because no such evidence exists. But it’s more likely that President Trump’s effort to hinder the Russia investigation simply worked—specifically, his implicit promise to pardon allies in exchange for their silence.
The case of Paul Manafort is illustrative. Mueller scored a major victory in September when the former Trump campaign chairman agreed to cooperate with the investigation. I noted at the time that Manafort was one of the few Americans who could give a comprehensive account of the Trump campaign’s interactions with Russia. His extensive ties to Moscow made him the most likely conduit for an explicit quid pro quo arrangement with the Kremlin if one took place. Manafort was also the only American participant in the infamous Trump Tower meeting in June 2016 who was not related to the president by blood or marriage.
Former federal prosecutors noted how Mueller’s approach seemed to mirror traditional white-collar and organized-crime cases: Strike bargains with low-level members of a conspiracy, get testimony against higher-level members of it, and work your way in. The collapse of Manafort’s plea deal may have short-circuited that strategy, perhaps fatally. In November, Mueller told a federal judge that he believed Manafort had breached his plea agreement by lying to federal prosecutors multiple times. The judge largely agreed with that assessment earlier this month.
Why would Manafort implode a deal that would secure him a shorter prison sentence? Trump’s implicit offer of pardons appears to have played a role. The Russia investigation always operated under this sword of Damocles. Presidential pardons don’t affect state prosecutions, however, making the latter a fail-safe of sorts in case the president started to shut down Mueller’s inquiry. The special counsel’s office reportedly began working with the New York attorney general’s office in the summer of 2017 on the financial-crimes portion of Manafort’s case. Manhattan district attorney Cyrus Vance, Jr. is also reportedly preparing to file charges against Manafort soon.
Trump has been signaling his views on the pardon power for years. In August 2017, he pardoned former Arizona sheriff Joe Arpaio, who was convicted of contempt of court for racially profiling Hispanic motorists despite a judge’s order to desist. Last summer, Trump also wiped away conservative filmmaker Dinesh D’Souza’s conviction for campaign finance violations. Both men staunchly support the president and blamed politicized investigations for their downfall. While Trump isn’t the first president to misuse the power of mercy, the two pardons made it unusually clear that he would wield pardons for purely partisan gain.
After a Virginia jury convicted Manafort on multiple charges last August, Trump became even less subtle. The president publicly lauded his former campaign chairman for refusing to “make up stories in order to get a ‘deal’” while harshly criticizing Michael Cohen, his former personal attorney, for cooperating with investigators. Hours later, Rudy Giuliani told reporters that the president wouldn’t be issuing any pardons until the investigation had wrapped up. Taken together, the two messages suggested pardons would be on the table if their potential recipients kept quiet. The New York Times reported earlier this month that Trump’s lawyers made similar assurances in private as well.
These efforts haven’t gone unnoticed by the special counsel’s office. In a sealed hearing earlier this month, Mueller’s team offered two motives for why Manafort lied to them about part of the investigation. One of those motives is obscured by a thicket of partial redactions in the official transcript; the other is that telling the truth could have “negative consequences in terms of the other motive that Mr. Manafort could have, which is to at least augment his chances of a pardon.”
Most discussions of the Russia investigation center around the most important line of Mueller’s inquiry: whether the Trump campaign illegally conspired with the Russian government during the 2016 election. But even if Mueller doesn’t find evidence of this, his investigation has already proven its worth by uncovering a viper’s nest of illegal conduct during the 2016 election. He shed light on how Russian operatives used social media networks to manipulate and influence public opinion. He uncovered suspicious contacts between Russian operatives and Trump campaign officials, and showed how they lied to keep those contacts hidden from the public. He also may have uncovered serious wrongdoing by the Trump Organization and the president’s inaugural committee, both of which are now under investigation by federal prosecutors in New York and Washington.
And let’s not forget the other investigative path that Mueller is pursuing, which may turn out to be more legally significant than the collusion question: whether Trump obstructed justice by firing FBI Director James Comey. Trump’s implicit offer of pardons to erstwhile co-conspirators could bolster an obstruction-of-justice case against the president. Even his latest pick to run the Justice Department acknowledged the potential legal peril. “Do you believe a president could lawfully issue a pardon in exchange for the recipients’ promise to not incriminate him?” Vermont Senator Patrick Leahy asked Barr during his confirmation hearing. “No,” the attorney general replied. “That would be a crime.”
That may give some solace to Trump’s opponents as the Russia investigation moves from the Justice Department to the halls of Congress. Mueller’s findings on obstruction of justice, should they be made available to lawmakers, could make it easier to remove the president from office. But the obstruction will have already done its damage. By floating pardons in exchange for silence, Trump denied Americans the fullest possible answer to a question that’s been haunting the nation since the Russia investigation began: What happened?