President Trump seems to believe that only crimes committed in secret are really crimes.
He “could stand in the middle of Fifth Avenue and shoot somebody”—that’s in public.
By contrast, the crime he keeps denying — “collusion” — invokes secrecy in its very definition.
Trump supporters dismiss this solicitation of foreign interference in the U.S. election as a “joke.”
But the pardons of Dinesh D’Souza and Joe Arpaio and the talk of pardoning former Illinois Gov. Rod Blagojevich (D) are not funny at all.
The president is sending an unmistakable public message that he will pardon those who stick with him in the Russia investigation.
Arpaio was found guilty of criminal contempt for defying a federal court order.
D’Souza freely admitted, both before and after Trump’s pardon, that he knowingly and purposefully violated campaign finance laws.
Both of these individuals made no bones about having broken the law and neither case was handled through the usual channels.
In most every other case, the Justice Department’s Office of the Pardon Attorney engages in a lengthy process that ends with a recommendation to the president. Precedent was completely ignored here.
In fairness, presidents are not required to follow a process. They have a Constitutional right to pardon.
But if the president issued those pardons to “corruptly persuade[s] another person or attempt[s] to do so… with intent to (1) influence, delay, or prevent the testimony of any person in an official proceeding; or (2) cause or induce any person to withhold testimony” he has obstructed justice.
How can we divine the president’s intent?
It’s difficult, to be sure. Conversations with staff or confidants may yield explicit information on his goals, but there is at least circumstantial evidence of his intent to obstruct.
First, the president made clear, at least in the D’Souza case, that no one asked him to consider a pardon. Neither D’Souza, nor anyone acting on his behalf, requested a pardon, according the president. Arpaio had not applied for a pardon either.
In other words, while the Russia investigation is swirling, and all the talk is about which one of the special counsel’s indictees will roll over on Trump, he picked two individuals out of the air who had been convicted on charges akin to those possible in this investigation and gave them surprise pardons.
That certainly suggests he was trying to send a message to those facing pressure for testimony from the special counsel.
Trump himself underlined the connection with a Russia investigation- related Tweet in July 2017, reminding everyone that he has the “complete power to pardon.”
What other reason could he have had for such a tweet? Is it part of his nonexistent series of tweets on presidential powers as enumerated in the Constitution? No.
Does he often take the opportunity to educate the public on such topics? No.
His tweet, and the subsequent pardons, were clearly designed to tell potential witnesses that they needn’t fear Robert Mueller’s indictments. Rather, if they demonstrated the personal loyalty so central to Trump’s vision of the world, he would take care of them.
In short, he was attempting to corruptly persuade key witnesses to delay or withhold their testimony in these cases.
That violates the law.
Trump probably doesn’t see it that way because the pardons were issued in public, not in secret.
The safety of our democratic institutions is not fully guaranteed by adherence to the letter of our founding documents. Shame, politics and/or commitment to the rule of law on the part of presidents have checked their power in this arena.
Trump has no shame and no commitment to the rule of law.
We’ll see how politics treats him.
Mellman is president of The Mellman Group and has helped elect 30 U.S. senators, 12 governors and dozens of House members. Mellman served as pollster to Senate Democratic leaders for over 20 years and as president of the American Association of Political Consultants.