On Wednesday, The New York Times reported that President Donald Trump’s former lawyer John Dowd floated the possibility that Trump might issue pardons to Michael Flynn and Paul Manafort with their attorneys last year. Meanwhile, CNN has learned there was a discussion within the Department of Justice last summer, prompted by news stories speculating Trump could issue pardons via Twitter, over what would happen if he did decide to pardon anyone through social media.
In emails exchanged between Department of Justice employees working for the Office of the Pardon Attorney, they concluded that if Trump decided one day to tweet out a presidential pardon, the Department of Justice would probably “have very little if any involvement,” wrote Jennifer K. Mills, a former supervisory paralegal.
Trump has already pardoned Arizona Sheriff Joe Arpaio, a Trump loyalist who now says he’s running for Senate, for a criminal contempt conviction in a case dealing with racial profiling. Some conservatives have preemptively urged Trump to pardon family members and associates caught up in Mueller’s investigation into the Trump campaign’s ties to Russia. At this point no one has been convicted on any charges arising from the investigation.
But it’s very unlikely that the DOJ Pardon Attorney’s office would play a role in any decision to issue a pardon besides creating a formal record after the fact, unless Trump wanted the advice.
The Pardon Attorney’s Office’s public mission statement says “all requests for executive clemency for federal offenses are directed to the Pardon Attorney for investigation and review.”
But those rules don’t carry the force of law.
“Ultimately, we serve a support role to the President,” Mills wrote.
The emails, obtained through a Freedom of Information Act request made by the whistleblower rights nonprofit Government Accountability Project and provided to CNN, reveal a candid exchange within the Department of Justice about the process by which the government’s legal body might be consulted on a candidate for a presidential pardon – or pushed aside, depending on the President’s whim.
The conversation arose in late July when various media outlets began writing about what would be required of Trump to issue a pardon. One DOJ employee sent around a Huffington Post article by Ryan J. Reilly referencing an interview with former US pardon attorney Margaret Love – who said Trump could grant a pardon in any form he chooses at any time. USA Today’s Gregory Korte reported that Trump could do it in a tweet.
Ian Prior, the principal deputy director of public affairs for DOJ, declined to provide further comment on the email exchange or the possibility of Trump tweeting a pardon. But Samuel Morrison, a former attorney in the Pardon Attorney’s office, confirmed to CNN that OPA’s rules are purely administrative, and that they “do not bind the President in the slightest.”
Trump cannot pardon anyone convicted of state offenses and most civil offenses, and he can’t preemptively pardon someone before they commit a crime, Morrison explained. Besides that, he has full authority. “Trump is right in this case, no one can tell him what to do.”
That has major potential implications.
“He can shut down the Russia investigation,” Morrison continued, comparing it to when President George H.W. Bush pardoned everyone involved in the Iran-Contra scandal in 1992, arguing that the case had devolved into the criminalization of policy differences rather than legitimate crimes.
“These documents should warn us that we are clearly headed toward an unparalleled constitutional and accountability crisis,” wrote Louis Clark, the Executive Director of the Government Accountability Project.
Typically, convicts will follow a normal process, filing certain papers, letters, forms and petitions to the Office of the Pardon Attorney before the request is brought before the President for consideration.
But Trump doesn’t technically have to do any of that.
In the email exchange obtained by CNN, Mills references the case of Chelsea Manning, the former US Army intelligence analyst who leaked hundreds of thousands of military and diplomatic cables to WikiLeaks, writing that “in that case we did have a petition.” President Barack Obama on his last full day in office offered Manning a commutation rather than a pardon, cutting her 35-year sentence to the approximately seven years she’d already served.
Obama attempted to overhaul the backlogged Office of the Pardon Attorney during his tenure, which employed a small number of attorneys to handle hundreds of thousands of requests. The New York Times Editorial Board in 2016 recommended that Obama take the pardon process outside the endlessly mired DOJ process, and run it out of the White House by creating an independent commission – in order to grant clemency to a larger number of people.
The President has had this power all along – though there are concerns among some legal experts that Trump might consider using it for friends and family.
Mills and her colleagues additionally discussed the uncertain atmosphere within the government in the era of Trump. “We should be prepared for this, but who knows how to do that or if it matters at all,” Matthew Pendergrass, Mills’ colleague, wrote.
“There’s no way to plan for the unexpected,” Mills responded.