Asked whether he planned to pardon former national security adviser Michael Flynn, Trump said “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens.” YET. And is anyone else thinking that that “we’ll see what happens” really means “we’ll see how thoroughly Flynn has flipped on me”?
Why yes, someone else is thinking that: a lawyer I call me.
And you know who else is thinking that? Another lawyer named Robert S. Mueller III.
Check out the following elements of obstruction of justice (straight from the US Attorneys’ Manual):
There is obviously a proceeding pending before the Department of Justice — it’s called a grand-jury investigation. And Donald Trump is manifestly aware of it (and obsessed with it). So the only question remaining — every time Trump opens his mouth or tweets about it — is whether he has “corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending.”
In plain language, that means whether Trump was up to no good in trying to mess around with Mueller’s investigation.
And why would Trump publicly suggest the possibility of pardoning Michael Flynn, a convict who is now publicly known to be a witness in the investigation of criminal wrongdoing that almost certainly involves Donald Trump himself?
Flynn has, without any doubt, already heard or read Trump’s comment. The message he heard loudly and clearly: we’ll see about a pardon for Flynn; if I get away unscathed, then so will he; If I walk, he walks.
That would be a corrupt purpose — the purpose of covering up one’s own criminality. And it looks like an attempt to change the mindset and behavior of the principle witness to that criminality — to get that witness to lie, obfuscate, and conceal in service of his master.
To be fair, Trump was answering a reporter’s question, not commenting about the matter unprompted. But by now his lawyers have surely told him that any word he says about the investigation or Michael Flynn will become an exhibit in an obstruction case against him. But alas, Trump’s lawyers have been unable to train their man-child of a client to repeat this simple sentence: “I cannot comment on an ongoing investigation.” There’s a reason that that ubiquitous mantra is repeated so often in our public discourse: people who are in trouble have lawyers giving them good advice — shut the hell up. But Trump can’t pull it off.
The predictable rejoinder of Trump apologists will be that a president cannot commit a crime by discussing or exercising a power granted to him under the Constitution. This argument is as tired as it is fatuous; just as a president may not accept a bribe to appoint someone a federal judge on the ground that he’s constitutionally authorized to appoint judges, so too he may not dangle pardons to obstruct a criminal probe on the ground that he’s constitutionally authorized to grant pardons. (The appropriate remedy — whether it’s indictment for committing a crime or referral to the House for impeachment for abuse of power — is a different question that I’ll tackle elsewhere.)
As Donald Trump strode to Marine One, his ridiculous yellow bouffant afloat on a gentle breeze, his lawyers were thinking to themselves, My God — he just committed another crime right there in front of the cameras. And Bob Mueller was watching.