'These are things we've never seen before': The Russia investigation is moving into uncharted territory

  • Mueller’s team is digging into the limits of President Donald Trump’s pardon powers
  • Because there is little precedent governing presidential pardon powers, the special counsel is likely researching state-level cases with analogous elements that can be applied to the Russia investigation
  • Experts say Mueller is taking unprecedented steps to ward off efforts by the White House to guard itself against the investigation

Reports that Robert Mueller’s team is researching President Donald Trump’s pardon power are the latest indication that the Russia investigation is now moving into unexplored terrain as the special counsel’s team works to stay one step ahead of the administration.

Mueller was appointed special counsel in May after Trump fired FBI Director James Comey, and he is tasked with examining Russia’s interference in the 2016 election, including whether the Trump campaign colluded with Moscow to tilt the race in his favour.

Bloomberg reported on Tuesday that Michael Dreeben, a seasoned prosecutor working with Mueller, is delving into past presidential pardons as the special counsel lays out his case. In particular, Dreeben is examining the possible limits on Trump’s pardon power.

The special counsel’s task is not easy, because there is no federal precedent governing the limits of the president’s pardon power. In light of that, Dreeben, a veteran Department of Justice attorney who has argued more than 100 cases before the Supreme Court, is likely digging into state-level cases with analogous elements that can be extrapolated as it relates to Trump’s executive authority.

Like the president, governors also have the authority to grant pardons, and former federal prosecutor Renato Mariotti told Business Insider that it’s possible Dreeben is looking into state-level case law going back to the country’s early years to find instances in which a court found a governor’s pardon to be problematic.

“Dreeben’s probably spending all day researching those cases, and he’s probably going to find some analogy that Mueller can use” in case Trump issues a preemptive pardon or one that stymies the investigation.

Mariotti added that the revelation was “really something” and is one of the biggest developments to come out of the investigation so far.

‘At some point, a court might have to step in’

Trump’s pardon power became a subject of interest after The Washington Postreported in July that the president asked his advisers if he could pardon aides, family members, and possibly himself as the Russia investigationramped up.

In addition to Trump himself, Mueller’s investigation also encompasses several of the president’s close associates, like former campaign chairman Paul Manafort; former national security adviser Michael Flynn; senior adviser and son-in-law Jared Kushner; Donald Trump Jr., and more.

Constitutionally, the president’s pardon powers are very broad as they relate to federal crimes, which Trump pointed out in July.

“While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us.FAKE NEWS,” Trump tweeted at the time.

Trump’s statements and subsequent actions indicate that “we have every reason to think that this president will not hesitate to use any means at his disposal to avoid scrutiny of himself, his family, and his inner circle,” said Claire Finkelstein, a professor at the University of Pennsylvania Law School.

To be sure, the president exercised that power in August, when he pardoned controversial Arizona sheriff Joe Arpaio, who was convicted of criminal contempt in July for violating the terms of a 2011 court order in a racial-profiling case. Arpaio was an early and ardent advocate for Trump on the campaign trail, and Trump told a crowd at an Arizona rally in August, shortly before granting the pardon, that Arpaio would be “just fine.”

“Imagine a circumstance where Trump pardons one of his associates in the Russia probe, that associate is then compelled to testify, but they refuse to do so, they’re then held in contempt, and Trump pardons them again,” Mariotti told Business Insider. “At some point, a court might have to step in because the president would be defeating the lawful function of our criminal justice system.”

Another key question experts are exploring is whether Trump can pardon someone if the pardon itself would fit into a pattern of obstruction-of-justice.

Finkelstein laid out a scenario in which one could draw a parallel to the circumstances surrounding FBI Director James Comey’s firing in May.

James ComeyDrew Angerer/Getty ImagesFormer FBI Director James Comey

The White House initially said Comey was dismissed because of his handling of the Clinton email investigation, but Trump later told NBC’s Lester Holt that “this Russia thing” had been a factor in his decision. Comey also told the Senate Intelligence Committee in June that before firing him, Trump had asked him to drop the Russia investigation, as well as the FBI inquiry into Flynn, who was forced to resign as national security adviser when it emerged that he had misled the vice president about his contacts with Russians during the transition period.

While the president has the power to fire the FBI director, he does not have the right to do so if his intent is to cover up an investigation into his potential misdeeds or those of his associates. The question of whether Trump had “corrupt intent” when he fired Comey is currently the basis of an obstruction-of-justice case Mueller is reportedly building against the president.

“One could make a parallel argument here and say that if the president’s motive in issuing a pardon is to avoid scrutiny of his or his associates’ actions, that constitutes an overstepping of his constitutional authority,” Finkelstein said.

There is, however, one key difference between the two scenarios. The question of Trump’s authority to grant pardons relates to the exercise of a constitutional power that is explicitly listed, while the other is an implicit power related to his right to govern as head of the executive branch.

‘There’s very little precedent for this’

Jon Michaels, a professor at the UCLA School of Law, said Tuesday that it’s becoming clear that by probing the open questions surrounding Trump’s pardon power, Mueller’s team “is being very strategic and are trying to preempt efforts that have the effect of insulating the administration from the investigations.”

The lengths to which the special counsel’s team is going in order to preempt the White House are unusual, said Jens David Ohlin, a vice dean at Cornell Law School and a criminal-law expert.

“These definitely are not normal or typical prosecution strategies,” he said. “But this is no usual investigation,” and “there’s very little precedent for this.”

Mariotti agreed, and pointed to his own career as a longtime federal prosecutor, adding that he’d never investigated someone he thought the president might pardon in the middle of the investigation.

“Think of how rare that is,” he said. “These are things we’ve never seen before. The pardon power is usually used years later, when someone’s already served time. So it’s unusual — very unusual — for a prosecutor to be considering these questions.”

It’s impossible to know how things will play out if Mueller faces off with Trump over his pardon powers, experts said, because of its unique and broad nature, and because it is explicitly written in the US Constitution.

“It would take a lot for a court to limit the power,” Mariotti said. “But this is the sort of crazy situation where it might happen.”

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