Friday was a day of memos. Prosecutors from the Special Counsel’s Office and my old office, SDNY, filed two separate sentencing briefs for Michael Cohen, former personal attorney to President Trump. Mueller’s office also submitted a heavily redacted memo summarizing why Paul Manafort was in breach of his plea deal due to his numerous lies.
The sentencing memo for Cohen, filed by SDNY, received the most attention, and for good reason: the Justice Department implicated the President in committing two felonies.
During his guilty plea proceeding in August, Cohen had voluntarily told the court that Trump instructed him to pay off two women to prevent them from going public with their alleged extramarital affairs with Trump. SDNY prosecutors have now adopted this allegation, writing that Cohen acted “in coordination with and at the direction of” Donald Trump when Cohen made the illegal payments.
It is hard to imagine that the prosecutors would flatly state that Cohen acted at the President’s direction without having solid corroborating evidence supporting Cohen’s claim and without the approval of Acting U.S. Attorney Robert Khuzami.
As a thought experiment, I imagined what I would do if AUSAs walked into my office with that explicit language in the memo. The world is watching. The stakes are high. It is no ordinary thing for the Justice Department to accuse its own president of crimes. It creates expectations. I know I’d have a series of questions for the assigned AUSAs, and that every single word in that memo would be thought through and reviewed at many levels, including by the Criminal Division Chief, the Deputy U.S. Attorney, and myself.
I am confident that Khuzami, whom I’ve known for many years as a friend and a colleague, would approach the decision the same way – thoughtfully, cautiously, and fairly. Anne Milgram and I discuss this at length in this week’s CAFE Insider podcast. It is the most significant and ominous passage in any of the court submissions filed last week.
Before I sign off, I must address a silly argument I heard on Twitter. Gregg Jarrett, a legal analyst for Fox News, tweeted:
As historian Kevin Kruse commented, “I bet they know it’s actually the ‘Federal Election Campaign Act.’”
I took some umbrage at this ignorant insult. The SDNY “kids” are among our best hopes for survival of the rule of law. We should be thanking them for their public service, not attacking them for doing their jobs. They are brilliant, well-trained, and highly ethical. They are the cream of the crop. Their youth gives them energy, idealism, and the resolve to do the right thing.
In my experience, the men and women of SDNY do their job without fear or favor, and I think we should all aspire to do our jobs and live our lives with that mindset.
LISTEN TO RACHEL MADDOW’S PODCAST, “BAG MAN”
“Bag Man” is Rachel Maddow’s new seven-episode podcast series that tells the story of Richard Nixon’s Vice President Spiro Agnew and the small team of young federal prosecutors who uncovered the criminal schemes he was running out of the White House.
The podcast resonates for many reasons. It takes us back to the Watergate-era fraught with political corruption and secrecy. Agnew’s public attacks on the prosecutors and journalists are reminiscent of current tensions between the White House, the Justice Department, and the media. Was justice ultimately served 45 years ago? Rachel’s podcast highlights the critical role played by a bunch of “kids” in upholding the rule of law and the challenges they faced in indicting a popular newly re-elected Vice President.
READ GERALD FORD’S PARDON PROCLAMATION OF RICHARD NIXON
When is it appropriate for the President to pardon someone? Many assume that pardons can be granted only to someone who has been convicted of a crime. Pardon power is not limited to concluded cases. In fact, the most famous pardon of all time was granted to someone who was never charged with any crime. This, of course, was President Gerald Ford’s pardon of President Nixon. In his pardon proclamation, Ford wrote:
“It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.”
It’s also worth noting the breadth of President Ford’s pardon language:
“I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”
As questions swirl around the possibility of President Trump granting a pardon to Paul Manafort or any number of his associates, we should remember that pardons can sweep broadly and prospectively.
How did the Founders think about the pardon power? They considered many relevant issues, including what to do when the pardoned individual commits crimes resulting in a President’s impeachment or whose testimony implicates the President. For an analysis of the constitutional basis of the pardon power, read D.W. Buffa’s essay, “The Pardon Power and Original Intent,” Brookings, July 25, 2018.
SOMEONE TO FOLLOW
Kevin Kruse is a historian and a Princeton professor. He specializes in the political, social, and urban/suburban history of 20th century America, with a particular focus on conflicts over race, rights and religion, and the making of modern conservatism. Follow him, @KevinMKruse, for commentary that often places recent news in a historical context.
THIS WEEK ON THE CAFE INSIDER PODCAST
Preet and Anne break down the Cohen, Manafort, and Flynn memos, Comey’s testimony before the House Judiciary and Oversight and Government Reform committees, and the expected nomination of Bill Barr for Attorney General. If you haven’t listened, listen now to “Individual-1,” which dropped on Monday, 12/10.
LISTEN TO PREET ON THE LAWFARE PODCAST
Preet discusses his work with the National Task Force on Rule of Law & Democracy and comments on recent news in an interview recorded on 12/6 for the Lawfare podcast with Ben Wittes.
PRE-ORDER PREET’S BOOK “DOING JUSTICE”
The day is finally here. You can now order Preet’s book, “Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law.” It ships March 19. It is also available as an audiobook.
That’s it for this week. We hope you’re enjoying CAFE Insider. Please send us your suggestions and questions at Insider@cafe.com.
– Preet and the Cafe Team