Paul Manafort was just convicted. Here’s what you need to know about the president’s pardon power.
President Donald Trump’s former campaign chair, Paul Manafort, was sentenced on Wednesday to roughly six years in prison on charges of conspiracy against the United States and conspiracy to obstruct justice.
The verdict comes nearly a week after Manafort was sentenced to 47 months in prison on tax and bank fraud charges, which, as my Vox colleague Andrew Prokop noted, was a far lighter sentence than many anticipated.
Almost immediately after Manafort was sentenced on Wednesday, he was indicted by the Manhattan District Attorney’s Office on 16 counts related to mortgage fraud and conspiracy, according to various reports. The timing may be odd, but some believe the reason for the state charges is clear enough: to ensure that Manafort can’t be protected by a presidential pardon, which applies only to federal crimes.
Back in August 2017, just after Trump pardoned Arizona Sheriff Joe Arpaio, I reached out to 10 legal experts and asked them if the Arpaio decision was a signal of how Trump might seek to undercut the Russia investigation.
The question then was the same as it is now: Does Trump have the constitutional authority to pardon whomever he wants for whatever reason he wants, even if that includes undermining an investigation into his own campaign?
Their full responses, edited for clarity, are below.
Manafort may expect a pardon, given the president’s past statements and shameless use of the pardon power in the Arpaio case. And the president may use that power to keep Manafort and other witnesses from cooperating and to ensure continuing impunity for his family members and associates.
But there are some constraints that suggest the president should proceed cautiously. Many offenses — including some of the financial crimes included in the Manafort indictment — are also crimes under state law. The president can pardon only for federal offenses, and defendants counting on a blanket pardon may find that it does not cover all potential prosecutions.
If the president issues a pardon in order to influence a witness and impede the investigation, that would also be a further act of obstruction. Although he has the legal authority to pardon, he cannot use that power to commit another crime. A defendant in, say, a fraud case also has the “power” to shred documents that belong to her, but doing so with the intent to shield those documents from a pending investigation would be criminal obstruction.
If the president pardons anyone involved in the Russian investigation, it may prove to be one of the stupidest things he has yet done. If the president were to pardon [Jared] Kushner or Manafort or [Michael] Flynn, presumably that pardon would extend to the Russia investigation because that is what concerns Trump. If — and this is a big if — the president is shown to have pardoned them to avoid his own personal exposure in the Russia investigation, that in and of itself could constitute obstruction of justice.
It’s generally thought that accepting a pardon constitutes an admission of guilt with respect to the offense for which the person was convicted. That prevents the government from prosecuting the person for that offense. But it doesn’t operate as a general grant of immunity for other offenses, so the person who is pardoned still can assert his or her right against self-incrimination with respect to those offenses.
The case of a “preemptive” pardon — that is, one issued before conviction — is different. The scope of the person’s Fifth Amendment rights would depend on the scope of the pardon — if for only specific offenses, the person would retain Fifth Amendment rights for other offenses.
