How Trump’s Dinesh D’Souza Pardon Should Backfire

My Slate piece on Friday:

If it pushes New York to change its double jeopardy laws, it could be a big defeat for the president.

President Donald Trump’s pardon of Dinesh D’Souza on Thursday sparked speculation that it was a signal to his associates not to cooperate with Robert Mueller’s Russia probe. Roger Stone, Trump’s own informal adviser and a potential defendant in the Mueller investigation, seemed to think as much: “The special counsel has awesome powers, as you know, but the president has even more awesome powers,” Stone told the Washington Post.

If that is the strategy, it may be backfiring legally and politically.

First, even if it did send a signal to Michael Cohen, Paul Manafort, and other potential confederates, it sent that same obvious signal to everyone else. If you’re worried about being charged with obstruction of justice, false statements, and bribery, seeking out people convicted of obstruction, false statements, and bribery for pardons might make you feel better, but it is a terrible idea in the long run…”

Second: it helps prove that these pardons are a self-serving strategy, which could lead to these and future pardons being invalidated as “unfaithful” execution of the Constitution. (It’s an uphill battle in terms of constitutional interpretation, but Trump helped make the evidentiary argument a bit easier now).

And third, it renewed a push to change New York’s pardon loophole in its double jeopardy law.

Read more here.

 

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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