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William Barr confirmation hearing: If Trump pardons for silence, could be crime

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William Barr, President Donald Trump’s nominee for attorney general, said during his confirmation hearing Tuesday that it would be illegal for the president to pardon someone in exchange for that person’s silence.

Vermont Sen. Patrick Leahy asked Barr if a president can “offer a pardon in exchange for the witness’s promise not to incriminate the president.”

“No, that would be a crime,” Barr replied.

Trump often touts his pardon power and once said he has the “complete power to pardon” anyone — including himself — for any reason.

Trump’s relationship with Paul Manafort, his former campaign chairman, has also invited scrutiny from legal scholars who have speculated that Manafort may be angling for a pardon in exchange for protecting Trump from Mueller’s scrutiny.

The New York Times has also reported that John Dowd, Trump’s former defense lawyer, floated pardons to Manafort and former national security adviser Michael Flynn in the summer of 2017, when the Russia investigation began ramping up in earnest.

Manafort pleaded guilty in September to conspiracy and obstruction charges and struck a plea deal with prosecutors.

The Times reported that one of Manafort’s lawyers, Kevin Downing, had repeatedly briefed Trump’s team on what Mueller was asking Manafort about. And Trump’s lead defense lawyer, Rudy Giuliani, told The Times Downing had given him specifics on what prosecutors wanted to know.

There is no technical or legal guideline that bars an attorney for one target of a criminal investigation from communicating with lawyers representing another target, whether or not a joint defense agreement exists.

But such communications could severely undermine, or even tank, a cooperation agreement if lawyers for one side revealed too much information to lawyers on the other side.

Manafort’s guilty plea came after a lengthy court battle, during which his lawyers put up an aggressive defense against Mueller by challenging his authority and arguing that he had overstepped the scope of his mandate when he charged Manafort with crimes unrelated to Russian collusion.

Legal experts said at the time that Manafort’s refusal to flip could have been part of an effort to angle for a presidential pardon. His lawyers’ unusual decision to stay in touch with Trump’s team, even he pleaded guilty, may point to the same strategy.

“It does seem that Manafort is trying to keep all his options open for as long as possible,” Jeffrey Cramer, a longtime former federal prosecutor who spent 12 years at the Justice Department, told INSIDER earlier. “He is a career fraudster so he is consistent, if nothing else. He was easily convicted and then decided to cooperate rather than go through another trial and more prison time being added to his sentence.”

“But a pardon is still the holy grail for Manafort,” he added.

Trump, for his part, often tweets his support of Manafort and has falsely accused Mueller of coercing people to “flip and lie” to prosecutors.

U.S. President George H. Bush, right, and William Barr wave after Barr was sworn in as the new Attorney General of the United States, Tuesday, Nov. 26, 1991 at a Justice Department ceremony in Washington.
Scott Applewhite/AP

Barr on Tuesday was questioned by Leahy on the presidential pardon power in relation to his role in encouraging former President George H.W. Bush to pardon Reagan administration officials involved in the Iran-Contra scandal.

The infamous Iran-Contra affair involved the illegal sale of arms to Iran and anti-government guerrillas in Nicaragua.

As attorney general in the early 1990s, Barr urged Bush to pardon a number of key figures involved in the scandal who were facing charges, including former Defense Secretary Caspar W. Weinberger.

Discussing the matter in 2001 at an oral history interview with the University of Virginia, Barr said he’d asked his staff and “seasoned professionals” at the Justice Department “to look into the indictment that was brought, and also some of the other people I felt had been unjustly treated and whether they felt that they would have been treated this way under standard Department guidelines.”

Read more: Meet William Barr: What you need to know about the possible once and future attorney general

Barr said that based on the discussions that took place, he “went over and told the president I thought he should not only pardon Caspar Weinberger, but while he was at it, he should pardon about five others.”

Bush ultimately went against Congress to pardon Weinberger, who’d been indicted for perjury and obstruction of justice, mere days before the case went to trial. Historians cite this move as among the most controversial examples of a president exercising the executive pardon power.

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