Mark Donovan* It’s a big deal if it’s correct, but according to reports from CNN, Cohen dangled the prospect of a pardon in ‘evidence’ that may actually be supported.
Cohen is not known as being the most reliable of witnesses, given his self-declared ability to tell lies, but on this occasion it appears that an attorney who worked with Rudy Giuliani had emailed Cohen in April telling him he could “sleep well tonight” because of his “friends in high places” (read: ‘Trump’).
Copies of the emails have reportedly already been requested by federal prosecutors.
Cohen has, of course, already testified that President Trump had asked him to lie to Congress about Trump’s business involvements in Russia during the presidential election campaign.
If Cohen really does have the emails that CNN have reported, then the question becomes whether a legitimate presidential prerogative (namely, to grant a pardon to a convicted criminal) can be used to pardon someone who is committing a crime on the President’s behalf.
That is a matter that will involve some heated legal argument, to say the least.
But less subject to argument or debate is the question of whether such a pardon can be used to entice a party to commit a crime with the prospect of being pardoned.
As the NYMag reported, Alex Whiting explained, the argument for why a president can pardon his own subordinates is that it’s a public act, and the voters can examine the facts and look at whether the president acted corruptly in issuing the pardon. “As long as it remained secret,” he notes, “it could be done without incurring any of the political downstream consequences that come with actually pardoning someone.”
Even Attorney General William Barr agreed in his confirmation hearings that dangling pardons could be obstruction of justice. Barr had stoutly defended Trump from charges of obstructing justice in an earlier memo.
“Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?” he was asked by Senator Pat Leahy. “No. That would be a crime,” Barr replied.
The weakness in the evidence with the present case of the ‘dangled pardon’ is that the communication went through Costello, not Trump. Costello was representing Giuliani, who in turn was representing the president.
Costello told the Daily Beast his message to Cohen was not a reference to getting a pardon but a reference to a Garth Brooks song:
“To repeat myself, Michael Cohen and his counsel’s interpretation of events is utter nonsense,” Costello said. “This statement: ‘Sleep Well tonight, you have friends in high places’ was a tongue-in-cheek reference to a Garth Brooks song, to a client whose state of mind was highly disturbed and had suggested to us that he was suicidal. We were simply trying to be decent human beings. There is no hidden message.”
Really? Cohen actually did have friends in high places. The context of the events and the emails are a cause of more than merely some popular idiom.
The New York Times has reported that after the “friends in high places line,” Costello wrote, “Some very positive comments about you from the White House. Rudy noted how that followed my chat with him last night.” That doesn’t sound like counseling a depressed friend. It sounds a lot like floating a pardon in return for keeping your mouth shut.
And that is very much redolent of ‘dangling a pardon’.
As the President is fond of saying: “We’ll have to see.”
*Mark Donovan is a political and current affairs freelance writer.