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DOJ probe into plot to bribe White House 'in exchange for a presidential pardon'

A court memo unsealed Tuesday night has revealed that the government is investigating an alleged scheme by two officials who sought to bribe the White House in exchange for a presidential pardon for an unidentified prisoner.

The information was contained in a federal judge's memorandum opinion released Tuesday on the subject of sealing information relating to people who have not been charged by a grand jury.

Although heavily-redacted, the memorandum mentions an alleged 'Bribery-for-pardon scheme' that went all the way to the White House.

It also describes a 'secret lobbying scheme' in which unidentified people acted as lobbyists to 'senior White House officials' without complying with registration requirements.

An unsealed court memorandum reveals an alleged 'bribery-for-pardon' scheme without disclosing who was involved

It also describes a 'related bribery conspiracy' where a person 'would offer a substantial political contribution in exchange for a presidential pardon or reprieve of sentence for [redacted].'

The memo also mentions people acting as 'intermediaries' for the proposed bribe. And it describes a person who surrendered to the Bureau of Prisons 'custody,' suggesting they were jailed at the time of the alleged bribe offer. 

Its release set off an immediate guessing game about who was the lawyer who had entree so senior White House officials as well a person who had made big campaign contributions and was connected to someone who was incarcerated.  

The information was disclosed as the government seeks the court's permission to access communications and gets around potential attorney-client privilege issues. 

It is contained in a memo by D.C. District Court Chief Judge Beryl Howell.

A hearing occurred on August 25, in the heat of the presidential election, although it was kept under seal as Americans prepared to go to the polls.

It notes that communications where a redacted person who participated or was a recipient in a bribery scheme 'is not protected by the attorney-client or any other privilege.'

The heavily-redacted memo mentions a 'Bribery-for-pardon' scheme

Pardons were put back on the radar last week as Trump pardoned former National Security Advisor Mike Flynn, whom Trump has long claimed was mistreated

President Donald Trump is said to have been asked by his personal attorney Rudy Giuliani for a pre-emptive pardon, the New York Times reported Tuesday

It also mentions a government filter team, who would be charged with reviewing materials and separating out privileged information. 

The entire background section in the 20-page case is redacted. 

The 'Discussion' portion of the memo points to a person 'who is an attorney' and says someone sought assistance 'as a personal favor' and asked an unidentified person 'to use his political connections.'

The pardon scheme was distinct from the person's role as an 'attorney-advocate' for another person or cause.

The attorney client privilege 'does note protect communications disclosed to third parties,' the memo notes. 

It is the president who has the sole power of pardons for federal offenses, although there is an official pardon office set up under the Justice Department. 

The news broke on a day when the New York Times reported Trump had been asked by his personal attorney Rudy Giuliani for a pre-emptive pardon.

A footnote notes that emails don't show any 'direct payment' to [redacted] by [redacted]. 

It said instead that a person 'expected' [redacted] to assist in obtaining clemency for [redacted] due to [redacted]'s past substantial campaign contributions. 

The government wanted the information sealed because 'individuals and conduct' have not been charged. 

THE POWER OF THE PARDON...

ARE THERE LIMITS ON TRUMP'S PARDON POWER?

The pardon power, which comes from the U.S. Constitution, is one of the broadest available to a president. The nation's founders saw the pardon power as a way to show mercy and serve the public good.

While pardons are typically given to people who have been prosecuted, pardons can cover conduct that has not yet resulted in legal proceedings.

A pardon is not reviewable by other branches of government and the president does not have to give a reason for issuing one.

A pardon wipes out a criminal conviction. A different form of executive clemency, known as a commutation, leaves the conviction intact but wipes out the punishment.

Trump's pardon of his former national security adviser General Michael Flynn set off a flurry of speculations of who could be next

But the pardon power is not absolute. Crucially, a pardon only applies to federal crimes. That means pardons would not, for example, protect Trump associates from the criminal investigation being conducted by Manhattan District Attorney Cyrus Vance, a state prosecutor.

Vance's probe, which began more than two years ago, stemmed from hush money payments that the president´s former lawyer and fixer Michael Cohen paid before the 2016 election to two women - an adult-film star and a former Playboy model - who said they had sexual encounters with Trump. Trump has denied the encounters and has said the probe is politically motivated.

The district attorney has suggested in court filings that the probe is now broader and could focus on potential bank, tax and insurance fraud, as well as falsification of business records. It is unclear what stage the investigation is at. No one has been charged with criminal wrongdoing.

COULD TRUMP PARDON HIS FAMILY MEMBERS?

Yes. It is legal for Trump to pardon his inner circle, including members of his family.

There is speculation he could pardon Charles Kushner, his son-in-law Jared Kushner's father, who was prosecuted more than a decade ago by then-US Attorney Chris Christie. 

There is speculation Trump could pardon Charles Kushner, his son-in-law Jared Kushner's father, above Josh Kushner, Charles Kushner and Jared Kushner at a party in New York in 2014

It's unclear if Trump would pardon any of his adult children - Don Jr. and Eric took over the reins of the Trump Organization after their father was elected president - and what that would imply.

Last month, Eric Trump sat for a deposition as part of an investigation from New York Attorney General Letitia James into whether the Trump Organization inflated the value of Trump's assets. 

But President Trump can't issue pardons for state investigations - only federal. There is speculation the Justice Department - under President Joe Biden - could go after Trump and his family over their business dealings and their taxes.

Biden told NBC's Lester Holt he would not push his own Justice Department to go after Trump, with some Democrats calling for probes. 

'I will not do what this president does and use the Justice Department as my vehicle to insist that something happen,' he said.

In 2001, former President Bill Clinton pardoned his own brother, Roger, who was convicted for cocaine possession in Arkansas.

Clinton pardoned about 450 people, including a Democratic Party donor, Marc Rich, who fled the country because of tax evasion charges.

CAN TRUMP PARDON HIMSELF?

There is not a definitive answer to this question. No president has tried it before, so the courts have not weighed in.

'When people ask me if a president can pardon himself, my answer is always, 'Well, he can try,'' said Brian Kalt, a constitutional law professor at Michigan State University. 'The Constitution does not provide a clear answer on this.'

Many legal experts have said that a self-pardon would be unconstitutional because it violates the basic principle that nobody should be the judge in his or her own case. Kalt said that, in his view, was the stronger argument.

President Trump retweeted this missive from Rep. Matt Gaetz on presidential pardons

Trump could try to pardon himself preemptively to cover the possibility of prosecution after he leaves office.

In that case, the pardon's legitimacy might never be tested in court, said Kalt. For a court to rule on the pardon's validity, a federal prosecutor would have to charge Trump with a crime and then Trump would have to raise the pardon as a defense, he said.

COULD THE VICE PRESIDENT TAKE OVER AND PARDON TRUMP?

In a 1974 memorandum, a Justice Department lawyer said President Richard Nixon could not pardon himself but that another option was constitutional: that he temporarily step down, receive a pardon from his vice president and then regain power.

In order to do that, Nixon would have had to invoke the 25th Amendment of the U.S. Constitution, which allows an incapacitated president to temporarily step down.

Nixon ultimately resigned in the face of the Watergate scandal and almost certain impeachment and removal from office. His successor, Gerald Ford, later pardoned Nixon for any federal crimes he committed or might have committed while in office.

It is not clear what Vice President Mike Pence would have to gain from agreeing to pardon Trump, said Corey Brettschneider, a professor of political science at Brown University.

'I don't think Pence would want that to define his legacy,' Brettschneider said.

Before his pardon of Flynn, Trump had granted 28 pardons, which wipe out convictions, and 16 commutations, which reduce prison sentences.

Many of those who benefited are those associated with Trump, including Roger Stone, who 40 month prison sentence was commuted by the president; conservative commentator Dinesh D’Souza, who was pardoned by Trump after being convicted of an illegal campaign contribution in a Senate race; and Wall Street executive Michael Milken, who was pardoned by Trump after being convicted of violating U.S. securities laws. Treasury Secretary Steven Mnuchin pushed for Milken’s pardon.

Trump also commuted the sentence of former Illinois Governor Rod Blagojevich, who was found guilty of public corruption after he attempted to solicit bribes to occupy the U.S. Senate seat vacated by then president-elect Barack Obama; and Scooter Libby, the former aide to Vice President Dick Cheney who was caught up in the Valerie Plame scandal.

Any further pardons would likely draw the scrutiny of Democrats, who criticized Trump for his pardon of Flynn. 

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