The Mueller investigation has been dominating the news headlines recently as it advances towards new developments. We sat down with Professor Maria Patterson, an attorney and Clinical Assistant Professor at NYU Stern to discuss the current updates of the investigation and its Constitutional ramifications.
HC NYU: A lot of people are comparing the Mueller investigation to the Watergate investigation–which, of course, had Constitutional implications in its own ruling. Do you see any similarities or differences between these two investigations?
Patterson: I think this has Constitutional implications too, in at least a couple of ways. One is that this question is, “Can the Special Counsel or Special Prosecutor indict a sitting President?” Another is, “Does a sitting President have the power to pardon his staff and campaign staff who are under investigation?” I vaguely recall that this was a side issue during Watergate. It’s a question of if the President is above the law.
In a way, this is almost worse than Watergate. In Watergate, you had a burglary. You had an actual break-in. There was a very clear criminal act, and where, frankly, the White House got in trouble was the cover-up. And it was dirty politics and it was subverting the Constitution and the system. This, in my mind, is almost worse because you have a foreign government trying to influence and subvert our elections and you have the possibility that one of our presidential candidates conspired with that or aided and abetted or whatever phrase you want to use.
I don’t know why Trump has become so enamored with this word “collusion,” because collusion as a legal matter is not a terribly meaningful term. Looking at the indictment that has been brought against the various Russian entities and persons, it looks to me that what Mueller is approaching this as is whether members of the administration–or rather, the campaign staff– had a part in encouraging that kind of action that’s been listed in that indictment. Because it is clear that it is a crime for foreign entities to interfere in our election process and it’s also a crime for foreign nationals to provide anything of value in connection to our elections. It’s also forbidden for US nationals to knowingly provide substantial assistance to that crime.
And so, collusion is this word that everyone has been throwing around. But at least, it looks to me, it is more “Did the Russians provide anything of value?” And certainly, releasing those emails is something of value. And then, “Did members of the campaign staff provide substantial assistance?”
There’s even some thought that speaking out, saying that the Russians should release the Democratic Committee emails could be substantial assistance. Now, that’s a little bit difficult because of free speech concerns. So, it strikes me, not surprisingly, that Mueller is doing a very direct and very precise sort of investigation.
HC NYU: Let’s say that the people listed in the indictment are found guilty. How would that impact the Constitutional power of a Special Counsel? And do you think it would impact the Constitutional powers of the President?
Patterson: I think it would. Assuming that Mueller has the power to bring an indictment – which clearly he does, for those below the office of the President – if he has enough evidence to bring an indictment against Trump. Now, I think there is some legal question there, having to do with separation of powers. But, even if he doesn’t have enough evidence to bring an indictment against Trump, the concern on where a Constitutional crisis could grow is if Trump tries to pardon former members of his campaign staff. The presidential power to pardon is pretty broad. But, it’s got to be limited by some sort of political system.
Now, unfortunately, this president does not seem to think that he is limited by anything, that the norms are just not there. I’ve always said that, to some degree, I think the solution here is a political solution. But, the Republicans in Congress, particularly those in the House, don’t see it. We’re not talking Howard Baker and Sam Ervin – of course they were on the Senate side. We’re talking Devin Nunes and Paul Ryan. On the Senate side, I think they’re undertaking a more serious investigation. But, ultimately I think the solution to this may be political.
Where I would see it coming to a head is if, at some point, Trump decides to pardon either pretrial or post-trial. And then I think the Constitutional crisis has come to a head. Then there has to be – unless the whole system has broken down – an impeachment. Because that is truly subverting justice. It is undermining the Constitution.
HC NYU: I know you mentioned a political solution, but what if there is not enough Congressmen for impeachment? What happens then?
Patterson: Then, I guess, unfortunately, nothing. I mean, if Trump has the power to pardon anyone but himself and if he does pardon them, then I don’t think there is any solution. I think we are a very different country than what I hoped we were. And that’s where, as I said before, it’ll really come to a head.
HC NYU: I know that there is also the mention of treason in the Constitution and what exactly constitutes as “treason.” As you said before, Trump has been talking a lot about collusion. I was wondering if the actions of the campaign staff in allegedly cooperating with Russian entities and nationals, could be framed as treason. Or do you think treason is too far and too strong of a reach?
Patterson: I think treason is just too much of a reach. You’d have to show aiding and abetting the enemy, you’d have to show intent. And then you’d ultimately have to convince a court that that was what’s going on. That’s a stretch, I think.
HC NYU: I see. Now that investigation is underway, we talked about if nothing came about. But, do you see any possibilities if some of the indictments were proven true?
Patterson: If there’s evidence, I think Donald Trump Jr. could end up in jail. I think Manafort could end up in jail. Whether they can find enough against the President, that is the question. If the process is allowed to play out an indictment on a sitting president, and if the sitting President cannot pardon himself, then The Donald could end up in jail. I think they’re probably going to have a hard time tracing anything to him, because I think he is clever enough to have kept things at arm’s length. But Donald Jr. met with the Russian nationals and I think he could end up in jail if the process plays out.
HC NYU: I’ve also heard that there’s a lot of money involved in this investigation. There’s a lot of money transfers, a lot of money laundering. I’m wondering how that plays into the investigation and how they determine if that was an influence or just part of a business transaction?
Patterson: Well, that’s going to be interesting. What I think is happening is that, while the investigation is to investigate efforts of interference in the 2016 presidential election, going at it from the perspective of money laundering or other financial crimes is very smart, because that’s how you show motive. And I think that is what Mueller and his team are doing. So Manafort, who was obviously having financial problems, if everything in the indictment was true, and I’m sure that it is, would have a motive. And so you lay your groundwork there and build on that. The financial crimes can be a hook to show motive. There’s an old saying, “Follow the money,” and that’s what I think you’ll see.