Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) announced the Committee has served a subpoena on the Department of Homeland Security (DHS) for documents relating to the President’s multiple alleged attempts to offer pardons to officials carrying out his illegal and cruel immigration policies. Specifically, the subpoena requires the production of documents related to March 21, 2019, and April 5, 2019 meetings between the President and DHS Officials where pardons were reportedly discussed. The subpoena also requires documents and communications referring to presidential pardons for potential violations of federal law relating to the enforcement of U.S. immigration laws or the construction of a barrier along the U.S.-Mexico border. This subpoena also represents another step in the Committee’s investigation into obstruction of justice and abuses of power by the President as it looks to determine whether to recommend articles of impeachment.
Chairman Nadler released the following statement:
“The dangling of pardons by the President to encourage government officials to violate federal law would constitute another reported example of the President’s disregard for the rule of law. Such a troubling pattern of obstruction of justice would represent a continuation of the misconduct identified in the Mueller Report. The Framers did not envision the use of the presidential pardon power to encourage criminal acts at the President’s direction. As the Committee continues its investigation into whether to recommend articles of impeachment, it is imperative that we are able to obtain information about ongoing presidential misconduct and abuses of power.
“In the coming months the Committee intends to hold hearings and conduct additional oversight related to the issue of pardons as we move forward with our investigation into obstruction of justice, public corruption, and abuses of power by the President. This information sought today and the hearings that follow will help the Committee determine whether to recommend articles of impeachment or other Article 1 remedies against the President.”
According to multiple reports, during a visit to the border at Calexico, California and after having been advised that closing the border would be illegal, President Trump allegedly said he would pardon Acting Secretary McAleenan if he “ever went to jail for denying US entry to migrants.” These same reports also state that President Trump personally directed DHS personnel to not let migrants into to the country, stating “tell them we don’t have the capacity … If judges give you trouble, say, ‘Sorry, judge, I can’t do it. We don’t have the room.’”
Closing the Southern border to migrants would violate section 235 of the Immigration and Nationality Act as well as the United States’ obligations under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. Ordering government personnel to violate the law is arguably a violation of the Constitution’s Take Care clause, while offering a pardon to encourage an officer of the U.S. government to undertake an illegal action appears on its face to be an unconstitutional abuse of power.
According to reports just last week, “When aides have suggested that some orders [related to constructing the President’s barrier along the Southern border] are illegal or unworkable, Trump has suggested he would pardon the officials if they would just go ahead, aides said. He has waved off worries about contracting procedures and the use of eminent domain, saying ‘take the land,’ according to officials who attended the meetings.”
Special Counsel Mueller’s Report identified multiple instances where the President “in both public and private to encourage witnesses not to cooperate with the investigation.” (Vol. II, p. 7). This included the President—both publicly, privately, and through is attorneys—suggesting the possibility of pardons to his former Campaign Manager Paul Manafort and his former personal attorney Michael Cohen in the hopes of discouraging both men from cooperating with law enforcement or the Special Counsel’s office.
The Committee first wrote to the Department about alleged pardon dangling on April 16, 2019 and followed up with a second letter on May 29, 2019. After the Department refused to provide any additional information in subsequent conversations, the Committee authorized on July 11, 2019 the issuance of subpoenas related to “discussions about or offers of presidential pardons to Department of Homeland Security officials or employees.”