Bradley P. Moss is a partner at the Washington, D.C. law office of Mark S. Zaid, P.C., where he has represented countless individuals (including whistleblowers) serving within the intelligence community, and is also the deputy executive director of the James Madison Project, through which he has represented media outlets such as Politico, Gawker, Daily Caller, and the Daily Beast in FOIA lawsuits against the Bush, Obama and Trump administrations.

The news that President Trump’s legal team is already evaluating the scope of his pardon authority, as well as steps that can be taken to push back on the breadth of Special Counsel Robert Mueller’s investigation, rippled across social media Thursday night.

Of particular interest was that Mueller’s potential inquiry into the president’s financial dealings (and his tax returns) has apparently so incensed President Trump and resulted in a warning that the former FBI director should not cross that proverbial “red line.”


President Trump, of course, has a long history of being a more-than-capable litigant in his pre-presidential life, and he certainly is not a newcomer to the legal game. His battles with Eric Schneiderman, for instance, were legendary—at one point, Trump even filed a complaint about the New York attorney general with the state’s ethics commission. In 2010, he used civil litigation to effectively persuade Deutsche Bank (and other lenders) to grant him an extension on a $640 million construction loan.

As president of the United States, however, Trump’s past litigation experience—and his own self-assured view of what he learned from those experiences—has resulted in a miscalculation of potentially serious political consequences. President Trump has underestimated Mueller while simultaneously overestimating his own ability to restrict the level of scrutiny that can be applied to a president.

Lest there be any confusion, there are no restrictions on the president’s authority to grant pardons beyond the limitations set forth in the text of Article II, Section 2, Clause 1 of the Constitution. If the president wishes to pre-emptively pardon his campaign staff and family members for federal crimes they might have committed, absent invocation of the 25th Amendment or impeachment of the president there simply isn’t anything anyone can do to stop him from issuing pardons galore. Such is the privilege of being elected to sit in the Oval Office.

The president’s miscalculation is not about his pardon authority. Rather, it is about the extent to which the legal machinations that worked for him in private, civil litigation against ordinary individuals (or even various state attorneys general) can be applied to a wide-ranging criminal and counterintelligence investigation run by Mueller and what appears to be an All-Star cast of lawyers and investigators. The president can’t try and drag out things and hope Mueller’s investigation runs out of money; the funding is derived from a permanent congressional appropriation account. Nor can the president realistically hope that he will be able to undercut the investigation with “conflicts of interest” or “ethics” complaints. Mueller has already been vetted by the Justice Department’s ethics officers, and the petty complaints raised about the personal political donations made by some on his team reek of desperation.

The president is used to overpowering and overwhelming his legal opponents, but Mueller – who ran the FBI for 12 years and oversaw the transformation of that agency in the aftermath of the tragedy of 9/11 – is unlikely to be intimidated. Mueller’s team appears to be methodically examining the Russian government’s efforts to meddle in the 2016 election, and it borders on axiomatic that his team will uncover whether the Trump campaign colluded with the Kremlin in any way (a question that, of course, remains unresolved).

Mueller’s investigation will go where the facts lead it, but the president is doing himself no favors by providing a fresh set of bread crumbs on a regular basis. His Twitter rants and stream-of-consciousness remarks in media interviews are easy fodder for the special counsel’s team, and provide it with an unusual degree of access to the president’s state of mind and motivations. It may be cathartic for Trump to express these thoughts publicly, and it might rouse his political base, but it is doing nothing to put out the three-alarm political fires that are routinely emerging in the wake of new reports about previously undisclosed contacts with Russian operatives or inquiries into his financial dealings.

If the president truly wishes to survive the mess in which he finds himself, he needs to come to grips with the simple truth that everything he learned before Jan. 20, 2017, is irrelevant. There is no one who can just make this situation “go away.” There is no deal to be made, no financial settlement that can resolve the matter. The investigation will find what it finds, and it very well might ensnare several close associates of the president (and potentially even a family member) along the way.

If President Trump tries to bully his way into Mueller’s lane, however, he could find himself joining Richard Nixon in a two-man “members only” club of presidents forced out of office before the end of their terms. If he hopes to avoid this fate, one smart move would be to stop talking, do his job and let Mueller do his.