One of the incidental benefits of having really smart children is that they are a go-to source of wisdom on many subjects. There has been a good deal of talk about the possibility that Trump would seek to frustrate the Mueller investigation by pardoning everyone in sight as soon as Mueller got close. TV commentators oponed that should Trump do this, the recipients of the pardons would then have forfeited their 5th Amendment rights and could be compelled to testify before Congressional committees. This led me to ask the following question of my son, Tobias Barrington Wolff, who is, among other things, one of the leading experts of his generation in the legal field of Civil Procedure:
“Suppose Trump pardons, say, Manafort, for whatever, and Congress compels his testimony, denying him the privilege of taking the 5th because he has been pardoned. Suppose Manafort refuses to answer and is charged with Contempt of Congress. Does Trump have the power to pardon him for that as well?” Back came the following reply:
“Yes, that lies within the powers of the presidency, but with some caveats. First (and stating the obvious) that would presumably put rocket fuel under the calls for impeachment. The Supreme Court has held explicitly that the pardon power extends to criminal contempt proceedings in federal court. The same ruling would apply to contempt of Congress. In that ruling (Ex Parte Grossman, from 1925), the Court also indicated that an abusive use of the pardon power in such cases, if such a thing were to happen, would be remediable through impeachment:
"If it be said that the President by successive pardons of constantly recurring contempts in particular litigation might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this if to be imagined at all would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President."
It is entirely possible that the unstable madman in the Oval Office has told Manafort that he should stick by him no matter what and he will engage in extravagant uses of the pardon power, but I think it would result in his removal by impeachment very quickly. In addition, the pardon power can only nullify criminal liability. In that same ruling of Ex Parte Grossman, the Court made clear that the pardon power has no impact on civil contempt proceedings. This is a distinction that is not widely understood. When a person refuses to testify and gets put in jail until he is willing to comply with the court's order (like in the high-profile cases involving reporters), that is a civil contempt proceeding, not criminal contempt, even though jail is involved. I address this issue in my casebook, as it happens. Here is the section where I lay out the basics of the doctrine:
Contempt sanctions can be either "civil" or "criminal" in nature, though this terminology can be somewhat counterintuitive. The distinction between civil and criminal contempt does not arise from the nature of the underlying proceeding — a civil lawsuit can give rise to either civil or criminal contempt. Nor does it depend primarily on the nature of the actions undertaken by the individual who violates the injunction, nor even on the use of imprisonment as a sanction, which courts can employ in a limited fashion in a civil as well as a criminal contempt proceeding. Rather, the distinction between "civil" and "criminal" contempt refers to the goal that the court seeks to accomplish by imposing the sanction.
Civil contempt sanctions are remedial in nature and aim to secure compliance with the court's order. When a court imposes fines in a civil contempt proceeding, it does so in order to compensate the injured party for the harm it has suffered as a result of the violator's actions, which may include attorneys' fees and other costs associated with enforcing the order. Courts may also impose a prospective schedule of fines to secure compliance and deter future violations, providing, for example, that a party will be fined some substantial sum of money for every day that it violates the injunction going forward. Courts can even imprison a party who refuses to abide by a court's order. One controversial example of this form of civil contempt can occur when a reporter refuses to comply with a discovery order or subpoena requiring her to reveal her journalistic sources or otherwise disclose information she has promised to keep confidential. Jail time is a proper part of a civil contempt sanction only when it aims to secure compliance with the court's order. Thus, a reporter who is jailed in a civil contempt proceeding retains the ability to release herself at any time by complying with the order of the court, and her imprisonment cannot last longer than the underlying proceeding in any event, since the remedial purpose of her imprisonment ceases once the order or injunction is no longer active.
Criminal contempt sanctions, in contrast, aim to punish parties for flouting the authority of the court. The basic tools of enforcement available to the court in a criminal contempt proceeding — fine and imprisonment — are the same as they would be in a civil proceeding, but the sanctions that the court imposes in a criminal proceeding are not limited to strictly remedial purposes. Thus, a court can impose a period of incarceration in criminal contempt proceedings that will last well beyond the termination of the underlying action, and the target of the criminal sanction cannot win her release by agreeing to comply with the court's order in the future. Similarly, when a court imposes a fine as a criminal contempt sanction, the defendant pays the fine to the court as punishment for his actions, rather than to his adversary as compensation.
So, even if he is willing to abuse the powers of his office without restraint, there are some limitations on his ability to subvert the rule of law prospectively — providing that Congress is prepared to enforce those limits. And Manafort, who has real lawyers (unlike the grifter), is probably aware of those limitations.
I think you can take that one to the bank.