Why the Trump Russia investigation could take a new turn

  • Trump has bragged about his "complete power" to pardon and used it in a controversial move to pardon Sheriff Joe Arpaio.
  • The president's power to pardon is indeed vast, but it does not extend to state and local law violations.
  • The Mueller investigation's decision to team up with New York State Attorney General Eric Schneiderman to investigate Trump's former campaign chairman Paul Manafort could make life a lot more difficult for the president and his associates.

In one of his most prominent breaks with political convention, President Donald Trump went on twitter in July mentioning his "complete power" to pardon, which many observers understood as an early claim that he can pardon himself and potentially anyone else who faces legal jeopardy from the current investigation into Russian collusion by special counsel Robert Mueller.

The result was a debate as to whether he actually has the power to self-pardon. A number of respected legal scholars have argued that his pardon power is vast and could include a self-pardon. But Trump's pardon threats may have created a bigger problem for himself and his team. The pardon power does have limits – it doesn't affect state and local law violations. And if Trump and the Republicans think that Mueller or Congressional investigation committees are dangerous, he should be prepared for a group of potentially even more ferocious actors on the political stage – the states' Attorneys General and local district attorneys.

These legal officers are able to look at which state laws the Trump campaign may have violated during the campaign. Thanks to the federal structure of government, a good portion of the federal government's laws are duplicated on the state level. In other words, you violate a federal law, there is a good chance that you are also violating a similar state law. Since the Trump campaign was a 50 state organization, and Trump himself has homes and significant business interests in New York, New Jersey and Florida, he may quickly find himself under multiple state investigations.

Being able to play a major role in an investigation of a sitting U.S. president – especially one as controversial and disliked as Trump – could be a political goldmine for a Democratic attorney general. Mueller has already brought New York's ambitious AG Eric Schneiderman into the investigation of the finances of Trump's former campaign chairman Paul Manafort, possibly in part to immunize against a presidential pardon.

"Mueller has already brought New York's ambitious AG Eric Schneiderman into the investigation of the finances of former Trump Campaign Chairman Paul Manafort, possibly in part to immunize against a presidential pardon."

Attorneys general are well known as a group of very politically ambitious officials. Nine senators formerly served as attorney general, as did seven sitting governors, two current cabinet members and one former president, Bill Clinton. Numerous other officials have served as district attorneys before stepping up to higher office.

The crusading lawyer has been a popular political figure for centuries, and presidents dating back to John Adams gained fame in the courtroom before winning office. The attorneys general do not actually deal with headline grabbing violent prosecution – their real role is acting as the state's civil attorney – but in recent years they have been sure to get involved whenever they can against industries.

The AGs took the lead against the tobacco industry and in New York, Elliot Spitzer grabbed the title of the "Sheriff of Wall Street" before his ill-fated turn as Governor. On the Republican side of the aisle, AGs led the legal fight against Obamacare and against federal environmental regulations. Former Oklahoma Attorney General Scott Pruitt was so active in this regard that Trump appointed him the EPA Administrator.

For the current group of attorneys general, there is good reason to think that a hard-hitting investigation of Trump could help their own political careers. Both of New York's last attorneys general moved up to the Governor's mansion, and an investigation into the Trump team will only help Schneiderman as he looks to follow his predecessors.

States like Florida, where the term-limited AG has been a staunch Trump ally and was herself the subject of controversy for squashing an investigation into Trump University, will be facing elections for AG in 2018. Candidates for the AG job may quickly discover that promises of an investigation into Trump's campaign and his related businesses are potential popular issue in the Democratic primary and beyond.

Trump has recently exercised his pardon power for the first time in Arizona, pardoning Maricopa County Sheriff Joe Arpaio from a potential criminal conviction. Trump may now feel that this test shows that using the pardon can help him fulfill his previous trial balloon and stave off a wider-ranging investigation of his campaign.

But the limits of his "complete power" stop at the border of the federal-state power divide. With at least one attorney general – if not many others – seeing the benefit of a taking Trump on in an investigation, a pardon may not be the red light that he thinks. It may instead be a starting gun for state officials to begin their own work.

Commentary by Joshua Spivak, a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College in New York. He blogs at The Recall Elections Blog. Follow him on Twitter @recallelections.

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