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Mueller Tasks an Adviser With Getting Ahead of Pre-Emptive Pardons

Mueller Tasks an Adviser With Getting Ahead of Pre-Emptive Pardons

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U.S. Special Counsel Robert Mueller has a distinctly modern problem. The president, judging by his tweets, could try to pardon people in his circle even before prosecutors charge anyone with a crime.

Mueller’s all-star team of prosecutors, with expertise in money laundering and foreign bribery, has an answer to that. He’s Michael Dreeben, a bookish career government lawyer with more than 100 Supreme Court appearances under his belt.

Dreeben with a jersey commemorating the number of his U.S. Supreme Court appearances.

Source: National Association of Former United States Attorneys

Acting as Mueller’s top legal counsel, Dreeben has been researching past pardons and determining what, if any, limits exist, according to a person familiar with the matter. Dreeben’s broader brief is to make sure the special counsel’s prosecutorial moves are legally airtight. That could include anything from strategizing on novel interpretations of criminal law to making sure the recent search warrant on ex-campaign adviser Paul Manafort’s home would stand up to an appeal.

“He’s seen every criminal case of any consequence in the last 20 years,” said Kathryn Ruemmler of Latham & Watkins LLP, who served as White House counsel under President Barack Obama. “If you wanted to do a no-knock warrant, he’d be a great guy to consult with to determine if you were exposing yourself.”

Three Decades

Dreeben, 62, built that expertise over three decades as an appeals lawyer at the Justice Department. As a deputy solicitor general, he’s pored over prosecutors’ moves in more than a thousand federal criminal prosecutions and defended many of them from challenges all the way to the nation’s highest court.

Dreeben has begun working on legal issues as a counselor to Mueller but is also retaining some of his solicitor general work for the sake of continuity, according to Peter Carr, a spokesman for the special counsel’s office. Carr declined to elaborate on Dreeben’s work with Mueller or make Dreeben available for comment.

Pre-emptive pardons are a distinct possibility now that current and former Trump advisers are under Mueller’s scrutiny. Trump himself has tweeted that everyone agrees the U.S. president has “complete power to pardon.” Some of those kinds of executive moves have been well studied, including Gerald Ford’s swift pardon of Richard Nixon and Bill Clinton’s exoneration of fugitive financier Marc Rich. But the legal territory is largely uncharted over pardons of a president’s own campaign workers, family members or even himself — and how prosecutors’ work would then be affected.

Trump, Russia and the Early Murmurs About Pardons: QuickTake Q&A

What Dreeben brings to the question, say those who know him, is a credibility that comes from parsing how criminal prosecutions have played out across the country. A balding and bearded New Jersey native with a slightly nasal delivery, he has a knack for building careful arguments and the eloquence in court to lay them out in well-reasoned paragraphs, said Miguel Estrada, a lawyer at Gibson Dunn & Crutcher LLP.

His path wasn’t exactly direct. Dreeben intended to pursue an advanced degree in history at the University of Chicago before changing his mind and enrolling at Duke University School of Law, according to a profile of him last year in Law360. He studied at Duke under Sara Beale, who’d worked in the Solicitor General’s office and helped plant the idea of representing the U.S. in arguments before the country’s highest court.

Click here to watch a video of Dreeben giving a talk at Duke Law in 2010

Dreeben got his first shot in 1989. His opponent before the Supreme Court was another first-timer, a private practice lawyer named John Roberts.

Dreeben lost. But the moment left an impression on Roberts, now the court’s Chief Justice. After Dreeben made his 100th argument before the court last year, Roberts called him back to the lectern, recalling the decades-earlier meeting.

“You have consistently advocated positions on behalf of the United States in an exemplary manner,” Roberts said, extending the court’s appreciation for his “many years of advocacy and dedicated service.”

Dreeben had urged the court that day to uphold the conviction of former Virginia governor Robert McDonnell on charges of public corruption. The Supreme Court ultimately overturned McDonnell’s conviction.

Dreeben’s reviews of how cases were built against McDonnell and others will be invaluable to Mueller. Appellate lawyers like Dreeben are stuck with decisions already made at the prosecutorial level, said Estrada, who worked in the Solicitor General’s office in the 1990s. But now, he added, Dreeben is in a position to troubleshoot problems before cases are filed.

“You have to argue what you’ve got, and the cake is already baked,” Estrada said. On Mueller’s team, by contrast, Dreeben “has the opportunity to measure the flour.”

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