When special counsel Robert Mueller was finalizing charges against former Trump advisers Paul Manafort and Michael Flynn last year, President Trump’s top lawyer secretly told attorneys for the two men that Trump might pardon them.
We don’t know if Trump authorized the overture — which was first reported by the New York Times — or if it was part of an attempt to dissuade Manafort and Flynn from cooperating with Robert Mueller’s Russia probe. But the move by then-Trump lawyer John Dowd raises an important legal question: If the reports are true, would he potentially be guilty of witness tampering or obstruction of justice?
To answer this, I reached out to eleven legal experts. Their full responses, edited for clarity and style, are below.
Julie O’Sullivan, law professor, Georgetown University
I am frankly gobsmacked. We don’t know if President Trump authorized this outreach, although according to news reports he was talking with advisers about pardoning Flynn at least. So I cannot say that this constitutes obstruction pure and simple, but if Trump authorized the outreach and his intention was to influence Flynn and Manafort’s cooperation, it sure looks like obstruction.
I have read the opinions of those who think that the pardon power is unlimited — that is, that the president can pardon potential accusers with impunity. I disagree. If one reads what little commentary there is on the drafting of the Constitution, and the debates in the first Congress about the presidential appointment power, one thing is crystal clear: The framers had no intention of appointing a king who was exempt from the law. In short, the president cannot abuse the pardon power to render himself immune from criminal accountability. And if he tries to do so, it screams “obstruction of justice.”
Asha Rangappa, former FBI agent and senior lecturer, Yale University
The president has a virtually unfettered power to pardon under the US Constitution. Using that power to preemptively wield influence over a potential witness in a case, however, is a different matter altogether. That’s because in such a circumstance, the president is using his power to entice a person to behave in a particular way, or potentially promising to exercise his power on the condition that he receives a benefit from the person he’s trying to influence. Attempting to use the pardon power in this manner could constitute obstruction of justice, witness tampering, or even bribery, and would be an abuse of power, plain and simple.
Lisa Kern Griffin, law professor, Duke University
While the pardon power is quite broad under the Constitution, that does not mean that exercises of the pardon power — or promises to grant pardons — cannot be obstructive. Like any other lawful act, such as terminating executive branch employees, a pardon could be unlawful if done with the corrupt intent to impede an investigation or influence a witness.
Discussions about pardons could also serve as additional circumstantial evidence of the intent with which the president acted in taking other steps. Pardons do not require notice or any permission from the recipient. If Dowd had these conversations with counsel for Flynn and Manafort, it’s hard to explain why he would do so unless there were an attempt to dissuade them from cooperating with the special counsel.
Diane Marie Amann, law professor, University of Georgia
Assuming the news reports are accurate, Dowd’s conduct could give rise to prosecution for a number of federal crimes. “Whoever corruptly endeavors to influence, obstruct, or impede the administration of justice” may be guilty of obstructing justice under US law. If the approach “corruptly persuades” a person not to testify, it may be witness tampering. And if the persuasion “promises anything of value” to a witness who absents himself from a proceeding, it may constitute bribery.
Andy Wright, law professor, Savannah Law School
Floating the possibility of a pardon to a witness considering cooperation with a grand jury investigation would be bad if Dowd represented another nonpresidential witness. It would be especially bad when he represented Donald Trump.
There is an active debate among legal scholars about whether the president’s bad-faith use of constitutionally enumerated pardon power could constitute an act of statutory obstruction of justice. However, that would not be at issue here. First, a dangle of a pardon is different than the issuance of a pardon. Imagine a president taking a bribe in return for a promised pardon. The bribery law is designed to protect the integrity of official decisions, like whether to pardon. But it criminalizes the illicit quid pro quo agreement, not the presidential act.
Second, Dowd represented Donald Trump in his personal capacity and not as president. A presidential pardon is an official, not a personal, act. Dowd has never had any mandate or authority with respect to pardons. His relation to them is, by definition, unofficial and personal advocacy on behalf of Donald Trump. The use of a pardon for personal gain would constitute a gross abuse of power. Therefore, a pardon dangle, especially one by the president’s private lawyer, could twist up not only the client but also the lawyer in a criminal obstruction probe.
Samuel Gross, law professor, University of Michigan
The president has the constitutional power to pardon those who have been or might be convicted of federal crimes. No question about that — it’s in Article II of the Constitution. But like any power, this one can be used to commit crimes. If the president sells a pardon for $1 million, that’s bribery; if he pardons a person with the corrupt intention to keep that person from providing evidence in a criminal investigation — and it works — that’s obstruction of justice. Nothing surprising or unusual there.
The only question is: What can be done in response? Many scholars say that a sitting president can’t be indicted — charged with a crime — and certainly not tried and convicted of a crime while still in office. But he can, of course, be impeached for “high crimes and misdemeanors,” and bribery and obstruction of justice both qualify. And after he has left office, the president could be prosecuted for crimes committed while he was in the White House.
Jed Shugerman, law professor, Fordham University
In my view, the biggest problem in the New York Times story is a suggestion that the pardon power can’t be the basis for a criminal charge because it is “absolute” and “cannot be burdened by the courts or the legislature.” The history of pardons is actually not quite so clear, and there is evidence suggesting that self-pardons would not be valid, and possibly that self-protecting pardons also would not be valid, because the president has a duty to take care that the laws be “faithfully executed.”
If a president sold pardons for money, the president would be guilty of bribery. If a president sold nominations for money, he would be guilty of bribery. So, too, if the president offered pardons in order to corruptly obstruct justice, that would be a felony. Those who say the president is immune for his official acts are essentially saying the president is uniquely above the law, that he should be held to a different standard from other officials who take bribes, buy off witnesses with public goods, or obstruct justice. That view is inconsistent with our democratic and republican notions of law.
Jessica Levinson, law professor, Loyola Law School
If these allegations of Dowd discussing the granting of pardons to Flynn and Manafort are true, it’s hard to see how Dowd would want anything other than to hinder Mueller’s investigation and keep Flynn and Manafort from sharing information that can damage the president.
But somewhat surprisingly, I do not think that clearly means Dowd’s actions would give rise to a successful claim of obstruction of justice. The issue here is that the president’s pardon power is so broad that he likely has the power to pardon Flynn and Manafort, even if that hinders the investigation. At this point, it remains an open question.
Christopher Slobogin, law professor, Vanderbilt University
If Dowd offered a pardon in return for noncooperation with the Mueller investigation into the legality of Trump’s actions, that would be a blatant case of obstruction of justice. It would have been a “corrupt” effort to prevent Mueller from obtaining evidence. But if the offer was made, then the question is why Flynn, who pleaded guilty and apparently is cooperating, didn’t take it.
Jens David Ohlin, law professor, Cornell University
Context matters. While the president alone has the pardon power, wielding it corruptly could be criminal. Some legal scholars have suggested that the pardon power is absolute, but that view is embedded within a discredited view of the presidency as monarch, which is out of step with our constitutional democracy.
For example, if the president were to sell a pardon for financial gain, that would be illegal. Similarly, if the president threatened to withhold a pardon in exchange for money, that too would be illegal. Finally, if the president uses the pardon power to obstruct an investigation into his own campaign, his own family, or himself, that would be a form of self-dealing that would constitute obstruction of justice.
Miriam Baer, law professor, Brooklyn Law School
Imagine either the president or an agent of the president offered Michael Flynn or Paul Manafort $1 million to refrain from pleading guilty or cooperating in a criminal prosecution. We would almost certainly say that such an offer qualified as “obstruction of justice.”
At the other end of the spectrum, if the president had simply pardoned either Paul Manafort or Michael Flynn (announcing, for example, that he thought their cases were unwarranted or flimsy), we might very well conclude that those pardons, regardless of their political merits, were beyond the scope of the obstruction statute, owing to the president’s unbounded right to pardon federal criminal defendants.
But, as several commentators have already pointed out, offering a criminal suspect or defendant a pardon in exchange for his silence is not the same thing as simply pardoning someone. Thus far, we have no idea whether the president was aware of Mr. Dowd’s conversations with the attorneys representing Flynn and Manafort, and we have little knowledge of the specific representations Mr. Dowd made during these conversations. But If the gist of each conversation was Mr. Dowd’s pushing Flynn and Manafort to not cooperate, then Mueller might include these in a broader obstruction prosecution.