The Slatest

Trump’s Lawyer Reportedly Broached Pardons for Flynn and Manafort. That Could Be Obstruction.

Michael Flynn, viewed in profile.
Michael Flynn, former national security adviser to President Donald Trump, leaves following his plea hearing at the Prettyman Federal Courthouse on Dec. 1 in Washington. Chip Somodevilla/Getty Images

Donald Trump’s former lawyer John Dowd proffered the possibility of the president pardoning Michael Flynn and Paul Manafort with their lawyers, according to a report in the New York Times on Wednesday.

The Times cited “three people with knowledge of the discussions” in its reporting that Dowd, who quit Trump’s legal team last week, had broached the subject with Trump’s former national security adviser Flynn and his former campaign chairman Manafort. Flynn, who is now cooperating with special counsel Robert Mueller’s Russia probe, has since pleaded guilty to lying to federal investigators, and Manafort is facing the potential to spend the rest of his life in prison for federal charges of conspiracy, tax evasion, money laundering, and multiple other alleged crimes.

Dowd denied discussing pardons with lawyers for the two former Trump advisers, the Times reported. “There were no discussions. Period,” he told the newspaper. “As far as I know, no discussions.”

According to the Times:

Mr. Dowd’s conversation with Mr. Flynn’s lawyer, Robert K. Kelner, occurred sometime after Mr. Dowd took over last summer as the president’s personal lawyer, at a time when a grand jury was hearing evidence against Mr. Flynn on a range of potential crimes. ….

The pardon discussion with Mr. Manafort’s attorney, Reginald J. Brown, came before his client was indicted in October on charges of money laundering and other financial crimes.

The Times also reported that, according to two people briefed on the interviews, Mueller’s team has been asking current and former administration officials about “conversations they had with the president about potential pardons for former aides under investigation by the special counsel.”

The news is the latest indication of the extent to which Mueller appears to be focusing his investigation on the potential that the president has sought to obstruct justice in the FBI’s ongoing Russia election interference probe. Mueller, a former FBI director, took over that probe after it became public that fired FBI Director James Comey had alleged that the president pressured him to drop the investigation into Flynn. Trump has denied that allegation.

The Times cites Jack Goldsmith as arguing that “[i]t would be very difficult to look at the president’s motives in issuing a pardon to make an obstruction case.” Others, like Dowd and Alan Dershowitz, have also challenged the premise that Trump could face consequences for abusing his pardon power, describing it as pretty much absolute. As Jed Shugerman has argued, such a notion would quite clearly make the president “above the law” in a way the framers never envisioned. Some of the framers described potential future abuses of a pardon as possible grounds for impeachment. Early Supreme Court Justice and founding father James Iredell offered that a pardoned presidential “accomplice” would make for an “unexceptionable witness” against that president.

Other scholars have noted that there is precedent for future justice departments to criminally investigate, and potentially prosecute, any pardons that may be done with criminal intent. For instance, accepting a bribe for a pardon would clearly be illegal. President Bill Clinton was actually investigated by the FBI for that possibility after his pardon of Marc Rich, but no charges were ever brought.

“If he pardoned for money or pardoned corruptly, I would think that that could be prosecuted [under a future administration],” pardon scholar Margaret Colgate Love, told me. “He obviously can’t accept money for a pardon.”

Constitutional scholar Daniel Hemel, who explained with Eric Posner in the Times in July why such a pardon could be considered criminal, emailed me his assessment of the latest news:

It seems pretty clear to me that the following would constitute obstruction: Trump to Flynn: “I will pardon you if you agree not to cooperate with the special counsel’s investigation.” The fact that the President enjoys a broad pardon power seems inapposite. If Trump said to Flynn “I will name you ambassador to Switzerland if you agree not to cooperate …”, or “I will give you the Presidential Medal of Freedom if you agree not to cooperate …”, then that would, I think uncontroversially, be obstruction, even though those are things the President has the power to do … .

University of Missouri School of Law professor Frank Bowman, who writes the blog “Impeachable Offenses?” and occasionally writes for Slate, argued that even offering an unaccepted pardon would constitute impeachable obstruction, “because it threatens constitutional order and demonstrates the presidents unfitness for office every bit as much as a corrupt offer that the offeree accepts.”

During Senate testimony in June, Attorney General Jeff Sessions refused to answer congressional questions about whether anyone at the DOJ had discussed the possibility of presidential pardons for anyone involved in the Russia investigation. He did not cite executive privilege at the time but asserted an invented shield that he said allowed him to decline answering congressional inquiries.