0

It seems well established that the President does indeed have the right to preemptively pardon people for crimes they have not yet been convicted of, so that is not my question.

Right now there are news reports that President Trump is asking his staff how his power of pardon works. The speculation by media pundits is that he might use it as a preemptive pardon to derail the investigation by Special Counsel Mueller. Since a Special Counsel is confined to investigating only "criminal matters", if any target of the investigation were to be so pardoned it would seriously hobble certain courses of inquiry.

So my question is: If President Trump used his power of pardon preemptively on a known target of an investigation -- and it was very clear that the reason for doing so was to prevent further investigation (imagine a tweet that same day saying "This ends the unfair and fake witchhunt by Mueller!" -- would that action be able to be considered obstruction of justice under the law?

From the Cornell Law School website:

A person obstructs justice when they have a specific intent to obstruct or interfere with a judicial proceeding. For a person to be convicted of obstructing justice, they must not only have the specific intent to obstruct the proceeding, but the person must know (1) that a proceeding was actually pending at the time; and (2) there must be a nexus between the defendant’s endeavor to obstruct justice and the proceeding, and the defendant must have knowledge of this nexus.

Allow me to provide another, hypothetical, scenario for comparison:

Let's say that a State DA is investigating a public official who has been accused of raping someone. Along the way the DA discovers that a convicted murderer on death row has crucial evidence related to his investigation which would clear the public official of all charges. Unfortunately the man is scheduled to be executed in 3 days so the DA goes to the governor and asks for a temporary stay of execution so he can use the man's testimony to close the case. The poblic official is a political enemy of the governor so he decides to deliberately refuse the request for a stay and the execution goes forward as scheduled, thereby destroying evidence that might have been used for exoneration.

Is the governor guilty of obstructing justice?


EDIT

This edit is to clarify and prevent excess discussion on something that has started to become a minor discussion thread below. It is certainly relevant to understanding the eventual Answer but it is only tangential to the specific Question asked:

The Office of Special Counsel is an evolution from the Nixon-era caused Independent Counsel Act which was (deliberately) allowed to expire in 1999 due to unanticipated flaws. To replace it a set of Federal Regulations, 28 CFR 600 "GENERAL POWERS OF SPECIAL COUNSEL", was created (also in 1999) by the Justice Department to establish the role of the Special Counsel for cases where the DOJ might be investigating matters that have or appear to have conflict of interest issues.

The tangential matter related to the above Question is whether or not the President can personally fire the Special Counsel. Apparently the President could order the Atty Gen to fire the Special Counsel, but the President cannot directly fire him unless the DOJ was first to go through the involved process of modifying 28 CFR 600.7(d) or alternatively repealing the entire Part 600 set of Federal Regulations.

[28 CFR 600.7] "(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal."

Former Acting Solicitor General, Neal Katyal, helped draft PART 600 and explains in this article how it was designed to work.

  • Im not knowledgeable enough to write a full answer. But it appears that the presidents right to cancel an investigation, he has constitutional authority to stop an investigstion by ordering the attorney general to do so (or fire him). This includes giving a preemptive pardon. It is arguable that allowing the president to commit the crime of obstruction of justice is unconstitutional. Indeed it states in the constitution that a president may only be impeached for "high crimes" such as treason. – Shazamo Morebucks Jul 22 '17 at 4:22
  • Respectfully @ShazamoMorebucks, you are misinformed. 1. By federal law a Special Counsel can only be fired by the Atty Gen and only for a few very specific reasons. This law was designed -- because of Nixon doing just that -- to prevent "political" terminations of active investigations. 2. The meaning of the infamous "High Crimes and Misdemeanors" clause is much debated but would certainly include the President violating his Oath of Office which includes (via Article II, Section 3 of the Constitution) an obligation to "take Care that the Laws be faithfully executed." – O.M.Y. Jul 22 '17 at 4:41
  • @O.M.Y. Federal statute doesn't say anything at all about who can fire a special counsel. The special counsel was created by Justice Department regulations (n.b. the Office of Special Counsel is statutory, but it's unrelated to Mueller and handles certain federal civil service issues), and the Justice Department could modify those regulations. – cpast Jul 22 '17 at 17:38
  • @cpast - Actually it does, see 28 CFR 600.7(d) which says "The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General." I have incorporated the relevant information into an addendum edit to the main question above. And yes, Federal Regulations are not technically "statutes" but they carry the weight of law by the statute authorizing the self-same regulations. – O.M.Y. Jul 22 '17 at 19:45
  • @O.M.Y. Actually, it does not. As you noticed, the Code of Federal Regulations are not statutory. Nor are they just technically not statutes: They aren't statutes at all and are fundamentally different from statutes, most notably in that they can be changed by the executive branch without input from Congress. The statutory authority behind part 600 is just the AG's power to delegate their functions and appoint assistants for special purposes. There's no direct statutory authority restricting Mueller's dismissal, meaning the AG is free to modify part 600. – cpast Jul 22 '17 at 20:06
1

I focus on the crime of obstruction of justice, given an explicit definition in Ch. 73 of Title 18. I think the Cornell synopsis is good enough for most cases, and this would not be most cases. Various sections look (by title) like they might be applicable, such as §1503, §1510 or §1519. For 1503 to be relevant, the actor must act (a) "corruptly, or by threats or force, or by any threatening letter or communication", and this is about proceedings, not investigations. 1510 (a) says

Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined under this title, or imprisoned not more than five years, or both.

So not relevant, since the prevention of communication of information has to be "by means of bribery". 1519 starts

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object

but rendering an investigation moot is not affecting a tangible thing. The one plausible path w.r.t. obstruction is §1505, which rather broadly points to anyone who

corruptly...influences, obstructs, or impedes... the due and proper exercise of the power of inquiry ... by either House

The act would be corrupt if one were

acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information

To obtain a criminal conviction, it would have to be proven beyond a reasonable doubt that the purpose was something improper. Your proposed tweet esp. from this POTUS would have virtually no probative value, since it does not establish any purpose, just a result. A written memo saying something like "Crap, Mueller is gonna find out about JK's criminal activities and that's gonna get me imprisoned, so I need to put an end to this with a blanket pardon" could do it. Moreover, the kinds of acts described under "corruption" do not clearly extend to "granting a pardon": a pardon does not withhold, conceal, alter or destroy any information, it just affects the legal basis for compelling such information.

Consider the case where an attorney manages to quash a subpoena, with the purpose in mind that his client not be convicted of an actual criminal act. That means of preventing a particular line of inquiry is legal. Such legal conduct cannot be deemed obstructive on the grounds that it legally thwarts a line of investigation.

  • Thank you. This is very informative and well annotated. My compliments. Interestingly what you wrote suggests something I had not thought of before now. If Trump were to preemptively pardon any people he actually might be aiding the investigation since any thus pardoned people called to testify could not invoke the 5th Amendment. Right? – O.M.Y. Jul 22 '17 at 22:01
  • The link you provide to the definition of "corruptly" is probably key in some ways since it talks about taking actions with "improper purpose" and while it lists some possible actions the list is neither comprehensive or exclusive. – O.M.Y. Jul 22 '17 at 22:12
  • I had not thought about that, but yeah that would take the air out of the pardonee taking the 5th. – user6726 Jul 22 '17 at 22:30
1

The short answer is no. The President has plenary and absolute power to pardon anyone other than himself, before or after conviction, of any federal crime.

Therefore, his constitutional exercise of this power, whatever its motive, can not constitute a crime, although it could be a ground for impeaching the President or retaliating against the President politically.

In historical practice, Presidents and Governors have been increasingly loathe to use the pardon power, and tend to use it only when they are political lame ducks, precisely because the political costs of a pardon can be so high.

  • Where does "other than himself" come from? – user6726 Jul 23 '17 at 23:14
  • Among other things, an FBI or OLC memo from the Nixon era, although it also follows pretty automatically from the definition of a "pardon" and the fact that the U.S. is a Republic rather than a monarchy (per the Republican government clause). By analogy a transfer of property you to yourself cannot be a "gift". – ohwilleke Jul 23 '17 at 23:45
  • @ohwilleke I think as I read your answer that you see the power of pardon's constitutional authority as being equal to its legality. That would be a grave error of logic. Just because someone is granted authority to do something special under the law, does not mean it is actually legal to do that something in any and all circumstances. A cop is fully authorized to fire a gun while on duty, but it would be illegal for him to do so without valid reason, and criminal for him to do so with intent to deliberately harm someone (like shooting the kneecap of a suspect). – O.M.Y. Jul 24 '17 at 5:13
  • @O.M.Y. The pardon power, however, is not constrained by purpose. The case law makes clear that it is expressly plenary. Indeed, it was often used historically to achieve a result that would otherwise not be possible under the law. – ohwilleke Jul 24 '17 at 6:51
  • Plenary yes, limitless no. All of the powers of the president are constrained by the Constitution, aka the ultimate law of the land and the foundation of our governmental systems. Actions which effectively weaken the justice system, such as interfering in an investigation could be seen by some legal minds as a violation of his oath of office to support the Constitution. At this point we have never had to test this theory but it is hard to imagine the founders would have intended to give the president the ability to undermine and scoff at the law. That was what the hated about kings. – O.M.Y. Jul 24 '17 at 16:06
1

One source states:

Obstruction could occur, for instance, if the President suggested publicly that he might pardon a White House aide who was under investigation, which could signal an obstructive quid pro quo--the target's silence about the President's illicit involvement in exchange for the President's pardon.

Luke M. Milligan, The "Ongoing Criminal Investigation" Constraint: Getting Away with Silence, 16 Wm. & Mary Bill of Rts. J. 747, 777 n.133 (2008).

And for some historical perspective:

If Watergate had any lesson, it was that when someone connected to the White House is heading for prison, it is dangerous for the president or those close to him to even think about--not to mention talk about--clemency.

After all, the March 1, 1974 indictment of Mitchell, Haldeman, Ehrlichman and Chuck Colson (who pled guilty, rather than risk a trial) charged each of them with a conspiracy to obstruct justice by offering to provide clemency to those involved in the Watergate break-in. In addition, as Nixon's tapes showed, the president discussed pardons on several occasions, and this abuse of power was included in the bill of impeachment against him that was pending when he resigned.

John W. Dean, The Bush Administration's Dilemma Regarding a Possible Libby Pardon-And How Outsiders Such as Fred Thompson Appear to Be Working on a Solution, FindLaw, June 1, 2007.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.