Pardon and Prison: An Analysis of Trump’s Pardon Power and How It Could Lead to Obstruction

What are the limits of Trump’s pardon power?  Can he offer it to any of his former associates facing prison time in exchange for their loyalty?  Could the use of his pardon power lead to charges as a result of the Mueller investigation? 

Americans have endured extraordinary times since Special Counsel Robert Mueller was appointed to handle the Russia Investigation.  Despite what critics may say, Mueller and his team have acted with surgical precision, piecing together a puzzle of lies, corruption, money laundering, and collusion. When there is this much smoke, it is hard to believe the fire does not emanate from its central source: Donald Trump. 

Below is an analysis of Trump’s ability to save himself and his associates with his pardon power. The analysis also examines what charges Mueller might be able to bring should Trump try to pardon potential co-conspirators, or even himself.             

What are the Limits of the Presidential Pardon Power?

Article II, Section 2 of the United States Constitution states that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

It’s important to note that the pardon power of thePresident applies only to convictions under federal law.  Accordingly, state law judgments fall outside the bounds of the President’s power to pardon (that means states like New York could potentially charge Manafort for similar crimes that he’s currently accused of at the federal level). 

The second, and perhaps most obvious, limitation to the President’s pardon power is in cases of impeachment, where he’s prohibited from saving himself or another official if they have been formally impeached. 

The question of whether the President can pardon himself isa murkier one because no President has ever tried.  The best argument in a President’s favor is the fact the Constitution does not expressly prohibit him from doing it. 

Nevertheless, most legal scholars argue that such a pardon would be unconstitutional.  Underpinning the entire U.S. Constitution is the principle of the rule of law, which prohibits anyone from being a judge in his own case.  A President who attempts to pardon himself would in effect be doing just that – acting as a judge of himself.

Not only would a self-pardon be potentially legally problematic, it would likely be a political disaster as well.  The court of public opinion would inevitably rebel in the midst of this Constitutional crisis, and the action may lead directly to impeachment.  It is easy to envision riots in the streets and mass demonstrations targeted against anyone who holds himself above the law in this type of obscene manner.

Whether the President can pardon someone convicted or indicted as part of an investigation that directly implicates him as a co-conspirator is a different issue. 

Who could Trump Pardon in the Russia Investigation?

There is precedent here.  In 1992, the late President George H.W. Bush pardoned six former administration officials involved in the Iran-Contra affair in what some legal experts described as a cover-up of Bush’s own role in the scandal.  As a refresher, the Iran-Contra affair occurred in the second term of the Reagan Administration and involved senior officials secretly facilitating the sales of arms to Iran to fund the Contras in Nicaragua (Congress had specifically denied funding for this purpose).  Bush was Vice President at the time.    

It smells bad, doesn’t it? It is hard to imagine Americans accepting these types of pardons today when the President granting the pardons is connected to the underlying criminal behavior.  Let’s think about the logical consequence of a President being permitted to offer pardons to co-conspirators. 

If this type of compelling offer is on the table, aPresident could legally accept bribes in exchange for pardons.  In Trump’s case, while he may not need cash fora pardon, he certainly wants loyalty. Demanding absolute loyalty in exchange for a pardon could be viewed as obstructing justice.  Trump would be asking co-conspirators to lie and/or impede a federal investigation so he is not implicated.  For their efforts, they would receive full immunity in the form of a pardon. It is hard to imagine how this would notbe considered obstruction.     

Depending on the facts, obstruction of justice can be a difficult crime to prove, especially if it relates to a Presidential power that reads almost unequivocally (aside from the impeachment and federal law limitations)in the Constitution.  With that being said, obstruction of justice is a serious crime, one that lay at the heart of the Bill Clinton impeachment and the charge that forced Richard Nixon to resign. 

What’s more, although a single act of obstruction is sufficient for an obstruction of justice charge to stick, federal courts have found that a course of conduct can also give rise to charges of obstruction.  This includes actual obstruction and any attempts to obstruct justice, regardless of whether an underlying crime occurred (i.e., not only can the cover-up be worse than the crime, in some cases, it is the crime). 

The difficult element for Mueller to prove is that of “corrupt” intent.  Trump holds some level of discretion over the Russia Investigation and those charged in connection to it given his role as the chief law enforcement officer of the United States.  His prosecutorial discretion, however, is not absolute.  If he attempts or acts with a corrupt intent, whether to save himself or obtain something illicit from co-conspirators in exchange for a pardon, it is likely he could be found guilty of obstruction of justice. 

Regardless of whether Trump colluded with Russians to rig the 2016 U.S. election, or whether he promised Vladimir Putin a $50 million penthouse in exchange for permission to construct Trump Tower Moscow, the cover-up and any pardons he makes in the process may in fact be worse than any underlying crimes.  Given these implications, Trump should think twice before using his pardon power on anyone connected to the Russia Investigation.  The law on obstruction is not in his favor if he hopes to use this power to secure loyalty from potential co-conspirators like Paul Manafort or Roger Stone.  Tread carefully, Mr. President.