Why dangling a pardon could be obstruction of justice

Rudy Giuliani today played the pardon card as Paul Manafort was jailed, Michael Cohen wobbled, and donald Trump raved bout the unfairness of it all.
So this is a good time to post Alex Whiting's March 2018 piece.
Why dangling a pardon could be obstruction of justice

by Alex Whiting (Harvard Law School)

March 16,2018

While acting as Donald Trump’s personal lawyer, John Dowd reportedly discussed the possibility of presidential pardons for Michael Flynn and Paul Manafort in separate conversations with their lawyers. Reports by the New York Times and Washington Post on Wednesday suggest that Dowd’s intent might have been to influence Flynn and Manafort’s decisions on whether to plead guilty and cooperate in the investigations, but that legal experts are divided on whether Dowd’s offers could constitute obstruction of justice.

Some experts have argued that the pardon power is absolute and that the President’s motives in issuing a pardon thus could not be questioned, while others contend that it could be a crime to issue a pardon for corrupt purposes (such as in exchange for cash). But the debate over the absolute nature of the pardon power is actually not relevant to the alleged incidents involving Trump’s lawyer. Indeed, that entire debate can be set aside for the moment. Why? Because there’s been no pardon. Instead, a pardon has only been dangled before Flynn and Manafort, and the analysis of whether that action could become part of an obstruction case against Trump raises entirely different considerations.

If Trump actually pardoned Flynn and Manafort, he would have to do so publicly and accept the political consequences of this profound act. As Jack Goldsmith suggests in the New York Times story, for those who believe that the pardon power is absolute and cannot be scrutinized by courts, the remedy for a corrupt pardon is in the political arena: elections or impeachment. What’s more, if Trump actually pardoned Flynn and Manafort, then the two men could no longer assert their Fifth Amendment privilege against self-incrimination because their pardons would erase their federal criminal liability, and therefore Mueller could call both to testify in the Grand Jury and in any subsequent trial. If they continued to assert their Fifth Amendment privilege on the basis of state criminal exposure, Mueller could obtain an order granting them so-called “use immunity” which would ensure that their testimony could not be used against them in any way in state court either. Manafort and Flynn would then be compelled to testify, or risk jail for contempt of court.

The pardon dangle works completely differently—and in important respects has the opposite effects. First, this kind of dangle is not a public act. Therefore, as long as it remained secret, it could be done without incurring any of the political downstream consequences that come with actually pardoning someone. It hides the President from scrutiny rather than exposes him to it as a potential check on the use of the power. Second, the objective of the dangle appears to have been to foreclose the prospect of Flynn and Manfort’s cooperating or testifying. Once again, this is the opposite effect of an actual exercise of the pardon. The message of the dangle was sufficiently clear: hang in there and keep fighting (do not cut a deal with the special counsel) because you will be pardoned before you spend a day in jail. The President and his lawyer’s hope would have been that with the threat of jail eliminated, neither former aid would feel compelled to plead guilty and cooperate with Mueller to reduce his sentence. But, since they were not actually pardoned or not yet anyway, they still kept their Fifth Amendment privileges, and so Mueller could not simply demand they testify before the Grand Jury. In this way, the dangle could operate to stop any cooperation from Flynn and Manafort, who could then be pardoned later if and when they were indicted or even after their cases went through pretrial, trial and appeal. Indeed, you also have to put yourself back at the time these events all took place: before Manafort was indicted and Flynn pleaded guilty. That’s when the dangle could work its magic.

Because a pardon dangle is secret and seeks to discourage cooperation with an ongoing investigation without public scrutiny or consequences, it should be analyzed differently than a pardon when it comes to an obstruction case. Because of the way a pardon dangle operates, it should acquire none of the deference that might be afforded an actual pardon, and if the dangle is found to be orchestrated with a corrupt motive, it should qualify as a potential act of obstruction of justice.