Pardons, Self-Pardons and Impeachment (Part IV)

This post will conclude my series (see here, here and here) on the pardon power and impeachment. Today I will look at the pardon power in the context of the Russia investigation and explain why, in my judgment, the totality of the evidence warrants opening an impeachment inquiry focused on the president’s abuse and threatened abuse of the pardon power.

Pardons and the Russia Investigation 

On May 17, 2017, Robert Mueller was appointed as special counsel to “conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017” relating to the Russian government’s interference in the 2016 presidential election. The appointment expressly included “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”

Mueller’s appointment occurred just days after Trump had fired Comey, an action which was widely believed to have been taken because of Trump’s unhappiness with Comey’s handling of the Russian investigation. Trump, in fact, seemed to confirm this suspicion in a television interview immediately after the firing. Comey’s own testimony suggested that he may have been fired because he failed to comply with Trump’s “direction” that he drop the investigation with regard to former national security advisor Michael Flynn. More recently, Trump’s current lawyer, Rudy Giuliani, said that Comey was fired in part because he refused to say publicly that Trump was not under investigation.

On June 23, 2017, less than a month after Mueller’s appointment, Trump’s then-counsel, Marc Kasowitz, wrote to the special counsel expressing concern that Mueller was investigating the Comey firing as a potential obstruction of justice. Kasowitz argued that there was “no [c]onstitutionally permissible . . . view under which the President’s removal of Director Comey could constitute obstruction” because the president “has exclusive authority to direct that a matter be investigated, or that an investigation be closed without prosecution,or that the subject of an investigation or conviction be pardoned.” (emphasis added). In support of this proposition, he quoted Judge Kavanaugh’s dictum that “[t]he President may decline to prosecute or may pardon because of the President’s own constitutional concerns or because of policy objections to the law, among other reasons.” See In re Aiken County, 725 F.3d 255, 262-66 (D.C. Cir. 2013).

Kasowitz also argued that as a factual matter, the evidence did not support the proposition that Trump had attempted to obstruct justice by speaking to Comey about the Flynn investigation. Even if Comey was correct that Trump had expressed the “hope” that Comey would “let [the Flynn investigation] go” (something the White House denied), Kasowitz maintained this could not reasonably be construed as an attempt to obstruct. Moreover, he added in a footnote: “While some have made much of the fact that the President spoke to Director Comey privately about General Flynn, the President has made essentially identical public statements (including the day after meeting with Director Comey) that he thought General Flynn was a good guy who was being treated unfairly, hardly indicia of a secret, corrupt attempt to obstruct an investigation.”

A subsequent letter to Mueller (sent on January 29, 2018 by Trump’s then counsel John Dowd and Jay Sekulow) reiterates and elaborates on these positions. The January 29 letter specifically notes that “[i]t remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.” (emphasis in original).

While these letters do not state that Trump intends to pardon anyone in connection with the Russia investigation, neither do they disavow such intention or deny that the possibility is under consideration. They are reasonably read to suggest that it would be perfectly proper for Trump to grant such pardons “if he so desired.” More recently, Giuliani has publicly stated that Trump may issue pardons for those he decides were “treated unfairly” in the Russia investigation, and he expressed the view that “there is a lot of unfairness out there.” Giuliani, however, indicated that Trump would not issue such pardons until the investigation was complete.

Trump’s Attitude Toward the Russia Investigation

In the last post, we saw that Trump has pardoned people that he believes or claims have been treated unfairly by law enforcement. Trump has also consistently expressed sympathy for the targets or potential targets of the Russia investigation (particularly Flynn, former campaign chairman Paul Manafort and personal attorney Michael Cohen) and said that they are being treated unfairly. He has pointedly refused to rule out pardoning them.

Indeed, the views that Trump has expressed about the Russia investigation go far beyond empathy for subjects, targets or witnesses. As you are probably aware (unless you have been in a coma the past several years), Trump has consistently attacked the legitimacy and impartiality of the investigation, which he famously terms a “witch hunt.” As this Time magazine article details, “[s]ince the first questions were raised about the Russian influence operation in 2016, Trump has put forward defenses, raised doubts and thrown out attacks and counter-claims at a rate that dwarfs the typical presidential response to an investigation.” One tweet about Flynn gives the typical flavor:

So General Michael Flynn’s life can be totally destroyed while Shadey James Comey can Leak and Lie and make lots of money from a third rate book (that should never have been written). Is that really the way life in America is supposed to work? I don’t think so!

Tweet of Apr. 20, 2018.

The point here is not to litigate the merits of Trump’s complaints against Comey, Mueller and many others, including Trump’s own attorney general and deputy attorney general. Rather it is to observe that Trump’s public statements alone show an implacable hostility to the investigation and any prosecutors or law enforcement officers associated with it. It is difficult to imagine anyone arguing with a straight face that any pardons he might grant in connection with the Russian investigation would be untainted by these personal interests and passions.

Indeed, one of the peculiar things about the present circumstances is the degree to which the things that are normally in dispute in a presidential scandal are off the table. Ordinarily, a president’s defenders will argue that he may be expected to put aside personal and political interests in order to uphold his oath and fulfill his solemn constitutional responsibilities. To quote Attorney General Wirt (in an entirely different context), nothing else can be assumed “without imputing to the President a degree of turpitude entirely inconsistent with the character his office implies.” In the current case, however, Trump’s own words leave little doubt that he sees the Russia investigation entirely from the perspective of personal and political interests, not as a question of national security or constitutional fidelity.

Grounds for an Impeachment Inquiry

Based on public information alone, there are “grounds to believe [the president] will shelter” (to use Madison’s phrase) associates, friends and family targeted by the Russia investigation. Just as Trump pardoned Arpaio, Libby and D’Souza because he said they were unfairly targeted for political reasons, one can reasonably conclude he is likely to do the same for individuals like Flynn, Manafort and Cohen.

Notwithstanding Giuliani’s claim that Trump would not issue pardons until the Russia investigation is complete, there is evidence suggesting that pardons have already been discussed with certain individuals. The New York Times reported that Trump’s counsel has broached the possibility of pardons for Flynn and Manafort with their lawyers. For example, Dowd allegedly told Robert Kelner, who represents Flynn, that “the president had long believed that the case against Mr. Flynn was flimsy and was prepared to pardon him.” Dowd has denied making such statements, but if substantiated they would constitute strong evidence that Trump is dangling pardons before potential witnesses against him.

If the evidence shows that Trump has offered pardons to or is considering pardons for witnesses in the Russia investigation in order to persuade them not to cooperate with prosecutors, it would seem to establish a textbook case of an impeachable abuse of the pardon power. This is the precise situation discussed by Mason and Madison at the Virginia ratifying convention, in which a president uses his pardon power “to stop inquiry and prevent detection,” to use Mason’s words.

Even if it is not established that Trump is seeking to prevent cooperation with prosecutors, it could be argued that his statements and actions are impeachable because they have that inevitable effect. One noted commentator made that argument some 20 years ago. In 1998, before Clinton had issued his most controversial pardons, she noted that some of his associates seemed to be under the impression that the president would protect them in their troubles with the law:

Perhaps some will say James McDougal isn’t credible on this point. And Hubbell’s lawyer may have been dreaming. But the standard the framers gave was precisely whether crooks had reason to believe that the president would protect them, not whether the president actually intended to protect them. Madison said a president could be impeached if there were “grounds to believe he will shelter” any person. Somehow Clinton’s criminal associates have fallen under the impression that he will pardon them, and President Clinton has done nothing to dispel that impression.

Ann Coulter, High Crimes and Misdemeanors: The Case Against Bill Clinton 295 (1998).

By this standard, Trump has clearly committed impeachable offenses, as he has not merely failed to dispel the impression that he may grant pardons to his “criminal associates” (including at least one who has already pled guilty to a federal crime), he has personally and through his counsel left that possibility explicitly open. In addition, there is evidence that Trump’s counsel has directly discussed possible pardons with lawyers for some of these associates.

One might argue that Coulter has taken Madison too literally; impeaching a president on mere suspicion that he will use his pardon powers for the benefit of his cronies seems premature. Even the refusal to renounce such a possibility could be defended on the grounds that the president should not divest himself of a constitutional authority, even if the circumstances under which it would be proper to employ it are hard to foresee.

There are at least three reasons, however, why it would be unacceptable for Congress to take a wait and see attitude with respect to the potential (mis)use of the pardon power in the Russia investigation. The first is that once pardons are actually granted, it may be too late to redress the damage. In this regard, it should be noted that while Clinton did not ultimately pardon Jim McDougal or Webster Hubbell, his last minute pardons did include four individuals involved in the Whitewater investigation, including McDougal’s ex-wife Susan. See Alschuler, 100 J. Crim. L. & Criminology at 1158-60..

Even though Clinton’s pardons took place in literally the last minutes of his presidency, the House Government Reform Committee undertook a vigorous investigation of the pardons and the surrounding circumstances. As one Democratic member of the committee, Representative Eleanor Holmes Norton, remarked at the time:

The investigation was not only warranted; I believe the investigation has already served an important purpose. It is impossible for me to believe that any person contemplating running for President of the United States or who gets that office will again participate in the kind of pardon activity that went on at the end of the Clinton Administration.

H.R. 107-494, vol. III, at 3391 (quoted in the Additional Views of Hon. Dan Burton). The deterrent value of that investigation may have worn off with the passage of time, but congressional action now can prevent the clearly foreseeable abuse of the pardon power in the current administration. The situation is analogous to congressional efforts to dissuade Trump from firing the special counsel; the point is to send a clear message in hopes of deterring the president from taking the action in the first place.

Second, the actual granting of the pardons is not the only—or even the primary—evil that impeachment is designed to address. By dangling pardons before subjects or targets of the Russian investigation, Trump may be inducing their non-cooperation and making it unnecessary actually to grant the pardons. This prospect is presumably why Madison referred to “grounds to believe” the president would shelter his associates, as opposed to evidence that he had already done so.

Third, the damage here is not limited to the Russia investigation. The combination of Trump’s use of the pardon power to date and the promiscuous discussion of pardons by Trump and his legal team in connection with the Russia investigation inevitably cast a cloud over the administration of justice and any pardons that this president may grant in the future. As Senator Susan Collins wryly remarked after Giuliani’s pardon comments: “I think it would be more helpful if the president never mentioned the word pardon again with respect to the investigation.”

This brings us back to the subject with which we started- Trump’s tweet about his right to pardon himself. Whether Trump is correct as a legal matter is of little importance. As one observer recently noted (about a different legal issue related to the Russia investigation), “[i]t isn’t very surprising to see the president tweet a meritless legal position, because, as a non-lawyer, he wouldn’t know the difference between a good one and a bad one.” And as we saw in my first post, the president’s position on self-pardons is not even clearly wrong, though it certainly is debatable. See also Coulter, supra, at 295 (“the president has absolute authority to pardon anyone but himself”).

The real problem is that the president, unlike any of his predecessors, chose to claim publicly the power of self-pardon. While President Nixon (and perhaps others) seriously considered the possibility of pardoning himself, to my knowledge no president has ever publicly asserted the right to do so. This is not mere happenstance. The fact that the president arguably has the power to take a particular action under an extraordinary set of circumstances does not make it appropriate or proper for him to announce that fact, particularly in the absence of any apparent reason for doing so.

To my knowledge, the only statement of the executive branch prior to the current administration on the issue of self-pardons was this August 5, 1974 Office of Legal Counsel opinion which indicates (although in admittedly conclusory fashion) that the president cannot pardon himself. Since President Trump has neither mentioned this opinion nor any revisiting of the issue by OLC or any other executive branch lawyers, it seems reasonable to infer a lack of interest in the actual legal merits of the subject upon which he so confidently opined.

Viewed in the most charitable light, Trump’s tweet regarding the power to self-pardon again suggests impulsiveness and a lack of care bordering on recklessness. Senate Judiciary Committee Chairman Chuck Grassley responded to Trump’s tweet by saying: “If I were president of the United States and I had a lawyer that said I could pardon myself, I think I would hire a new lawyer.” What Grassley actually meant, I suspect, was that Trump’s tweet was incredibly foolish even if a lawyer advised him it was accurate.

At some point a pattern of impulsive and arbitrary use (or threatened use) of the pardon power may rise to the level of impeachable conduct even if there is no ulterior motive to thwart investigations or protect the president from the legal consequences of his actions. The president’s unlimited and unreviewable authority to grant pardons is based on the assumption that he will exercise this vast power with some degree of prudence and deliberation. President Trump, it appears from overwhelming evidence, has interpreted this as a license to issue pardons whenever he so desires, with little or no consideration of consequences or counterarguments. His standard, to the extent he has one, for the exercise of this vast power is his sense of “unfairness,” which seems to be as ill-considered and self-centered as that of a small child.

That is the charitable view. Viewed less charitably, Trump’s self-pardon tweet may reflect a strategy to protect himself and his associates from the special counsel and other investigations that threaten their personal interests. By expressing the authority to pardon himself in connection with the Russia investigation, he emphasized the breadth of his pardon power and willingness to employ it if need be to counter a probe he views as a “witch hunt.” Although the tweet implied Trump has no plans to pardon himself (since he has “done nothing wrong”), one could infer a willingness to pardon others, who may or may not have done something wrong, but whom Trump deems in any event to be victims of a politically motivated witch hunt.

After all, he has done it before.

Conclusion

Impeachment of a president is not a matter to be considered lightly. Although there are a wide range of matters that have been suggested, some more plausibly than others, as potential grounds for impeachment of the current occupant of the White House, abuse of the pardon power stands out for several reasons: (1) the extent to the pardon power can be exercised by the president personally with little or no assistance from others; (2) the concomitant amount of damage that can be inflicted by the president’s impulsive, arbitrary or self-interested use of that power; (3) the absence of any other constitutional check on the exercise of that power; (4) the clarity of the framers’ intent with regard to using impeachment for this purpose; and (5) the weight of the evidence as described in this series of posts.

It is not necessary at this juncture to decide whether the evidence of Trump’s actions and statements regarding the pardon power actually warrant impeachment. It is only required to decide that the evidence is enough (more than enough, IMHO) for the House to open an impeachment inquiry, which is also the only way in which Congress can effectively exercise oversight with respect to the pardon power.

The president’s unlimited discretion to grant clemency is based on the assumption he will exercise his power with prudence and serious deliberation. It is apparent that President Trump has fallen far short of that standard. Whether this fact alone, under our current circumstances, warrants impeachment or whether the evidence establishes with sufficient clarity the use of the pardon power for self-interested or corrupt purposes, are the questions that the House should seek to answer in its inquiry. Should it turn out that the inquiry does not produce sufficient evidence to support impeachment, the worst that happens is that the president will have the benefit of some sorely-needed adult supervision in this area of his presidency.