Unpacked: Presidential pardons and obstruction of justice

Unpacked: Presidential pardons and obstruction of justice

By Norman Eisen

THE ISSUE: In just over a year, the Russia investigation has resulted in 35 guilty pleas or indictments. With the investigation entering its second year, questions remain about whether a presidential pardon of former advisors like Michael Flynn or Paul Manafort would constitute obstruction of justice, and if those charges might lead to an impeachment.

“If a president were to issue pardons in order to block an investigation […], that would constitute obstruction of justice.”

The things you need to know:

  • A president is bound by the same laws as the rest of us.
  • If a president were to issue pardons in order to block an investigation for a wrongful purpose—like a president protecting himself because he believed that someone who was pardoned would disclose incriminating evidence against that president—that would constitute obstruction of justice.
  • Congress has said that it is a crime in the United States to obstruct justice.
  • There’s a debate over whether a sitting president can be prosecuted.
  • Another option would be for the Department of Justice to refer the case to Congress. With (or without) a report, Congress could have hearings in the House Judiciary Committee as to whether a president committed obstruction of justice by giving a pardon with corrupt intent to himself or those around him.
  • Trump’s frequent use of pardons has broader implications.
  • Many analysts and advisers to President Trump have reported that President Trump is delighted by his power to pardon, viewing it as a sign of unconstrained authority.
  • Trump may be issuing pardons strategically, “dangling” pardons before witnesses who might testify against him to disincentivize them from cooperating with investigations.
  • The signal of impunity this may send to witnesses, subjects, targets, and defendants participating in special counsel Robert Mueller’s investigation is profoundly troubling.

The sources:

On Michael Flynn’s resignation

Presidential obstruction of justice: The case of Donald J. Trump

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