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.