Charting How Pardons and Obstruction of Justice Works

The president’s pardon power serves as an important corrective to the criminal justice system, but it can also be abused, like any government power. President Donald Trump appears to be debating with his lawyer Rudy Giuliani and the White House Counsel whether he should pardon Paul Manafort, erasing his convictions of last week in Virginia and blocking the upcoming second prosecution in Washington, D.C. While a pardon at this time would be perceived by many as obstruction of justice, it should be clear that even Mr. Trump’s dangling the prospect of a future pardon is already potentially obstructive, as it appears designed to encourage Manafort to hang tough and not cooperate with prosecutors. A proper exercise of the pardon power required President Trump to say nothing about the appropriateness of investigating, prosecuting or convicting Manafort or to discuss a possible pardon, but that is not the path Mr. Trump has chosen. In a New York Times Op-ed, we spell out what strategies the president may be employing and why dangling a pardon may be even more an affront to the administration of justice than granting one today.

We thought it would also be helpful to display our analysis graphically. Below is a Table that illustrates the costs and benefits to President Trump with the two approaches: dangling a pardon or issuing a pardon. The important point is to see how both approaches threaten the Mueller investigation and why both involve an obstruction of justice and abuse of power.

Does our analysis raise any questions for you? We will be answering readers questions in a follow-on piece at Just Security. Readers are welcome to send questions to either of us via Twitter or by email at info@justsecurity.org. [Editor’s note: Alex and Ryan’s follow-on piece is now available.]

 

 

About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.