News that one of President Trump’s lawyers allegedly told lawyers for Michael Flynn and Paul Manafort in secret that the president might pardon them has caused renewed interest in the question: Can the pardon power become an instrument to obstruct justice? The answer is: Of course it can.
Think of a simple scenario. The president is asked to pardon a criminal and is given a bribe to induce the act. Would that mean that the bribe had not been a crime because the president has virtually unlimited and unreviewable pardon power under Article II of the Constitution? Of course not. The person pardoned may remain pardoned, but the president in that scenario took a bribe—and that was a criminal act (remember that VP Spiro Agnew resigned in disgrace for taking bribes—the office doesn’t inoculate criminals.)
There is no question that the framers intended the pardon power to be one of the most sweeping granted the president. Alexander Hamilton explained the rationale in Federalist No. 74 this way: “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed,” he wrote. “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
So no court can review a pardon; Congress cannot undo a pardon. The power is “unfettered and unembarrassed.” However, that does not mean that it can be used in the commission of a crime by the chief executive.
Take the Watergate example. In that case, the offer of a pardon was dangled in front of defendants to assure their silence in a criminal proceeding. This act, as part of a cover-up, was widely considered to be an obstruction of justice.
Consider Article 9 of the Articles of Impeachment adopted by the House Judiciary Committee in 1974, which spelled out various “high crimes and misdemeanors” of President Nixon, including the following: “endeavoring to cause prospective defendants, and individuals duly tried and convicted, to expect favored treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.”
The reference is, in part, to activity of Richard Nixon with his adviser Charles Colson in January 1973. Colson’s friend and fellow Brown University alum, E. Howard Hunt, was in deep trouble. Hunt was one of the leaders of the burglars who had broken into the Democratic National Committee headquarters in the Watergate complex.
Hunt left a mountain of incriminating evidence in his hotel room at the Watergate and had been arrested and indicted. He faced trial starting in the second week of January 1973 before a federal judge known for his severe sentencing, John J. Sirica (Hamilton would have labeled him “Sanguinary John.”).
Howard Hunt’s troubles were compounded by the sudden and tragic death of his wife in a plane crash in Chicago in December 1972. She had been the pay-mistress for the hush money delivered to the arrested burglars to keep them from testifying in their criminal case. She had $10,000 in cash in her purse when her plane went down short of the runway at Chicago Midway Airport, crashing into a nearby neighborhood.
Hunt still had young children. He worried that if he went to trial and Judge Sirica threw the book at him, his children would be effectively orphaned. In his despair, he asked his lawyer, William Bittman, to meet with Colson to ask for the promise of a pardon so he could plead guilty and avoid the trial.
Colson, against the advice of others in the White House, met with Bittman and in a kind of Mafioso way assured Bittman that “Christmas comes once a year,” meaning Hunt, like Jimmy Hoffa a year earlier, could expect a pardon after spending some time in prison. Bittman understood the allusion. He had been one of the prosecutors who put Hoffa in jail; Nixon pardoned Hoffa on December 23, 1971.
Colson’s subsequent meeting with Nixon in the Executive Office Building was captured on tape, with Nixon clearly agreeing to the pardon.
Hunt then pled guilty and the four “Cuban” burglars took it as a sign that they, too, would be pardoned, so they followed suit, pleading guilty, and remaining silent. The trial progressed against Gordon Liddy and James McCord, the wireman burglar and former CIA operative. Both were found guilty by a jury.
As the time approached for Judge Sirica to sentence all the defendants, young John Dean, Nixon’s White House Counsel, met in private with Richard Nixon to warn him that there was a “cancer growing on his presidency.” The tape of the conversation (Tape 886-8) is instructive on the use of pardons in a cover-up.
After some preliminaries, Dean told Nixon that he, Dean, has been obstructing justice by being a conduit for the hush money—“taking care of people out there who are guilty of crimes.” He then advised the president that he had an obstruction problem with the offer of clemency to Hunt.
Dean called the president’s position on the pardon “untenable.” He illustrated his point: “You know, the Watergate hearings [before the Senate] just over,” Dean said, “Hunt now demanding clemency or he’s going to blow. And politically, it’d be impossible for you to do it.”
Nixon agreed: “That’s right.”
“I’m not sure that you’ll ever be able to deliver on clemency,” Dean continued. “It may be just too hot.”
“You can’t do it until after the  elections, that’s for sure,” Nixon ventured. “But even then… your point is that even then you couldn’t do it.”
“That’s right,” Dean responded. “It may further involve you in a way you shouldn’t be involved in this.”
“No,” Nixon replied, “it’s wrong. That’s for sure.”
The point is simple; even a scheming Nixon recognized it. If Donald Trump offers clemency to keep someone from testifying or providing evidence to authorities, it is an obstruction of justice. The key is the intent. If it is done with “corrupt” intent, as the obstruction statute labels it, then it is a crime and can be the basis for an article of impeachment.
James D. Robenalt, author, January 1973, Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever. He lectures nationally with John Dean on Watergate. His new book, Ballots and Bullets, Black Power Politics and Urban Guerrilla Warfare in 1968 Cleveland, will be published July 1.