Obstruction of Justice and the Capitol Riot

More than 600 individuals have been criminally charged for taking part in the assault on the U.S. Capitol on January 6, 2021. Of those, more than 200 have been charged with felony obstruction of justice for interfering with Congress’s certification of the presidential election results. A number of the defendants have raised legal challenges to this charge, and at recent hearings federal judges have expressed some concerns.

The January 6 defendants argue that the obstruction law has never been used in a case like this. That’s true, because there’s never been another case like this – not since the War of 1812, anyway. But that doesn’t mean a statute specifically written to prohibit impeding the work of Congress does not apply to the Capitol riot. Although the unprecedented events of January 6 raise some novel issues, the obstruction of justice charge comfortably fits those events and should be upheld.

Obstruction of Justice and the Capitol Riot

The government charged many Capitol rioters with obstruction under 18 U.S.C. 1512(c), which provides:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

In particular, many of those who stormed the Capitol to “stop the steal” are charged under subsection (c)(2) with corruptly obstructing or impeding the official Congressional proceeding to certify the presidential election results.

A number of defendants — including several of those charged in the Oath Keepers conspiracy case, the largest conspiracy case arising from the riot —  have raised various challenges to the 1512(c) charge. They argue the statute should be interpreted narrowly to apply only to conduct akin to shredding documents or otherwise destroying evidence. They claim that the joint Congressional session to certify the election results was not an “official proceeding” within the meaning of the statute. And they argue the statute is unconstitutionally vague because it fails to indicate clearly what kind of actions will justify such felony charges, when others who took part in this riot or in other Capitol protests are charged only with misdemeanors or are not prosecuted at all.

The Origins of 1512(c)

Title 18, Section 1512 is titled “Tampering with a Witness, Victim, or Informant” and was first passed in 1982. Historically, as the name suggests, 1512 was a witness tampering statute. It applied to those who tried to obstruct a proceeding by influencing some third party. That included conduct such as killing or injuring a witness, using force or threats to persuade someone not to testify, or otherwise corruptly causing another person to conceal information from a proceeding.

Section 1512(c), quoted above, was added to the statute in 2002 as part of the Sarbanes-Oxley reforms enacted in the wake of the Enron scandal. But this new section doesn’t really rest comfortably within 1512. Although the rest of 1512 prohibits a defendant from obstructing a proceeding by doing something to someone else, the new 1512(c) is a broad catch-all prohibition that applies to obstruction carried out by a defendant himself. After the addition of section (c), therefore, 1512 – despite its title – was no longer limited to witness tampering.

Arthur Andersen logo

The Legacy of Arthur Andersen

To understand why Congress added 1512(c), you have to start with the Arthur Andersen case. The accounting giant Andersen was the auditor for Enron, the energy company that collapsed in 2001 in the largest corporate fraud in U.S. history. Andersen was indicted in 2002 for obstruction of justice for shredding millions of pages of documents related to its work for Enron. The shredding went on for weeks as stories about Enron’s troubles appeared in the press, the Securities Exchange Commission made preliminary inquiries, and the stock price plummeted. When the SEC finally opened an official investigation and subpoenaed Andersen for documents, it stopped the shredding.

Title 18 section 1505 is the obstruction of justice statute that directly applies to investigations by agencies like the SEC. But that statute requires that a proceeding was already pending at the time of the obstruction. Prosecuting Andersen under 1505 was not an option because when it was shredding the Enron documents the official SEC proceeding had not yet begun. 

So prosecutors charged Andersen under the old version of 1512, the witness tampering statute. Section 1512 specifically provides that a proceeding does not have to be pending at the time of the alleged obstruction. The government’s theory was that Andersen corruptly persuaded its own employees to destroy evidence relevant to the SEC’s upcoming investigation.

This was a pretty awkward theory because it’s kind of circular: an entity like Andersen can only be prosecuted based on the actions of its agents. But prosecutors were alleging that Andersen was corruptly persuading its own agents to obstruct the proceeding, which then resulted in Andersen being liable for their actions. This convoluted charge became a major issue at Andersen’s trial, with the defense mocking the theory and questioning who exactly was supposed to be the corrupt persuader. It nearly derailed the prosecution. (Andersen was convicted but the Supreme Court later threw out the conviction on other grounds.)

Congress Closes the Andersen Loophole

Arthur Andersen and Enron were very much on Congress’s mind when it passed the Sarbanes-Oxley Act; indeed, that bill was largely motivated by Enron’s collapse. Section 1512(c) was not part of the original bill but was added later as an amendment. The legislative history demonstrates that Senators thought it was a necessary addition to close the “loophole” revealed by the Andersen case. As Senator Trent Lott put it:

Current law prohibits obstruction of justice by a defendant acting alone, but only if a proceeding is pending and a subpoena has been issued for the evidence that has been destroyed or altered….

So this section would allow the Government to charge obstruction against individuals who acted alone, even if the tampering took place prior to the issuance of a grand jury subpoena. I think this is something we need to make clear so we do not have a repeat of what we saw with the Enron matter earlier this year.

This is exactly the problem that was highlighted by the Andersen case, and Congress wanted to remove that problem. One way to do it – probably a better way — would have been to amend section 1505 to remove the pending proceeding requirement.  Instead, Congress added a new prohibition against obstructing justice to 1512, which does not require a pending proceeding. That did solve the Andersen problem: under the new 1512(c) Andersen could have been charged with obstruction itself and not with corruptly persuading its employees to obstruct. But it also ended up sticking a broad, catch-all prohibition on all obstruction of justice into a statute that, up to that point, had been focused only on witness tampering. That’s led to some controversy about the proper scope of 1512(c) – including the issues raised by the defendants in the Capitol riot.

Fishing boat

The Argument For a Narrow Interpretation: Yates v. United States

The defendants argue that 1512(c) should be read narrowly to apply only to obstructive conduct akin to the destruction of evidence — the kind of conduct that motivated passage of Sarbanes-Oxley. This argument doesn’t find much support in the plain text of the statute, which broadly prohibits any attempts to “obstruct, influence, or impede” a proceeding. But the defendants claim that the Supreme Court’s 2015 decision in another obstruction case, Yates v. United States, indicates that 1512(c) does not apply to their actions. The judges considering the defense motions to dismiss reportedly have expressed some interest in the idea that Yates might be relevant here. But that argument is misplaced.

Yates involved a different statute, 18 U.S.C. 1519, also passed as part of the Sarbanes-Oxley reforms. Yates was a fishing captain who was cited for catching undersized grouper in the Gulf of Mexico. He was instructed to preserve the fish as evidence until he returned to port, but instead he destroyed them. He was prosecuted under 1519 which provides:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Yates claimed this statute did not apply to his conduct because a fish was not a “tangible object” with the meaning of this statute. He argued that because 1519 was passed as part of the Sarbanes-Oxley reforms, it was primarily concerned with offenses like document shredding, such as that done by Arthur Andersen. In context, therefore, he said the term “tangible object” should be limited to objects similar to documents and records – objects that contain information. In a 5-4 decision, the Supreme Court agreed and reversed his conviction.

The Capitol riot defendants have argued that 1512(c), like 1519, should be interpreted in light of Congress’s purpose when enacting the Sarbanes-Oxley reforms.  Congress was primarily concerned with corporate misconduct and destruction of evidence. Section 1512(c)(1) clearly refers to that kind of conduct. Accordingly, they argue, the “otherwise” clause of 1512(c)(2) should likewise be narrowed to cover only conduct similar to the destruction of documents and records.

But virtually none of the Court’s reasoning in Yates translates to 1512(c). First, the Court in Yates noted that 1519 was a stand-alone statute that appeared toward the end of the chapter on obstruction of justice, alongside other statutes that more narrowly focus on specific kinds of conduct, not on obstruction generally. The Court also focused on some of the verbs in 1519, such as “covers up, falsifies, or makes a false entry in,” noting that although those verbs applied to tangible objects similar to documents and records, it was not possible to, for example, make a false entry in a fish. As for the nouns – “record, document, or other tangible object,” the Court held that rules of statutory construction dictate that when a general term like “tangible object” appears at the end of a list, it should be interpreted to be similar to the earlier terms in that list. 

None of those arguments work with 1512(c). First, 1512(c) is not a new stand-alone statute dealing with a specific kind of obstruction and appearing at the end of the chapter, it is an amendment to an existing general obstruction statute that applies in all kinds of proceedings. Second, the “otherwise” clause in 1512(c)(2) is in a different section of the statute from (c)(1). A separate section like (c)(2) is not a continuation of a single list of words, so the statutory interpretation tools applied in Yates don’t apply. In fact, the plain meaning of “otherwise” in (c)(2) suggests just the opposite: a different category of obstruction, not simply another variation on what has come before.

The Court in Yates also noted the title of 1519 – “Destruction, alteration, or falsification of records” – supported its holding that “tangible object” should be limited to objects similar to documents and records. The Capitol riot defendants have made a similar argument, noting that the title of 1512, “Tampering with a Witness, Victim, or Informant”, suggests the statute should have a narrower scope. But as noted above, the section in question here was added to 1512 long after it was first passed, and with the expressly stated purpose of expanding the scope of the statute beyond just witness tampering.

I think Yates was wrongly decided, as I argued here. And with the changes in the makeup of the Court, I think a majority today would more likely agree with Justice Kagan’s dissent arguing that the plain language of the statute should govern: a tangible object is simply an object that’s tangible, fish included. But regardless, Yates deals with a very different statute and is of limited use when considering the crime at issue here.

The Breadth of 1512(c)

One of the stronger arguments in favor of the narrower reading advocated by the defense is that without it (c)(2) becomes a sweeping, catch-all obstruction of justice statute that basically subsumes all others.  Crimes that could be charged under other, older obstruction statutes, such as 18 U.S.C. 1503 and 1505, other portions of 1512, and many charges under 1519, all could be charged under 1512(c)(2). The defendants argue that Congress would not make such a sweeping change by amending 1512. A similar argument was adopted by the Court in Yates; it said “tangible object” needed to be narrowly construed or else 1519 would overlap completely with 1512(c).

This argument would have more force if the obstruction of justice statutes were not already such a mess. Even before the Sarbanes-Oxley amendments, the statutes overlapped and duplicated each other considerably. For example, Section 1503 contains specific prohibitions against corruptly interfering with a judge or juror but then contains the so-called “omnibus clause” prohibiting any corrupt endeavor to impair, obstruct or impeded the due administration of justice – which subsumes all the specific prohibitions that come before and renders them unnecessary. Witness tampering under the old version of 1512 could frequently also be charged under 1503 or 1505, so long as the proceeding was already pending.

Congress added 1512(c) as a last-minute amendment. Perhaps it didn’t focus on the full sweep of the amendment or its effect on other statutes. But the plain language of the amendment they passed does operate as a broad, general prohibition on obstruction in all forms and in all types of proceedings. I’ve been telling my students for years that 1512(c)(2) is now pretty much the only obstruction statute a prosecutor needs. The fact that it overlaps with other obstruction statutes is not unusual, and is not a reason to disregard the plain language of the statute.

The Argument Over “Official Proceeding”

A number of the defendants have argued that the joint session of Congress to certify the election results is not an “official proceeding” within the meaning of section 1512. They claim that for purposes of the obstruction of justice statutes, “official proceeding” should be limited to adjudicatory or investigative hearings, where evidence is being heard and facts or rights being determined. Because the certification of the election results is largely a formality, they claim, it should not be considered an “official proceeding” for purposes of 1512.

(Side note: Donovan Crowl, one of the defendants in the Oath Keepers conspiracy case, actually argues that he can’t be charged with obstructing a Congressional proceeding because Congress had recessed by the time he entered the Capitol.  Well, yes – it had recessed because the Capitol was being attacked and the Members had to get to safety!  This argument reminds me of the old story about the kid who murders his parents and then asks the court for mercy because he’s an orphan.)

Title 18 U.S.C. 1515 defines “official proceeding” for purposes of section 1512 as including proceedings before courts and administrative agencies as well as “a proceeding before the Congress.” There is no further definition. As the government points out in its opposition, this plain language cuts against the defendants’ argument. The joint session of Congress to certify the election results is required by both the U.S. Constitution and by federal law. That certainly makes it seem “official.” It also is a “proceeding” as that term is commonly understood: the body in question coming together to do business.

Cases that have considered whether something qualifies as a “proceeding” have usually focused on the degree of formality present. For example, FBI investigations have been held not to be “proceedings” because they are informal and unstructured. “Proceeding” connotes some kind of official function that has a formal environment, a specific purpose, a defined beginning and end, and that takes place according to certain rules. An informal gathering of legislators chatting in the cloakroom or on a factfinding trip would lack this degree of formality and would not be considered an “official proceeding” of Congress. But the required joint session of Congress to certify the election meets the formality requirements.

Even if “official proceeding” were limited to adjudicatory proceedings as the defendants suggest, the joint session of Congress should qualify. As the government notes, the session involves finding facts being in the form of tallying the votes. Formal rules govern the process. Members may speak and object and may be overruled. There is a presiding officer – the Vice President — who controls the proceedings, akin to a judge. The joint session includes many aspects of an adjudicatory, fact-finding proceeding.

Suppose someone threatened a Member of Congress to force her to object to a particular state’s electoral votes, or forged the records of the electors from a state and submitted those false votes as part of the official count. Surely those acts would qualify as obstruction of an official proceeding. Participating in a riot to shut down the entire process should qualify as well.

Usually, in statutory interpretation, if the plain language of the statute is clear that’s the end of the inquiry. And there’s no logical reason Congress would want to protect, say, a routine subcommittee hearing from disruption but not protect the constitutionally-mandated joint session to certify the election.

The Vagueness Argument

The defendants also argue that the obstruction of justice statute, as applied to their conduct, is unconstitutionally vague. The vagueness doctrine applies when it would be unclear to the average person what the law prohibits, or when a statute is so standardless that it invites arbitrary or discriminatory enforcement.

The vagueness argument boils down to this: the defendants had no reason to suspect that participating in a riot where hundreds stormed the Capitol, broke doors and windows, scaled walls, forced their way past barricades, and assaulted scores of police officers — all with the goal of intimidating Congress and stopping it from certifying the election results — might violate a statute that prohibits corruptly interfering with the work of Congress. Merely stating the argument highlights how absurd it is.

The defendants argue that the term “corrupt” in section 1512 renders the statute impermissibly vague. They claim it is unclear what kind of conduct is “corrupt” and thus what will distinguish obstruction of Congress from lesser misdemeanor offenses, such as disorderly conduct in Congress, with which many of the rioters are also charged.

But the requirement of corrupt intent is common in criminal statutes. In white collar crimes, corrupt intent is frequently what distinguishes perfectly legal conduct from criminal activity. For example, if I shred the files in my own office because I’m decluttering, that’s perfectly legal. If I shred those same files with the corrupt intent to destroy them because they’ve been subpoenaed by a grand jury, that same conduct now becomes obstruction of justice.

Corrupt intent is commonly defined as acting with wrongful, immoral, evil, or depraved purpose. Juries are instructed on this all the time, as an element of the offense that they must find beyond a reasonable doubt. As the government pointed out in its opposition, the presence of corrupt intent is what distinguishes the acts of these defendants from legitimate political protests or other legitimate attempts to influence the Congress. It will be the government’s burden to prove that corrupt intent at trial. And the requirement that the government prove wrongful, evil or depraved intent prevents the statute from sweeping too broadly and provides adequate notice to the public concerning the kind of conduct that is prohibited.

Is Obstruction of Congress Different?

The defendants argue that Congress is different, and the statute is therefore more vulnerable to a vagueness argument, because there are many legitimate ways to try to influence Congress, including peaceful protests or lobbying. A statute that criminalizes only corrupt attempts to influence Congress, they argue, fails to provide adequate notice concerning what is allowed and what is not.

But this issue is not unique to Congress. Section 1512 also criminalizes corruptly trying to influence court proceedings. There are people who try to influence court proceedings every day – they’re called lawyers. The efforts of advocates to influence the courts are obviously not criminal. But if an attorney acts with corrupt intent by, for example, deliberately filing false pleadings, tampering with evidence or witnesses, or engaging in other improper behavior, that attorney can be prosecuted.

Part of what is going on here is the attempt to rewrite history and cast the Capitol rioters as simply political protestors. The defendants repeatedly characterize their actions on January 6 as political protest and speech. They claim that if they can be prosecuted for obstruction, others engaged in legitimate First Amendment activities will fear future prosecution as well. But the factual distinctions between legitimate political protest and the unprecedented events of January 6 are clear. They indicate the presence of corrupt intent, which can readily be found by a jury.

As far as I’m aware, no court has ever held that the corrupt intent requirement of section 1512 renders that statute unconstitutionally vague. The Supreme Court discussed the corrupt intent requirement of 1512 in the Arthur Andersen case but never suggested that the requirement rendered the statute vague. And defendants who participated in a violent assault like this one are in a very poor position to argue they had no idea they might be subject to prosecution for disrupting the work of Congress.

“Just Trust Us”

Statutes can also be found impermissibly vague if they are so standardless that they invite discriminatory or arbitrary enforcement. In these cases that argument has taken the following form: with many of the rioters, the government charged them only with misdemeanors, such as disorderly conduct or unlawfully entering a federal building. It’s not clear, the defendants argue, why they are charged with felony obstruction and others are not. And that, they claim, renders the statute vague as applied to them.

During recent hearings challenging the obstruction charge, two federal judges reportedly told prosecutors they were concerned about this issue, noting that prosecutors were essentially saying “trust us,” we will only bring the obstruction charge in cases where the conduct was really bad. This may have just been judicial musing from the bench, because on closer examination the criticism doesn’t make much sense.

We do, in fact, trust prosecutors every day to make decisions about what kind of charges are appropriate, based on the facts of particular cases. That’s a large part of a prosecutor’s job. Suppose a prosecutor has evidence that a contractor handed a politician a bag full of money. We trust the prosecutor to decide what to charge, based on whether she thinks she can prove the payment was part of a corrupt quid pro quo and therefore bribery, or just a thank-you payment for an official act and thus the lesser crime of gratuities, or maybe just a misdemeanor supplementation of salary offense under 18 U.S.C. 209 — or no crime at all. That charging decision involves the prosecutor making a judgment about the facts and what she can prove about the defendant’s intent.

If there is an allegation of insider trading, we trust prosecutors to determine whether they can prove it was a “willful” violation and therefore subject to criminal prosecution, or whether it should just be left to civil enforcement by the SEC. If there is a homicide, we trust the prosecutor to determine whether the appropriate charge is first degree murder, second degree, manslaughter, or something else, based on the level of intent.

The same is true for the Capitol riot cases. The facts of these cases and the roles of individual defendants vary widely. It’s the prosecutors’ job to review the evidence and determine which ones, in their view, demonstrate corrupt intent justifying the obstruction charge. That could be based on violence, the amount of time inside the Capitol or the areas they entered, or on other acts by particular defendants demonstrating the wrongful and evil intent required.

And it’s not true, of course, that this means simply trusting the prosecutors’ judgment on these questions. It ultimately will be the prosecution’s responsibility to prove the element of corrupt intent to the jury, which acts as a check on that decision. And if defendants believe they have evidence that prosecutors are making those choices for an improper reason, such as targeting particular defendants for their political views rather than their actions, they can make an appropriate motion and a judge can decide.

This is not to say that prosecutors always do a perfect job when making these decisions. But there is nothing at all unusual about prosecutors examining the facts and deciding which cases justify a more serious felony charge. And the fact that prosecutors make those charging decisions does not mean statutes are impermissibly vague.

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The Looming Presidential Pardons

Despite the frivolous lawsuits and cries that the election was “stolen,” president Trump will leave office on January 20, 2021. Almost as certain as his departure is that he will grant a flurry of pardons on his way out the door, perhaps including trying to pardon himself. Given the breadth of the pardon power, there is little that can be done about that. Such pardons, even if controversial, will almost certainly be valid – with the possible exception of a self-pardon. But despite his anticipated best efforts, Trump will not be able to completely shield his family and colleagues – or himself – from future legal liability.

Source and Scope of the Pardon Power

Article II, Section 2 of the U.S. Constitution gives the president the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This clause traces its roots to the power to grant clemency that English kings had for centuries. It’s an important part of our system of checks and balances, allowing the president to correct mistakes or perceived excesses in the justice system or simply to grant forgiveness in appropriate cases. Other than excluding impeachment, the Constitution contains no limits on this presidential power.

Although often referred to by the shorthand “pardon power,” this clause gives the president the ability to grant other forms of clemency as well, such as a commutation or reduction of sentence. For example, in the recent case of Roger Stone, president Trump commuted Stone’s 40-month sentence to keep him out of prison but did not grant him a full pardon. Similarly, president George W. Bush commuted the sentence of White House aide Scooter Libby for his role in the Valerie Plame/CIA leak case but refused to grant Libby a pardon, despite the vigorous objections of Libby’s boss, Dick Cheney.

A pardon represents presidential forgiveness for federal crimes that have been, or may have been, committed. It does not expunge any convictions or seal the recipient’s record, and the recipient still stands convicted. But a pardon removes collateral consequences that may flow from a conviction, such as restrictions on the right to own a firearm or the right to vote. A person whose sentence is commuted but who is not pardoned still bears those other consequences. That’s why someone who has merely had their sentence commuted might seek a full pardon later. Trump pardoned Scooter Libby a decade after Bush had refused to do so, and it seems likely Trump will pardon Stone now that the election is over.

Another difference is that a commutation or reduction of sentence can only come into play if the recipient has actually been convicted and sentenced to some form of punishment. A pardon, on the other hand, may be granted even if a person has not yet been convicted of anything – Gerald Ford’s pardon of Richard Nixon being the most famous example.

A presidential pardon may only cover crimes that have already been committed. A president cannot grant a sort of prospective immunity, authorizing someone to engage in future criminal acts by granting them a blanket pardon.

Most significantly for Trump, the president may only grant pardons for federal crimes. He cannot pardon anyone for state offenses.  If an individual receives a presidential pardon, a state generally is still free to prosecute that individual for the same acts if they also constitute state crimes.

Trump’s Use of the Pardon Power

Trump’s use of the pardon power has been controversial. For the most part, he has bypassed the system set up within the Department of Justice and the Office of the Pardon Attorney for reviewing petitions for clemency. He has been more likely to grant clemency based on appeals by a Fox News host, political ally, or other personal connection. His more controversial pardons include Libby, Arizona Sheriff Joe Arpaio, and conservative activist Dinesh D’Souza. He was roundly condemned, including by many in the military, for pardoning soldiers convicted of committing war crimes in Afghanistan, after their cause was promoted on Fox News. Trump also commuted the sentence of former Illinois Governor Rod Blagojevich, who was serving a fourteen-year sentence after being convicted of multiple counts of corruption.

Former president Bill Clinton
Former president Bill Clinton

Pardons as a President Leaves Office

It’s not unusual for presidents to grant a number pardons as they are getting ready to leave office. Some of those pardons have been controversial. Bill Clinton pardoned fugitive financier Mark Rich on his last day in office. The FBI later investigated that pardon based on allegations it may have been granted in exchange for large donations to Democrats and the Clinton presidential library by Rich and his wife, although no criminal charges were ever filed. Clinton also pardoned his own brother, Roger, for a minor drug offense.

As he was about to leave office, George H.W. Bush pardoned six defendants about to go to trial over the Iran-Contra affair, including former defense secretary Casper Weinberger. Independent counsel Lawrence Walsh was outraged, suggesting the pardons might constitute obstruction of justice and that Bush acted to prevent information about his own involvement in the scandal from being revealed. (In an interesting historical twist, Bush’s move was supported by then-attorney general William Barr.)

So Trump certainly would not be the first president to raise some eyebrows with his parting pardons. But no previous president has ever had the potential to pardon so many of his own family members or close associates, including many who could potentially implicate the president himself in criminal activity. And no president has tried to pardon himself – although Nixon reportedly considered it.

Michael Flynn
Michael Flynn

Who Might Receive a Pardon?

The Mueller Defendants

The first likely recipients of a Trump pardon are those convicted as a result of the Mueller investigation. Trump, of course, has repeatedly attacked that investigation. His attorney general, William Barr, misled the public about Mueller’s report and has worked to undermine prosecutions that resulted, including by seeking to dismiss the Michael Flynn case and intervening in the sentencing of Roger Stone. It would be easy for Trump to justify these pardons by claiming they were all the result of the illegitimate Mueller “witch hunt.” Such pardons would have the added benefit for Trump of rewarding those who could potentially implicate him in wrongdoing and ensuring their continued loyalty.

Flynn seems like a prime candidate for such a pardon. Barr’s DOJ has tried to drop the charges against him after he pleaded guilty to lying to the FBI. The case remains mired in litigation over whether the trial judge must grant the government’s flawed motion to dismiss. By moving to drop the charges, Barr tried to free Flynn while allowing Trump to avoid taking the political heat of granting a pardon prior to the election. Now that the election is over, those political concerns are gone. Given the history, it frankly would be shocking if Trump did not pardon Flynn.

Roger Stone is another likely candidate. Trump commuted his sentence as he was about to report to jail, but now that the election is over look for Trump to bump that commutation up to a full pardon. Stone remained loyal by lying to Congress to protect Trump and refusing to cooperate even when prosecuted for those lies. Expect him to be further rewarded with a full pardon.

The outlook for other Mueller defendants is more cloudy. At times Trump has expressed sympathy for his former campaign manager Paul Manafort, who was convicted of money laundering and related financial crimes based on his work in Ukraine. Manafort pleaded guilty in a second case and agreed to cooperate with Mueller, but ended up lying to Mueller’s investigators. Trump and Manafort were reportedly never that close, but Trump might still pardon him just to take a shot at Mueller. The same is true for deputy campaign manager Rick Gates. Other lesser Russiagate players such as George Papadopoulos might be pardoned as well, again if for no other reason than to try to erase any results of the Mueller probe.

Other Former Insiders

Trump’s former personal attorney Michael Cohen almost certainly does not expect a pardon. Cohen was convicted of fraud and other charges in New York in a case that was spun off from the Mueller probe. His plea notably included a campaign finance charge for the payoff to Stormy Daniels that Cohen says was made at Trump’s direction. He potentially has a great deal of information that could implicate the president. But Cohen has completely turned against Trump, writing a harshly critical book and regularly criticizing him on cable news. He has said he doesn’t want a pardon, and he’s almost certainly going to get his wish.

Other former insiders have legal troubles of their own, but have also fallen out of Trump’s favor. For example, former presidential advisor Steve Bannon is now facing a federal fraud indictment for his involvement in a bogus fundraising scheme related to building Trump’s border wall. Bannon was once the consummate insider, but has also been critical of Trump since leaving the White House. Don’t expect him to receive any presidential clemency.

Donald Trump Jr.
Donald Trump Jr.

Trump Family Members

Up to this point we’ve been considering those who have already been charged or convicted. But Trump could also pardon individuals who have not yet been charged with anything, including members of his own family. For example, he could issue pardons for his son Don Jr. and son-in-law Jared Kushner for any crimes committed in connection with the 2016 presidential campaign and possible cooperation with Russia in its efforts to influence that campaign, or for any cover-up crimes related to the later investigations by Mueller and by Congress.

It’s not clear Don Jr. or Kushner want or need any such pardons; Mueller did not find that they had any criminal liability. But Mueller was not able to obtain all the information that he sought, and other facts could come to light under a new administration. Trump might be interested in issuing a sort of prophylactic pardon for any criminal acts related to Russia, the campaign, or the subsequent investigations, just as a precaution. On the other hand, he might conclude that issuing such pardons could make it sound like there was something to the “Russia hoax” after all.

Those who have not been charged or convicted could be reluctant to accept a pardon because they might think it would mean admitting they had done something  wrong. But as I discussed in this earlier post, the view that accepting a pardon means you are admitting  guilt is now generally discredited. For example, if a president were to pardon someone convicted of murder and then exonerated by DNA evidence, we clearly wouldn’t say that defendant is admitting he is guilty if he accepts the pardon. Trump family members and associates could easily claim they have done nothing wrong but will accept the pardons just to prevent a future, vindictive Democratic administration from pursuing baseless allegations.

Other Possible Pardons

There are other investigations that Trump could potentially try to head off by granting pardons. Not all of them are public, so it’s hard to know the full scope of what he could do here. For example, an investigation into financial misconduct related to the 2016 Trump inauguration may still be pending in the U.S. Attorney’s Office for the Southern District of New York. There could be other investigations pending within that office related to potential financial crimes by the Trump Organization. Presidential attorney Rudy Giuliani is reportedly still under investigation for some of his overseas business activities. To the extent there are such investigation still ongoing, Trump could short-circuit them by simply pardoning everyone who is under scrutiny.

Could Granting the Pardons Be a Crime?

It’s legally possible for granting a pardon to be a criminal act;  for example, if a president granted a pardon in exchange for a bribe. During the Mueller investigation there were allegations that Trump attorneys had dangled the possibility of pardons in front of witnesses to encourage them not to cooperate. As I wrote here, had that been established I think it could constitute bribery. Similarly, granting a pardon to head off an investigation into the president himself could potentially constitute obstruction of justice. But at this late stage, proving the requisite corrupt intent to make any of Trump’s parting pardons a potential crime would be extremely difficult.

Can Trump Pardon Himself?

The great unanswered question is whether Trump can pardon himself. Trump has claimed he has that right, but most legal experts disagree. The Office of Legal Counsel in Nixon’s Department of Justice opined that a president could not self-pardon. But no court has ever ruled on the question, and that OLC opinion is not binding on Trump. He could be the first president to test this legal proposition.  

For example, Trump could pardon himself for any obstruction of justice he may have committed during the Mueller investigation – probably his most clear-cut criminal exposure. If a Biden Department of Justice then tried to indict him for that obstruction – a big “if” — Trump would raise the pardon as a defense and move to dismiss. That would seem like a legal question destined to be decided by the Supreme Court.

Again, Trump may be reluctant to grant himself a pardon if he thinks it makes him look guilty. But he could easily rationalize it by saying he has done nothing wrong but needs to protect him from future unjustified “witch hunts.”

Trump and Pence
Mike Pence with President Trump

The Possible Pence Gambit

Trump could also engage in some more complicated gymnastics to seek to ensure that he receives a valid pardon. For example, he could resign the presidency prior to Biden’s inauguration. Mike Pence would then become president, with the power to pardon Trump.

Imagine this scenario: Over the next few weeks, Trump pardons his family members, associates, and anyone else who needs it, perhaps including Pence himself. Trump then resigns on the morning  of January 20, a few hours before Biden is inaugurated. Pence is sworn in and becomes president for the morning, and issues the pardon to Trump. It sounds crazy, but a lot of crazy things have happened over the past four years.

Trump could also act under the 25th Amendment to declare himself temporarily unable to perform the duties of president. That would make Pence the acting president until Trump declares himself fit again, and Pence could grant the pardon.  Of course, if Trump’s declaration was found to be a fabrication, that could call any such pardon into question.

It’s unclear whether Trump is interested in pardoning himself, or whether he would be willing to take the more dramatic step of resigning early to allow Pence to pardon him. It’s also unclear whether Pence, who has to think about his own political future, would agree to go along.

State Charges and Civil Cases

The most ominous aspect of all this for Trump is his inability to grant pardons for state charges. New York District Attorney Cyrus Vance has been conducting a grand jury investigation of Trump and the Trump Organization for the past couple of years and has been fighting to obtain Trump’s tax returns. The Supreme Court ruled in his favor last spring; the matter is now back before the Court and he is likely to prevail once again.  Vance has indicated that possible charges include not just the Stormy Daniels hush money payments but also bank fraud, insurance fraud, or tax fraud.

These potential state charges pose a real risk to Trump, and as president he can’t really do anything about them. If he does end up facing any criminal charges after he leaves office, New York state is the most likely source.

Trump also can’t pardon his way out of the many civil cases against him that may be pending or may be brought in the future, such as the defamation case by E. Jean Carroll, a woman who claims Trump sexually assaulted her. These can’t result in criminal convictions, of course, but could require Trump to pay damages or face other civil sanctions.

It will be very interesting to see what Trump does in the next couple of months. The expected flurry of pardons may turn out to be maddening and even shocking – another entry in the catalogue of outrages from this administration. But despite the awesome power of the presidency, Trump will be unable to shield himself and those around him from all potential legal consequences after he leaves office.

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