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Trump's lawyer may have obstructed justice if he floated pardons for Flynn and Manafort

In obstruction cases, an attempt is enough; actually going through with it is not required to bring the charges.

by Taylor Dolven
Mar 29 2018, 4:15pm

If pardons were dangled for Michael Flynn and Paul Manafort in the Russia probe, the president’s lawyer and the president himself might be looking at obstruction of justice charges.

President Trump’s then-lawyer John Dowd last summer discussed a presidential pardon with lawyers for former national security adviser Flynn and Trump campaign manager Manafort, people familiar with the conversations told the New York Times and the Washington Post in stories published Wednesday. As we know, Flynn pleaded guilty to lying to the FBI and is cooperating with special counsel Robert Mueller, while Manafort refused a deal and is fighting the charges against him, fueling speculation that he may have taken Dowd up on a pending pardon offer.

If Dowd did float the pardon idea with lawyers for Flynn and Manafort as leverage to convince them not to cooperate with Mueller, it could amount to an obstruction of justice charge for Dowd, and for Trump, too, if he knew about it. In obstruction cases, an attempt is enough; actually going through with it is not required to bring the charges. Dowd resigned last week.

“Discussing the possibility of a pardon could at the very least create the appearance of an attempt to tamper with witnesses in the Russia investigation,” former U.S. Attorney Barbara McQuade wrote for The Daily Beast. “Even if Dowd’s intentions were solely to reward Trump aides for their past service to the President, discussing pardons with potential witnesses at that point was reckless because of the unlawful impression it could make, putting Trump at greater risk of being charged with obstruction of justice.”

Flynn pleaded guilty in December to two charges of lying to the FBI about contacts he had with Russians during the 2016 presidential campaign; he faces up to five years in prison. Manafort has been charged with money laundering, bank fraud, and tax evasion unrelated to Russian meddling in the U.S. 2016 election, which is the main focus of the broadening probe; he faces up to 300 years behind bars.

Dowd denies he ever offered the pardons. And Trump’s attorney Jay Sekulow and the White House lawyer dealing with Mueller’s office, Ty Cobb, deny pardons were ever discussed.

If Trump does pardon anyone charged in the ongoing investigation, it wouldn’t be the first controversial presidential pardon. President Richard Nixon’s vice president, Gerald Ford, preemptively pardoned Nixon as soon as he took office after Nixon was forced to resign amid the Watergate investigation, creating another scandal. President George H. W. Bush pardoned several former administration officials involved in the Iran-Contra scandal when he was vice president. President Bill Clinton pardoned a former Whitewater real estate partner Susan McDougal, who refused to cooperate with the independent counsel during the federal Whitewater investigation.

Intent is the key to figuring out if a pardon, or the suggestion of a pardon, qualifies as obstruction. Paul Begala, counsel to former President Bill Clinton, doubted a lawyer as experienced as Dowd would discuss pardons. “If true, and that’s a big if, Dowd might be in big trouble,” he said.

“If he pardons Flynn or Manafort because he’s a 68-year-old man facing 300 years in prison, that’s fine,” Begala said. “Presidents pardon guilty people all the time. If the intent is to obstruct a federal investigation, then it becomes obstruction of justice.”

Cover image: In this April 29, 2011, file photo, attorney John Dowd walks in New York. (AP Photo/Richard Drew, File)

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