Trump and Dowd may have attempted to obstruct justice with pardons.

The New York Times is reporting today that Dowd, Trump’s personal lawyer, floated the offer of pardons to Manafort and Flynn, implicitly some kind of deal for their silence.

“But even if a pardon were ultimately aimed at hindering an investigation, it might still pass legal muster, said Jack Goldsmith, a former assistant attorney general in the George W. Bush administration and a professor at Harvard Law School.

“There are few powers in the Constitution as absolute as the pardon power — it is exclusively the president’s and cannot be burdened by the courts or the legislature,” he said. “It would be very difficult to look at the president’s motives in issuing a pardon to make an obstruction case.”

The remedy for such interference would more likely be found in elections or impeachment than in prosecuting the president, Mr. Goldsmith added.”

I respectfully disagree, for reasons I’ve explained before here and following up counterarguments here. If a president could be guilty of selling pardons (bribery, surely!), he could be guilty of offering pardons to obstruct justice.

I still don’t think a president can be indicted while in office. Impeach and remove first, then prosecute. But I do think John Dowd could be in serious trouble. Attorney-client privilege does give him the privilege to attempt to obstruct justice.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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