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06/17/2017

Special Counsel Mueller Would Face Big Legal Obstacles in Establishing that President Trump Obstructed the FBI Investigation of General Flynn
Andrew Hyman

It appears that Special Counsel Robert Mueller is exploring whether to launch a full investigation into whether President Donald Trump obstructed an FBI probe into alleged wrongdoing by retired Lieutenant General Michael Flynn, due to statements and actions by Trump after firing Flynn as National Security Advisor several months ago.  Perhaps the biggest obstacle in Mueller's way is that the pardon power includes lesser powers, such as the power to commute sentences, and more pertinently the power to halt prosecution, technically called a nolle prosequi, which presidents have been using since the time of George Washington.  Some of that history is described in a 2017 law review article by law professor Peter Markowitz.  Likewise, according to law professor Akhil Amar, it was recognized as long ago as 1798 that, "The president's greater power to pardon subsumed the lesser power to simply decline prosecution."  The main difference between a nolle prosequi and a full pardon is that the former does not prevent eventual prosecution, whereas the latter does.

As we all know from recent news reports, Trump not only fired Flynn a few months ago, but also fired ex-FBI director James Comey last month, and Comey then testified to Congress that the FBI's Flynn investigation was
separate from the FBI's investigation into Russian interference with the 2016 election. Trump has denied that Comey's lack of leniency toward Flynn was among the reasons why he fired Comey, and Trump has also denied ordering Comey to back off of the Flynn investigation.  Apparently, the investigation of Flynn is focusing on whether he omitted some material when he filled out federal forms, and also whether his company (Flynn Intel Group) engaged in some improper business dealings with Turkey, and perhaps Russia too.

This whole situation raises many issues as to the original meaning of federal regulations (e.g. those involving appointment of a special counsel), the original meaning of statutes (e.g. those involving obstruction of justice), and the original meaning of the Constitution (e.g. the pardon power and the impeachment power). Below, I would just like to make a few more comments about the pardon power and how it relates to obstruction of justice. If the Special Counsel ultimately decides to argue that there was obstruction of justice, it is unlikely that charges would be filed against a sitting president, and the matter would likely go to Congress for consideration of impeachment; Congress would then have broad discretion about how to proceed. But, I think it would be very improper to make such a referral to Congress unless it is possible for the Special Counsel to provide evidence that Trump would have been obstructing justice even if Trump had pardoned Flynn.

One could argue that Gerald Ford "obstructed justice" when he pardoned Richard Nixon, but most everyone agrees that Ford had no corrupt motive. A closer case involved 
Bill Clinton's 2001 pardon of fugitive Marc Rich. Rich's ex-wife, Denise Rich, had made a $450,000 donation to Mr. Clinton's presidential library and more than $100,000 to Mrs. Clinton's Senate campaign. Comey was in charge of the FBI probe into the Rich pardon from 2003 until Comey closed the case in 2005 without action.  If Mueller were to find such a quid pro quo between Trump and Flynn then maybe that would negate the nolle prosequi power, but that would be doubtful given that the pardon power has very few limits (one of which is that the behavior being pardoned must be past behavior rather than future behavior).

According to a Washington Post analysis, "At any point in time, Trump could extricate Flynn from any perceived judicial witch hunt, granting him immunity for any federal crimes." Perhaps the Post has not heard of nolle prosequi.  If Trump did something far less than pardoning Flynn, such as discussing leniency toward Flynn with Comey, then I do not see any problem for Trump, notwithstanding the Post's position that the pardon power must either be used fully or not at all.  Even if Comey's lack of leniency toward Flynn was one of the reasons why Trump fired Comey (which Trump has denied), that would seem well within the President's power, via either the pardon power or the power to hire and fire. A Special Counsel would have to produce substantial evidence of presidential corruption to have any chance of overcoming those presidential powers, and even then it is very doubtful that impeachment can be used to punish use of the pardon power.  It is well-established that that power encompasses lesser powers, such as the lesser power to commute, and (more pertinent here) the lesser power to decline prosecution.