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The Nolle Prosequi Power of Vice President Mike Pence
Andrew Hyman

According to reports this week, the President’s former personal attorney, John M. Dowd, said in March to the Office of Special Counsel: “This isn’t some game. You are screwing with the work of the president of the United States.”  Dowd was a well-known litigator before representing Trump, and his opinion should not be taken lightly.

If Dowd’s assessment is accurate (emphasis upon “if”), and the long investigation of Trump has thus far not turned up any significant evidence of election collusion between Trump and Russia nor any significant obstruction of justice by the president, then we may be nearing  a point where Vice President Mike Pence could spring into action.  So, I would like to now hark back to two related blog posts that I wrote here, and connect them together.

First, as I wrote here in August 2017, the original meaning of the pardon power very probably does not allow a president to pardon himself, but there is widespread agreement that section three of the Twenty-Fifth Amendment does empower the vice-president to pardon the president.   While such a pardon would unquestionably be legitimate, it could have substantial stigmatizing effects upon both Pence and Trump.

Which brings me to another blog post I wrote here in June 2017.  I wrote: “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….The main difference between a nolle prosequi and a full pardon is that the former does not prevent eventual prosecution, whereas the latter does.”  

Putting two and two together, the Twenty-Fifth Amendment  gives the Vice-President power to grant the president  a nolle prosequi, allowing the president to, as Dowd put it, not be screwed with while he is still in office.  Such a move would not prevent investigation and prosecution of former President Trump once he leaves office (nor would it prevent Pence from granting to Trump a full pardon near the end of Trump’s time in the White House).

In fairness to both Dowd and Special Counsel Mueller,  Dowd not only reportedly said that Mueller’s office was “screwing” with the president’s work, but also said: "We had a terrific relationship with Mueller — the best that I can recall in my 50 years of practice….It was terrific, completely open, people trusted each other, and we had no misunderstandings."  Not knowing how exactly to reconcile Dowd’s two statements, I have no opinion about whether Pence should use his nolle prosequi power.  I am only saying he has it, under the Constitution as ratified in 1789, and as amended in 1967.