Unpacked: Presidential pardons and obstruction of justice

U.S. President Donald Trump pauses as he talks to journalists who are members of the White house travel pool on board Air Force One during his flight to Palm Beach, Florida while over South Carolina, U.S., February 3, 2017. REUTERS/Carlos Barria     TPX IMAGES OF THE DAY - RC1E3D1572C0
Editor's note:

In Unpacked, Brookings experts provide analysis of Trump administration policies and news. Subscribe to the Brookings Creative Lab YouTube channel to stay up to date on the latest from Unpacked.

THE ISSUE: In just over a year, the Russia investigation has resulted in 35 guilty pleas or indictments. With the investigation entering its second year, questions remain about whether a presidential pardon of former advisors like Michael Flynn or Paul Manafort would constitute obstruction of justice, and if those charges might lead to an impeachment.

“If a president were to issue pardons in order to block an investigation […], that would constitute obstruction of justice.”

The things you need to know:

  • A president is bound by the same laws as the rest of us.
  • If a president were to issue pardons in order to block an investigation for a wrongful purpose—like a president protecting himself because he believed that someone who was pardoned would disclose incriminating evidence against that president—that would constitute obstruction of justice.
  • Congress has said that it is a crime in the United States to obstruct justice.
  • There’s a debate over whether a sitting president can be prosecuted.
  • Another option would be for the Department of Justice to refer the case to Congress. With (or without) a report, Congress could have hearings in the House Judiciary Committee as to whether a president committed obstruction of justice by giving a pardon with corrupt intent to himself or those around him.
  • Trump’s frequent use of pardons has broader implications.
  • Many analysts and advisers to President Trump have reported that President Trump is delighted by his power to pardon, viewing it as a sign of unconstrained authority.
  • Trump may be issuing pardons strategically, “dangling” pardons before witnesses who might testify against him to disincentivize them from cooperating with investigations.
  • The signal of impunity this may send to witnesses, subjects, targets, and defendants participating in special counsel Robert Mueller’s investigation is profoundly troubling.

The sources:

On Michael Flynn’s resignation

Presidential obstruction of justice: The case of Donald J. Trump