pardon obstruction
Can use of a pre-emptive pardon also be illegal obstruction of justice?
<p>It seems well established that the President does indeed have the right to preemptively pardon people for crimes they have not yet been convicted of, so that is <strong>not</strong> my question.</p>

<p>Right now there are news reports that President Trump is asking his staff how his power of pardon works. The speculation by media pundits is that he might use it as a <em>preemptive pardon</em> to derail the investigation by Special Counsel Mueller. Since a Special Counsel is confined to investigating only "criminal matters", if any target of the investigation were to be so pardoned it would seriously hobble certain courses of inquiry.</p>

<p>So my question is: If President Trump used his power of pardon preemptively on a <strong>known</strong> target of an investigation -- and it was <em>very clear</em> that the reason for doing so was to prevent further investigation (imagine a tweet that same day saying "This ends the unfair and fake witchhunt by Mueller!" -- would that action be able to be considered <em>obstruction of justice</em> under the law?</p>

<p>From the <a href="https://www.law.cornell.edu/wex/obstruction_of_justice" rel="nofollow noreferrer">Cornell Law School website</a>:</p>

<blockquote>
  <p>A person obstructs justice when they have a specific intent to obstruct or interfere with a judicial proceeding. For a person to be convicted of obstructing justice, they must not only have the specific intent to obstruct the proceeding, but the person must know (1) that a proceeding was actually pending at the time; and (2) there must be a nexus between the defendant’s endeavor to obstruct justice and the proceeding, and the defendant must have knowledge of this nexus. </p>
</blockquote>

<p>Allow me to provide another, hypothetical, scenario for comparison: </p>

<p>Let's say that a State DA is investigating a public official who has been accused of raping someone. Along the way the DA discovers that a convicted murderer on death row has crucial evidence related to his investigation which would clear the public official of all charges. Unfortunately the man is scheduled to be executed in 3 days so the DA goes to the governor and asks for a temporary <em>stay of execution</em> so he can use the man's testimony to close the case. The poblic official is a political enemy of the governor so he decides to deliberately refuse the request for a stay and the execution goes forward as scheduled, thereby <strong>destroying evidence</strong> that might have been used for exoneration.</p>

<p>Is the governor guilty of obstructing justice?</p>

<hr>

<p><strong>EDIT</strong></p>

<p>This edit is to clarify and prevent excess discussion on something that has started to become a minor discussion thread below. It is certainly relevant to understanding the eventual Answer but it is only tangential to the specific Question asked: </p>

<p>The <em>Office of Special Counsel</em> is an evolution from the Nixon-era caused <a href="https://en.wikipedia.org/wiki/United_States_Office_of_the_Independent_Counsel" rel="nofollow noreferrer"><em>Independent Counsel Act</em></a> which was (deliberately) allowed to expire in 1999 due to unanticipated flaws. To replace it a set of Federal Regulations, <a href="https://www.gpo.gov/fdsys/pkg/CFR-2001-title28-vol2/pdf/CFR-2001-title28-vol2-part600.pdf" rel="nofollow noreferrer"><strong>28 CFR 600</strong> "GENERAL POWERS OF
SPECIAL COUNSEL"</a>, was created (also in 1999) by the Justice Department to establish the role of the Special Counsel for cases where the DOJ might be investigating matters that have or appear to have conflict of interest issues.</p>

<p>The tangential matter related to the above Question is whether or not the President can personally fire the Special Counsel. Apparently the President could <em>order</em> the Atty Gen to fire the Special Counsel, but the President cannot <em>directly</em> fire him <em>unless</em> the DOJ was first to go through the involved process of modifying 28 CFR 600.7(d) or alternatively repealing the entire Part 600 set of Federal Regulations. </p>

<blockquote>
  <p>[28 CFR 600.7] "(d) The Special Counsel may be disciplined or removed from office only by the  personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal."</p>
</blockquote>

<p>Former Acting Solicitor General, Neal Katyal, helped draft PART 600 and explains in <a href="https://www.washingtonpost.com/posteverything/wp/2017/05/19/politics-could-still-block-muellers-investigation-i-know-i-wrote-the-rules/?utm_term=.586f57029114" rel="nofollow noreferrer">this article</a> how it was designed to work. </p>

<p>The short answer is <strong>no</strong>. The President has plenary and absolute power to pardon anyone other than himself, before or after conviction, of any federal crime.</p>
<p>Therefore, his constitutional exercise of this power, whatever its motive, can not constitute a crime, although it could be a ground for impeaching the President or retaliating against the President politically.</p>
<p>In historical practice, Presidents and Governors have been increasingly loathe to use the pardon power, and tend to use it only when they are political lame ducks, precisely because the political costs of a pardon can be so high.</p>
<p>UPDATE:</p>
<p>Also, to be clear, a President cannot pardon a crime before it is committed, so a true &quot;pre-emptive pardon&quot; does not exist. A President can pardon a crime that has not produced a conviction, but that is very different from pardoning a crime that has not yet occurred.</p>
<p>Further, a pardon does not relieve an individual of civil liability, for example, monetary liability to another private individual, for the same conduct, or of state criminal law liability. It extends only to federal crimes and the civil collateral consequences of any conviction of that crime if there has been a conviction of that crime.</p>
<p>For example, a pardon relieves the person pardoned from collateral consequences such as a prohibition on possessing a firearm, a loss of the right to vote, or a prohibition on the right to engage in a licensed occupation that felons are prohibited from being licensed to perform.</p>
<p>But, a pardon does not relieve the person pardoned, for example, of engaging in wire fraud, of civil liability for money damages to the person defrauded.</p>
<p>Similarly, while one can pardon a criminal contempt conviction, in which a court punishes someone with incarceration or a fine for violating a court order, a pardon can not relieve someone from a civil contempt citation which imposes incarceration or a per day fine (usually) until someone complies with a court order that it is within the power of that person to comply with (e.g. an order directing someone to testify in a civil lawsuit or to turn over the password to a Swiss bank account).</p>

<p>I focus on the crime of obstruction of justice, given an explicit definition in <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-73" rel="nofollow noreferrer">Ch. 73 of Title 18</a>. I think the Cornell synopsis is good enough for most cases, and this would not be most cases. Various sections look (by title) like they might be applicable, such as <a href="https://www.law.cornell.edu/uscode/text/18/1503" rel="nofollow noreferrer">§1503</a>, <a href="https://www.law.cornell.edu/uscode/text/18/1510" rel="nofollow noreferrer">§1510</a> or <a href="https://www.law.cornell.edu/uscode/text/18/1519" rel="nofollow noreferrer">§1519</a>. For 1503 to be relevant, the actor must act (a) "<a href="https://www.law.cornell.edu/uscode/text/18/1515" rel="nofollow noreferrer">corruptly</a>, or by threats or force, or by any threatening letter or communication", and this is about proceedings, not investigations. 1510 (a) says</p>

<blockquote>
  <p>Whoever willfully endeavors by means of bribery to obstruct, delay, or
  prevent the communication of information relating to a violation of
  any criminal statute of the United States by any person to a criminal
  investigator shall be fined under this title, or imprisoned not more
  than five years, or both.</p>
</blockquote>

<p>So not relevant, since the prevention of communication of information has to be "by means of bribery". 1519 starts</p>

<blockquote>
  <p>Whoever knowingly alters, destroys, mutilates, conceals, covers up,
  falsifies, or makes a false entry in any record, document, or tangible
  object</p>
</blockquote>

<p>but rendering an investigation moot is not affecting a tangible thing. The one plausible path w.r.t. obstruction is <a href="https://www.law.cornell.edu/uscode/text/18/1505" rel="nofollow noreferrer">§1505</a>, which rather broadly points to anyone who</p>

<blockquote>
  <p>corruptly...influences, obstructs, or impedes... the due and proper
  exercise of the power of inquiry ... by either House</p>
</blockquote>

<p>The act would be corrupt if one were</p>

<blockquote>
  <p>acting with an improper purpose, personally or by influencing another,
  including making a false or misleading statement, or withholding,
  concealing, altering, or destroying a document or other information</p>
</blockquote>

<p>To obtain a criminal conviction, it would have to be proven beyond a reasonable doubt that the purpose was something improper. Your proposed tweet esp. from this POTUS would have virtually no probative value, since it does not establish any purpose, just a result. A written memo saying something like "Crap, Mueller is gonna find out about JK's criminal activities and that's gonna get me imprisoned, so I need to put an end to this with a blanket pardon" could do it. Moreover, the kinds of acts described under "corruption" do not clearly extend to "granting a pardon": a pardon does not withhold, conceal, alter or destroy any information, it just affects the legal basis for compelling such information.</p>

<p>Consider the case where an attorney manages to quash a subpoena, with the purpose in mind that his client not be convicted of an actual criminal act. That means of preventing a particular line of inquiry is legal. Such legal conduct cannot be deemed obstructive on the grounds that it legally thwarts a line of investigation.</p>

<p>One source states:</p>

<blockquote>
  <p>Obstruction could occur, for instance, if the President suggested
  publicly that he might pardon a White House aide who was under
  investigation, which could signal an obstructive quid pro quo--the
  target's silence about the President's illicit involvement in exchange
  for the President's pardon.</p>
</blockquote>

<p><a href="http://scholarship.law.wm.edu/wmborj/vol16/iss3/4/" rel="nofollow noreferrer">Luke M. Milligan, <em>The "Ongoing Criminal Investigation" Constraint: Getting Away with Silence</em>, 16 Wm. &amp; Mary Bill of Rts. J. 747, 777 n.133 (2008).</a></p>

<p>And for some historical perspective:</p>

<blockquote>
  <p>If Watergate had any lesson, it was that when someone connected to the
  White House is heading for prison, it is dangerous for the president
  or those close to him to even think about--not to mention talk
  about--clemency.</p>
  
  <p>After all, the March 1, 1974 indictment of Mitchell, Haldeman,
  Ehrlichman and Chuck Colson (who pled guilty, rather than risk a
  trial) charged each of them with a conspiracy to obstruct justice by
  offering to provide clemency to those involved in the Watergate
  break-in. In addition, as Nixon's tapes showed, the president
  discussed pardons on several occasions, and this abuse of power was
  included in the bill of impeachment against him that was pending when
  he resigned.</p>
</blockquote>

<p><a href="http://supreme.findlaw.com/legal-commentary/the-bush-administrations-dilemma-regarding-a-possible-libby-pardon.html" rel="nofollow noreferrer">John W. Dean, <em>The Bush Administration's Dilemma Regarding a Possible Libby Pardon-And How Outsiders Such as Fred Thompson Appear to Be Working on a Solution</em>, FindLaw, June 1, 2007.</a></p>
