(Bloomberg View) -- If John Dowd discussed the possibility of a presidential pardon with lawyers for Michael Flynn and Paul Manafort while Dowd was serving as Donald Trump’s personal lawyer, it’s a big deal -- definitely for Dowd, and conceivably for Trump.
The president has the inherent power to pardon anyone he wants. But doing so with a corrupt reason -- such as saving the president’s skin -- would be obstruction of justice.
Supposing that Dowd acted after conversations with Trump, the chain of obstruction would lead back to the president. And even if Dowd acted on his own initiative, he himself could be guilty of obstruction of justice.
Start with an important caveat: This episode is unlikely to lead to Trump’s being impeached or charged with a crime. What we know so far is that someone (or rather three someones) told the New York Times that Dowd discussed the possibility of pardons with lawyers for Flynn, the former national security adviser, and Manafort, Trump’s former campaign chairman, while both were being investigated by special counsel Robert Mueller.
Dowd, who resigned last week as the president’s lead lawyer for Mueller’s investigation, denies the allegations. If they can credibly be shown to be true, they wouldn’t on their own be enough to put Trump in the hot seat. Trump could say that Dowd never discussed the pardons with him. And it would be very difficult to get Dowd to testify against Trump, who was his client at the time.
Technically, what Dowd may have said to other lawyers outside Trump’s presence isn’t likely to be covered by attorney-client privilege between Dowd and Trump. And if a lawyer and a client together conspire to commit a crime, it’s not impossible for prosecutors to break privilege. In theory, it isn’t totally impossible that Dowd could be made to testify against Trump.
In reality, however, it would be unusual for prosecutors to flip a criminal defense lawyer against a client -- and all the more so when the client is the U.S. president.
Practically, then, Dowd’s future is more on the line than Trump’s. If he was waving the possibility of a pardon before Flynn and Manafort in order to induce them not to cooperate with Mueller, then he was corruptly trying to influence and obstruct the course of justice.
Dowd has defenses available to him other than the denial he has already issued. He could, for example, say that he was not in any way suggesting that Trump would confer a pardon as part of a corrupt deal to stop Flynn and Manafort from cooperating. He could insist that by mentioning the pardon, he was just reviewing possible options.
There’s something even plausible about that notion: Everyone on earth was speculating about whether Trump might pardon close associates. We know that Trump told then-FBI Director James Comey that Flynn was a good guy. Assuming that Trump meant it, the speculation about a possible pardon was perfectly reasonable.
There’s no law against telling a potential defendant’s lawyer that his client might ultimately be pardoned. Proving that Dowd was implicitly offering some sort of deal to the lawyers for Flynn and Manafort would be pretty difficult. So while Dowd should be hiring his own lawyer today, he probably doesn’t have to fear for his liberty, at least not yet.
That’s the thing about obstruction of justice that would operate through the president’s exercise of authority that would otherwise be lawful. It’s not only that there’s a robust debate about whether such activity could legally be prosecuted as a crime. What really matters is that in practice, it would be very hard to prosecute without concrete evidence of corrupt intent like a quid pro quo.
Of course, obstruction of justice can also be a high crime or misdemeanor for purposes of impeachment, as it was for President Bill Clinton and as it would have been for President Richard Nixon had he not resigned.
But the president’s lawyer isn’t the president. Dowd can’t be impeached, because he isn’t and wasn’t a public official. Conceivably, he could be pressured to testify in a Senate impeachment trial.
But there, as in a criminal trial, it would be risky business to force a criminal defense lawyer to testify against his client. The precedent is terrible. And lawyers like to stick together and look out for the interests of their profession. (OK, our profession.)
The true takeaway from Wednesday’s allegations is that there’s something deeply problematic about a situation in which the president’s personal lawyer was talking to lawyers for the president’s aides -- about anything at all. The president’s power to pardon makes any such conversations into a double-edged sword.
Even if Dowd never mentioned the pardon and never discussed it with Trump, the mere fact of communication raises the implicit possibility of a deal to protect the president in exchange for a pardon. This is what lawyers mean when they warn that criminal investigation begets more criminal investigation. Regardless of whether Flynn or Manafort have anything useful that they might or might not say to Mueller, the investigation of their conduct is already tainting the president.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”
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