Michael Cohen has testified that President Trump directed him to lie to Congress about Trump’s business dealings with Russia during the campaign. The weakness of the accusation is that Cohen does not seem to have any proof, other than his own testimony, that the conversation took place. But now CNN reports that Cohen has evidence of Trump obstructing justice by dangling a pardon. And this time he has receipts.
Robert Costello, an attorney working with Rudy Giuliani, emailed Cohen on April 21. The emails assured Cohen he could “sleep well tonight” because he had “friends in high places,” according to CNN.
This is a really, really big deal. The power to pardon convicted criminals for federal crimes is a legitimate use of presidential authority. Whether it’s legitimate for the president to use this power to pardon criminals who committed crimes on his behalf, or might have otherwise testified against him, is a subject of intense debate.
What’s not a subject of intense debate is whether a president can dangle a pardon. As Alex Whiting explained, the argument for why a president can pardon his own subordinates is that it’s a public act, and the voters can examine the facts and look at whether the president acted corruptly in issuing the pardon. “As long as it remained secret,” he notes, “it could be done without incurring any of the political downstream consequences that come with actually pardoning someone.”
Even as staunch an advocate of presidential authority as William Barr agreed in his confirmation hearings that dangling pardons could be obstruction of justice. “Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?” asked Senator Pat Leahy. “No. That would be a crime,” replied Barr.
Barr, of course, almost certainly got his job because he wrote a long, unsolicited memo aggressively defending the president from charges of obstructing justice. If not even Barr can defend the dangling of a pardon, it’s safe to say that legal opinion will be unanimous.