WASHINGTON
— A lawyer for President Trump broached the idea of Mr. Trump’s
pardoning two of his former top advisers, Michael T. Flynn and Paul
Manafort, with their lawyers last year, according to three people with
knowledge of the discussions.
The
discussions came as the special counsel was building cases against both
men, and they raise questions about whether the lawyer, John Dowd, who
resigned last week, was offering pardons to influence their decisions
about whether to plead guilty and cooperate in the investigation.
The
talks suggest that Mr. Trump’s lawyers were concerned about what Mr.
Flynn and Mr. Manafort might reveal were they to cut a deal with the
special counsel, Robert S. Mueller III, in exchange for leniency. Mr.
Mueller’s team could investigate the prospect that Mr. Dowd made pardon
offers to thwart the inquiry, although legal experts are divided about
whether such offers might constitute obstruction of justice.
Mr.
Dowd’s conversation with Mr. Flynn’s lawyer, Robert K. Kelner, occurred
sometime after Mr. Dowd took over last summer as the president’s
personal lawyer, at a time when a grand jury was hearing evidence
against Mr. Flynn on a range of potential crimes. Mr. Flynn, who served
as Mr. Trump’s first national security adviser, agreed in late November
to cooperate with the special counsel’s investigation. He pleaded guilty
in December to lying to the F.B.I. about his conversations with the
Russian ambassador and received favorable sentencing terms.
Mr.
Dowd has said privately that he did not know why Mr. Flynn had accepted
a plea, according to one of the people. He said he had told Mr. Kelner
that the president had long believed that the case against Mr. Flynn was
flimsy and was prepared to pardon him, the person said.
The
pardon discussion with Mr. Manafort’s attorney, Reginald J. Brown, came
before his client was indicted in October on charges of money
laundering and other financial crimes. Mr. Manafort, the former chairman
of Mr. Trump’s presidential campaign, has pleaded not guilty and has
told others he is not interested in a pardon because he believes he has
done nothing wrong and the government overstepped its authority. Mr.
Brown is no longer his lawyer.
It is unclear whether Mr. Dowd discussed the pardons with Mr. Trump before bringing them up with the other lawyers.
Mr.
Dowd, who was hired last year to defend the president during the
Mueller inquiry, took the lead in dealing directly with Mr. Flynn’s and
Mr. Manafort’s lawyers, according to two people familiar with how the
legal team operated.
He denied on Wednesday that he discussed pardons with lawyers for the president’s former advisers.
“There were no discussions. Period,” Mr. Dowd said. “As far as I know, no discussions.”
Contacted
repeatedly over several weeks, the president’s lawyers representing him
in the special counsel’s investigation maintained that they knew of no
discussions of possible pardons.
“Never
during the course of my representation of the president have I had any
discussions of pardons of any individual involved in this inquiry,” Jay
Sekulow, a lawyer for Mr. Trump, said on Wednesday.
Ty
Cobb, the White House lawyer dealing with the investigation, added, “I
have only been asked about pardons by the press and have routinely
responded on the record that no pardons are under discussion or under
consideration at the White House.”
Mr. Kelner and Mr. Brown declined to comment.
During
interviews with Mr. Mueller’s investigators in recent months, current
and former administration officials have recounted conversations they
had with the president about potential pardons for former aides under
investigation by the special counsel, according to two people briefed on
the interviews.
In
one meeting with lawyers from the White House Counsel’s Office last
year, Mr. Trump asked about the extent of his pardon power, according to
a person briefed on the conversation. The lawyers explained that the
president’s powers were broad, the person said. And in other meetings
with senior advisers, the president raised the prospect of pardoning Mr.
Flynn, according to two people present.
Legal
experts are divided about whether a pardon offer, even if given in
exchange for continued loyalty, can be considered obstruction of
justice. Presidents have constitutional authority to pardon people who
face or were convicted of federal charges.
But
even if a pardon were ultimately aimed at hindering an investigation,
it might still pass legal muster, said Jack Goldsmith, a former
assistant attorney general in the George W. Bush administration and a
professor at Harvard Law School.
“There
are few powers in the Constitution as absolute as the pardon power — it
is exclusively the president’s and cannot be burdened by the courts or
the legislature,” he said. “It would be very difficult to look at the
president’s motives in issuing a pardon to make an obstruction case.”
The
remedy for such interference would more likely be found in elections or
impeachment than in prosecuting the president, Mr. Goldsmith added.
But pardon power is not unlimited, said Samuel W. Buell, a professor of law at Duke University.
“The
framers did not create the power to pardon as a way for the president
to protect himself and his associates” from being prosecuted for their
own criminal behavior, he said.
Under
Mr. Buell’s interpretation, Mr. Dowd’s efforts could be used against
the president in an obstruction case if prosecutors want to demonstrate
that it was part of larger conspiracy to impede the special counsel
investigation.
Mr.
Dowd is said to believe that the president has nearly unlimited pardon
authority, but he and others have repeatedly insisted that no pardon
offers have been made.
In July, amid reports that Mr. Trump was considering granting pardons to his associates under investigation, Mr. Dowd told BuzzFeed that “there is nothing going on on pardons, research — nothing.”
And about two weeks after Mr. Flynn’s guilty plea, Mr. Trump said that such talk was premature.
“I
don’t want to talk about pardons for Michael Flynn yet,” Mr. Trump told
reporters on Dec. 15 on the South Lawn of the White House. “We’ll see
what happens. Let’s see. I can say this: When you look at what’s gone on
with the F.B.I. and with the Justice Department, people are very, very
angry.”
Mr.
Trump has been preoccupied with the investigation into Mr. Flynn since
at least early last year. In February 2017, alone in the Oval Office
with the F.B.I. director at the time, James B. Comey, the president
asked him to end the investigation, Mr. Comey told lawmakers. After that
episode became public, Mr. Mueller was appointed by the Justice
Department to be the special counsel.
On the day after Mr. Flynn pleaded guilty, the president wrote in a Twitter post said to be composed by Mr. Dowd that he fired Mr. Flynn for, among other things, lying to the F.B.I. But Mr. Trump continued to publicly defend his former national security adviser, saying two days later that he felt “very badly” for Mr. Flynn and that the F.B.I. had “destroyed his life.”
It
is not clear what Mr. Flynn has told the special counsel as part of his
cooperation agreement. During interviews with other witnesses, Mr.
Mueller’s investigators have focused on what Mr. Flynn told the
president about his calls during the transition with the Russian
ambassador to the United States at the time, Sergey I. Kislyak. The
calls came soon after the Obama administration announced new sanctions
on Russia for its role in disrupting the 2016 presidential campaign.
Mr.
Manafort, who ran Mr. Trump’s presidential campaign for several months,
has been indicted on dozens of counts of money laundering and other
financial crimes connected to his work as a lobbyist and former
consultant for Viktor F. Yanukovych, who at the time was president of
Ukraine. The charges are not connected to any work that Mr. Manafort did
for Mr. Trump.
Rick
Gates, who was Mr. Manafort’s business partner for years and also
served as deputy chairman of the Trump presidential campaign, pleaded guilty
last month as part of a cooperation agreement with Mr. Mueller’s team.
On the day the plea agreement was announced, Mr. Manafort vowed to
continue to fight the charges against him.
In total, 19 people have been
charged with crimes by Mr. Mueller. Five of them, including Mr. Flynn
and two other Trump associates, have pleaded guilty and have agreed to
cooperate.
In August, Mr. Trump pardoned Joe Arpaio,
the former sheriff from Arizona who had been found guilty of federal
criminal contempt for refusing to stop targeting Latinos in traffic
stops and other law enforcement efforts. The pardon prompted an outcry
because Mr. Arpaio, whose crackdown on illegal immigration made him a
national symbol for both conservatives and liberals, had supported Mr.
Trump’s run for president.
Mr.
Trump’s only other pardon came this month, for a sailor who had pleaded
guilty to unlawfully retaining national defense information and
obstruction of justice after he took cellphone photos on a nuclear
submarine and then destroyed the photos when he learned he was under
investigation.
When
announcing the pardon, Sarah Huckabee Sanders, the White House press
secretary, said that Mr. Trump appreciated the sailor’s “service to the
country.”
Michael S. Schmidt, Mark Mazzetti and Adam Goldman reported from Washington, and Jo Becker and Maggie Haberman from New York. Matt Apuzzo contributed reporting from Washington.
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