Pardon offers? Trump Russia interference violates Constitution and his oath In the Russia probe, Trump already has violated constitutional limits on interference for self-interest. Pardon offers would be another flagrant example.

John McKay and Joyce Vance | Opinion contributors

Show Caption Hide Caption Trump as the 'subject' of the Mueller Probe Special counsel Robert Mueller has informed President Donald Trump's attorneys that the president is not currently considered a criminal target in the Russia investigation, according to a person familiar with the conversation. (April 4)

Political interference in a law enforcement matter for personal and corrupt purposes — whether through pardons or personnel moves or directing the conduct of an investigation — is unconstitutional. That’s why it is so concerning that John Dowd, when he was one of President Trump’s lawyers, reportedly discussed the possibility of pardons for Michael Flynn and Paul Manafort with their lawyers.

Was Dowd suggesting pardons in order to influence the pair’s decisions about whether to plead guilty and cooperate in special counsel Robert Mueller’s investigation? If an offer to pardon was made with intent to influence potential witnesses, it would be the most recent example of the president’s repeated efforts to influence the investigation into Russia’s interference with the 2016 election and possible collusion with his campaign.

Trump appears to believe, as he claimed in an interview last year, that he has an “absolute right to do what I want to do with the Justice Department,” even to the point of interfering in an investigation of him and his associates. That’s not how our Constitution works.

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We are former federal prosecutors who served under George W. Bush (McKay) and Barack Obama (Vance), and we are aware of the harm that comes from political interference with law enforcement. One of us was even fired as a result of such political interference.

As a U.S. Attorney in Washington, John McKay investigated and found no evidence of voter fraud in the 2004 governor’s election in that state, which the Republican candidate narrowly lost. That decision disappointed some ideologues in the Bush administration. Multiple investigations, by Congress, Justice and the news media, indicated that John’s firing — and that of several other U.S. Attorneys around the same time — represented an attempt to influence law enforcement investigations to benefit one political party over another.

Administrations of both parties have long observed policies and norms prohibiting White House intervention in most individual cases, because political interference risks biased decision-making and threatens to undermine the American people’s trust in law enforcement to follow the facts, not the politics.

By disregarding these norms, the president and the White House are also violating the Constitution. As we recently explained in a brief that we filed along with other former high-ranking Justice officials of both parties, the Constitution limits the president’s ability to interfere with individual law enforcement matters. And it will always be unconstitutional for the president to interfere with law enforcement based on personal or corrupted interests — for example, to stop an investigation of him or his associates.

The constitutional principles that limit political interference with law enforcement were recently explained by Protect Democracy, a non-partisan non-profit organization. The limitations flow from Article II of the Constitution, which requires that the president “shall take Care that the Laws be faithfully executed,” and the Bill of Rights. This means that when the president intervenes in a specific investigation or prosecution (with a few exceptions not relevant here), he is not faithfully executing the law to the best of his ability. He also risks violating the First and Fifth Amendments, which require that the law be applied evenhandedly and not used to punish disfavored individuals or groups.

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To be sure, the president can and should play a role in influencing general law enforcement policy, such as making it a priority to address the opioid epidemic. But if Trump interferes for a corrupt or self-interested purpose, as he has done with the Russia investigation, he violates the Constitution by failing to meet his obligation to “take care” that the law is executed faithfully.

His office cannot absolve him of the consequences of his obstructing or otherwise interfering with law-enforcement matters — whether in court or in congressional impeachment proceedings. While we would not necessarily expect a criminal indictment of a sitting president, he may not interfere without constitutional consequence. No one is above the law.

The constitutional limitations apply even to the president’s pardon power. It is broad, but may not be exercised in an unconstitutional manner. The president violates his constitutional obligations if he issues pardons that interfere with a specific investigation into himself or his campaign — or even if he offers up pardons as bribes to induce witnesses to refuse to cooperate in the investigation.

While the president should immediately cease interfering in the Russia investigation, we have been given no reason to believe that he will do so. Therefore, other actors must check the president’s unconstitutional behavior. Congress could consider legislation protecting the special counsel, rather than waiting for a constitutional crisis. And if Attorney General Jeff Sessions or Deputy Attorney General Rod Rosenstein is fired, Congress should refuse to confirm replacements without assurances that they will not fire Mueller.

Civil servants must remember that they swore an oath to uphold the Constitution, not to protect one individual. We have great confidence in the men and women of Justice Department. Although they are in the unenviable position of rejecting or resisting any request from the president or the White House meant to hinder the investigation — including the firing of the special counsel — we are confident that they will live up to their oaths, which we believe require them to resign rather than implement such a request.

Finally, if Mueller is fired or the Russia investigation is substantially impaired in some other way, there would be ample grounds for impeachment. After all, the president swore an oath to “preserve, protect and defend the Constitution.” In interfering with the Russia investigation, he would instead be trampling on the Constitution in order to advance his own interests, in flagrant violation of that oath.

John McKay and Joyce Vance are former U.S. attorneys who served under George W. Bush and Barack Obama, respectively.