Democracy at Risk: A Broken Judicial Nomination Process

Unbelievable and unprecedented fail to describe Senator John Kennedy’s (R-LA) questions and answers from one Trump judicial nominee to the U.S. District Court for the District of Columbia during a Dec. 14th confirmation hearing.

"Have you ever tried a jury trial?" asked Senator Kennedy.

"I have not," Petersen said.

"Civil?"

"No."

"Criminal?"

"No."

“Bench?”

"No."

"State or federal court?"

"I have not."

It is not surprising that video of this astonishing exchange went viral.

The courts are vitally important on issues that affect all our lives. One justice has made the difference on a range of issues from marriage equality, a presidential election, and reproductive rights.

And yet, we have a president who regularly denigrates the judiciary and individual judges.

We also have a Senate Majority Leader and Judiciary Committee Chair who have been rushing through judicial nominees by removing important checks and reinforcements of the Senate’s constitutional advice and consent role.

We face a staggering number of judicial vacancies. There now are 155 current and future known vacancies which represent nearly 20 percent of the judiciary.

This vacancy figure is the product of a plan by the Senate Majority Leader. He slowed down the judicial confirmation process to a near halt over the last two years of the Obama Administration, holding open not only the Supreme Court seat that should have gone to Chief Judge Merrick Garland, but also more than 100 lower court vacancies.

On top of this plan, we see a recent proposal by the founder of the Federalist Society, Steven Calabresi, who suggests Congress dramatically and immediately expand the number of lifetime judgeships for the Trump Administration to fill.

The point of the proposal, Calabresi admits, is to reverse the judicial legacy of President Obama. It is worth noting that Obama is the only recent president who did not have additional judgeships added during his tenure due to Republican efforts to block any consideration of such ideas.

And yet, the pace of confirmations this year has been rapid. To date, the Senate has confirmed 19 lifetime judicial appointments – one to the Supreme Court, nine to the Circuit Court of Appeals. And more confirmation votes have been scheduled. By the end of President Obama’s first year in in office, the Senate had only confirmed 13 judges, including one to the Supreme Court and only three to the Circuit Courts.

This Administration has been extremely aggressive in putting forward nominations, already nominating 59 individuals to these lifetime positions. In many cases, they have often done so without consultation with the home-state Senators which defies the longstanding practice.

Some Senators have withheld blue slips due to this lack of consultation. But two weeks ago, Senate Judiciary Committee Chairman Grassley scheduled a hearing for nominees without support from their home-state Senators, thereby making himself the sole determiner of if and when home-state Senators will have their blue slips honored.

All of these important constitutional and procedural norms are being dismantled while the White House nominates extremely troubling nominees. We see nominees who lack legal experience, who lack experience in the jurisdiction which they have been nominated, who have extremely strong ideological backgrounds, who have omitted important information from their Senate Judiciary Committee Questionnaires, and have made deeply troubling public statements in some cases as bloggers.

Earlier this month, the Senate Minority sent a message about this troubling state of the judicial nomination process by leaving the judiciary markup so early that they prevented the majority from having a quorum to hold a vote on the nominees. Yesterday, Senator Grassley asked the White House to reconsider two of their nominations, Brett Talley and Jeff Mateer, who he said, “should not proceed.” The White House responded to these concerns saying these nominees “will not be moving forward."

It’s time that we all demand better for our federal judiciary. We must start with having a good process that allows for the thorough vetting of judicial nominees who, if confirmed, would serve for life.

Listen to ACS’s briefing call Democracy at Risk: The Judicial Nominations Process on Dec. 7, 2017, featuring Senator Chris Coons from Delaware, a member of the Judiciary Committee, and Susan Davies, former Deputy Counsel to President Obama.

 

Repackaging Abolition: Targeting Christians, Conservatives

by SpearIt, Associate Professor of Law, Texas Southern University Thurgood Marshall School of Law

*This blog was originally posted on Huffington Post.

Recent events have put the death penalty and wrongful conviction on center stage in America. Last month, a California man made headlines for being pardoned after spending 39 years in prison. In his case, DNA evidence revealed that his own DNA did not match that found at the crime scene. Last year, Donald J. Trump stirred up controversy by maintaining that the Central Park 5 was guilty despite that another individual confessed to the rape and beating. Back when the crime first took place, Trump purchased full-page ads in newspapers calling for the reinstatement of the death penalty in New York. Such high-profile cases offer ammunition for critics of the death penalty, but they need to be packaged in a way that makes sense to a broader audience, including Christians and political conservatives.

Abolitionists in America seek to bring about the death of the death penalty itself. Often, abolitionists are characterized as “bleeding heart” liberals and progressives who misunderstand the principles of both God and country. By extension, the labeling also applies to those involved in innocence projects, which seek to exonerate individuals from prison or death row. Some of the divide is due to Abolitionist preaching, which often is not necessarily aimed at real choirs. Instead, abolitionist circles tend to be in conversation with themselves. This must change. Advocates must repackage their message for wider American consumption. Specifically, they can expand the base by targeting Christians and conservatives, who might be rightly seen as natural allies.

Of course, this is not to say that religious folks are not against the death penalty. Catholics and evangelicals have indeed worked to end state killings. The Commandment “Thou shall not kill” is a favorite among opponents. Perhaps most famously, Sister Helen Prejean has been outspoken about the insurmountable ills of capital killing, which has been widely publicized through the film, Dead Man Walking. The film was based on her personal experience of trying to help a man escape Louisiana’s death row. Pope Francishas even called for a change in Catholic teachings on the death penalty, claiming that the practice is contrary to the Gospel.

Despite these religious outlooks, the death penalty enjoys relatively robust support among religious adherents. For example, a Pew Gallup Poll found that 71% of Protestants and 66% of Catholics support the death penalty. Even the darling of evangelicals, Donald J. Trump, has continued to be an outspoken supporter, and has recently called for the death of a Muslim attacker who used a van to kill at least eight pedestrians in New York City. Paradoxically, Trump’s statements may have prejudiced the attacker’s criminal case to such a degree that he may never receive the death penalty, despite what are likely to be multiple murder convictions.

Perhaps the greatest irony in Abolitionist messaging is that it invariably fails to get much mileage out of the “greatest story ever told.” Indeed, the Jesus narrative stands as a powerful message to convey the problems of wrongful conviction and capital execution. As a model, it depicts an individual arrested by Roman officials, convicted for exercising free speech, tortured, and eventually executed by the state.

Hence, it is a potent example that has been largely untapped by abolition advocates. Jesus was, by today’s standards, wrongfully convicted, wrongfully punished, and ultimately executed. The simplicity of the story is breathtaking and sits at the core of abolitionism: An innocent man was put to death.

There are likewise conservative points to support the cause that have gone largely unspoken. Without doubt, it may be argued that being anti-death penalty is a politically conservative posture. In the Declaration of Independence, a cherished cornerstone of American political values, there is a clear indication that anything like a death penalty would be abhorrent to Americans:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The meaning here is clear—life is sacred—God gives humans life, and no one can take that away. These words ring even more loudly in their political context. Consider that when the Declaration was written, the King of England had already embarked on a terror campaign that left many American, and even British subjects, dead. Hence, this document was a clear repudiation of the king’s killings, and stood for the proposition that the new republic would be free from such tyranny. In his edited volume, The Killing State, Austin Sarat asserts that folks on the right “can say that the most important issue in the debate about capital punishment is one of fairness not one of sympathy for the murderers; they can position themselves as defenders of law itself, as legal conservatives.”

In addition is fiscal conservatism, which by default is at odds with American capital punishment since killing costs taxpayers a lot of money. According to reporting by the New York Times, states waste millions of dollars on winning death penalty cases. Such cases require more expensive trials and pretrial procedures, a 15-to-20-year appeals process, not to mention that keeping an individual on death row can cost up to $90,000 a year more than it costs to keep a prisoner in the general population. Over the course of 20 years this can add up to millions of dollars. Hence from a fiscal perspective, the death penalty represents wasteful government par excellence.

The time is right for death penalty foes to increase the base by repackaging their message. Today, the death penalty holds the lowest support in America than it has in decades. The real question is whether advocates can capitalize on this moment by presenting arguments that pull at different heart strings and forge new alliances.

 

“Inextricably Bound Up”: Why Courts Must Allow Jury Questioning on Sexual Orientation Bias

by Eric Lesh, Fair Courts Project Director, Lambda Legal and Ethan Rice, Fair Courts Project Attorney, Lambda Legal

LGBT people have suffered a long history of discrimination based on animus and invidious stereotypes. As has been the case for other groups targeted for their personal characteristics, LGBT people have seen prejudice against them displayed in our nation’s courtrooms.

When this type of anti-LGBT bias taints the jury selection and trial processes, it reinforces historical prejudice in the court system, interferes with litigants’ right to a fair trial, and undermines the integrity of the courts.

To fight the corrosive impact of this type of prejudice in the judicial system, Lambda Legal recently filed an amicus brief in the Eleventh Circuit in Berthiaume v. Smith. The case involved a police response to an altercation between two gay men, who formerly had been partners, during their attendance at Fantasy Fest in Key West, Florida. One of the gay men involved, Raymond Berthiaume, filed a civil suit against police and the city, alleging excessive force was used against him during his arrest, causing him a broken jaw and wrist for which he required surgical treatment.

Over the course of the three-day civil trial, Mr. Berthiaume’s sexual orientation was repeatedly brought to the jury’s attention. For instance, apart from police witnesses and the deposition testimony of a medical professional, all witnesses at the trial were gay men. Their sexual orientation and personal relationships to each other were made known to the jury, as was the fact that, at the time of the incident, the men had previously departed from a “gay bar.” During the trial, there were over 20 references to Mr. Berthiaume’s intimate relationships with his husband and former partner.The fact that police believed Mr. Berthiaume was wearing only a loincloth during the alleged incident was stated to the jury 30 times.

Despite the prominent role that sexual orientation played at trial and the fact that this role was clear before the trial began, the trial court judge refused to ask prospective jurors Mr. Berthiaume’s proposed juror question, which was: "Do you harbor any biases or prejudices against persons who are gay or homosexual—or believe that homosexuality is a sin?" Ultimately, the jury returned a verdict in favor of the defendants. On appeal, Mr. Berthiaume asserted that by refusing to ask his proposed question, the court failed to uncover anti-gay bias, thereby inhibiting his constitutional right to a fair trial.

The Eleventh Circuit agreed with Mr. Berthiaume, holding that, despite the broad discretion given to trial judges to determine the scope of jury questioning, the Constitution requires that courts allow inquiry into sexual orientation bias where, as here, sexual orientation is “‘inextricably bound up’ with the evidence to be presented at trial.” In so holding, the Eleventh Circuit found that “the risk that latent, undiscovered prejudices may have influenced the jury’s verdict” in this case was “substantial.”

In our amicus brief, Lambda Legal highlighted that bias against LGBT people remains overwhelmingly pervasive in the context of jury selection. Even in relatively tolerant jurisdictions, court decisions and transcripts reveal that some prospective jurors continue to express moral disapproval of lesbians and gay men, sometimes citing religious beliefs.

In fact, Lambda Legal’s national survey of LGBT people’s interactions with government institutions, Protected and Served?, found that community members faced both overt and subtle discrimination in the courthouse. Respondents reported experiencing a range of negative courthouse encounters, ranging from overhearing negative comments about sexual orientation to having their own sexual orientation disclosed in court against their will.

Significantly, in their powerful opinion vacating the judgment and remanding for a new trial, the Eleventh Circuit noted:

“Given the long history of cultural disapprobation and prior legal condemnation of same-sex relationships, the risk that jurors might harbor latent prejudices on the basis of sexual orientation is not trivial. Just two terms ago in Obergefell, the Supreme Court noted that for much of the 20th century, homosexuality was considered a mental illness, and same-sex intimacy was prohibited by law in many states. And despite the more recent “shift in public attitudes toward greater tolerance,” Obergefell itself is evidence that issues regarding homosexuality continue to be debated in our society. While some jurors are not biased based on sexual orientation, some realistically are.” [citations omitted].

This case is a significant win for LGBT people, who deserve the same equal access to a fair trial as every other person in America. It reaffirms that everyone has a right to have their case heard by an impartial jury. Lambda Legal’s Fair Courts Project continues to fight jury bias, homophobia and transphobia in the courts. 

A Perfect Storm Threatens the Rule of Law

by Reuben Guttman, Founding member, Guttman, Buschner & Brooks PLLC

*This piece was originally posted on Huffington Post.

Our nation has survived a sordid past from slavery to the internment of Japanese citizens. It even survived a duel between a sitting Vice President, Aaron Burr, and the former Secretary of the Treasury Alexander Hamilton that resulted in the Secretary’s untimely death. President Franklin Roosevelt tried to “pack the Court” as a counter measure to the “nine old men” who threatened his New Deal legislation. The republic even lived past Watergate and a President who used the power of the office to suppress dissent.

Through the lens of history – and despite the sometimes unseemly cast of characters who have made it – we have witnessed the evolution of a rule of law created incrementally through the recognition of new rights and the balancing of old ones, and with due consideration to revolutions in communication, transportation, and science. From the tired and poor and huddled masses, or immigrants, as envisioned by poet Emma Lazarus, to those with established economic stability, our rule of law, though resilient, is a constant balancing act. And, often, with changing circumstances, it is in need of a rebalance. It is, as Judge Richard Posner might opine, a change in the context that makes us see the text in a different light.

Against this setting, the protocol of the presidency is to tread lightly with due consideration for every step and its consequences for the near and long term. Our rule of law resides not in isolation but as part of a world order. Some common global rules bridge the laws of different nations. But each nation’s laws are established and must be interpreted within the context of culture and history.

Our rule of law permits some play where politics can adjust the balance of power in favor of the well-heeled or the downtrodden. Politics can result in the adjustment or passage of laws that protect immigrants and minorities and it can impact the regulation of business, science, and healthcare delivery.

As much as politics spawns passion and disagreement, it has presumptively existed within the rule of law.

That brings us to Donald Trump. There are bits and pieces of him in our history books, but there has been nothing exactly like him. He has attacked the judiciary, personalizing his attacks on judges and even threatening to split the Ninth Circuit, which is too liberal for his taste. He has invaded the province of the jury by openly criticizing verdicts, and he has even called for an accused to be executed; a request made before the sun even set on the day of the arrest. He used his pardon power to effectively reward a Sheriff who was held in criminal contempt for defying the order of a Republican Judge who sought to restrain discriminatory enforcement of the law. He has intruded into private sector workplaces and business relationships calling for employees – mostly members of the media and even some professional athletes – to be terminated or disciplined. He has attempted to taint the reputations of individuals or businesses who question his rule. He has charged that the New York Times is a “failing” newspaper and that CNN and its correspondent Jim Acosta publish “fake” news when they criticize him. When General Flynn took a guilty plea, he questioned why the Justice Department does not pursue “crooked Hillary” and he referred to the justice system as “cooked.” Unable to contain his ire, he proclaimed that the FBI’s reputation is in “tatters.” After claiming credit for securing the release of a UCLA Basketball player from prison, he launched a verbal assault on the player’s father who did not accord the President enough credit. The President tweeted: “….IT WAS ME. Too bad! LaVar is just a poor man’s version of Don King, but without hair.”

Of course, one must not forget that shortly after taking the oath of office, the President fired the Acting Attorney General who refused to enforce his travel ban. He later terminated the FBI Director for reasons that now merit the investigation of an independent counsel.

The issues here are not about politics. Politics gives the President the leeway to endorse a candidate for Senate even though he is an accused pedophile, is antagonistic to the rights of gays and lesbians and was twice removed from his judicial position for derelictions of his judicial duties. Politics even gives the President the right to appoint judges who are deemed unqualified by the American Bar Association, which the President has done. Politics gives the President the right to appoint a Secretary of Education who disdains public education and to appoint a protector of polluters to run the Environmental Protection Agency. He can even – as he has done – appoint an interim Director of the Consumer Financial Protection Bureau who has stated a desire to dismantle the agency. All of this we may not like, but he can do it.

And so, some may say, “so what, we have seen it before and we have survived.” Yet, imagine if all of this were occurring amidst the Cuban missile crisis? Actually, there is no need to imagine. North Korea has threatened our destruction with missiles that can now reach our nation’s capital.

And, just as the President has picked fights with newscasters, athletes, leaders of his own party, and vanquished politicians, he has done the same with North Korean Leader Kim Jung Un, the Australian Prime Minister, and even the Mayor of London. His taunting of the North Korean leader leaves little room for negotiation and invites war.

We teeter on the brink of extinction much as we did in October 1963. Yet, 64 years ago the leader of the free world, though inexperienced, appreciated the norms of diplomacy, the perils of his own fallibility, and the horrors of war.

It appears we are amidst a perfect storm: a President whose challenges to the rule of law sow domestic discord; and a President who – unlike his predecessors – disdains seasoned diplomats and advisors. If there was a check on Richard Nixon, it was a Democratic Congress – indeed a bi-partisan Congress – willing to ask hard questions. With few exceptions, this Republican majority in Congress is unwilling to challenge this President no matter what he does.

How will this end? How will it all play out? If Trump is threatened directly with impeachment, how will he lash out and will it have consequences beyond our borders?

Anyone who has a vision for the future – which is the stuff Presidents are made of – has to be concerned. But Trump is a different animal; for a man who lives on Big Mac’s, Filet-O-Fishand chocolate shakes, he seems to lack concern about his own future or ours. His trail of lies and half-truths speak to a man who wants to get past the moment leaving the consequences for tomorrow and another lie.

We are at a place in history without precise precedent. It is indeed a perfect storm; hopefully one which we will live to write about.

As a Federal Judge, Would the ‘Tweeter Laureate of Texas’ Follow Supreme Court Law?

by Steve Sanders, Associate Professor, Indiana University Maurer School of Law

Texas Supreme Court Justice Don Willett, who is best known for his relentlessly folksy Twitter feed and who calls himself the “Tweeter Laureate of Texas,” is almost certain to be confirmed soon by the U.S. Senate to a seat on the Fifth Circuit U.S. Court of Appeals. Advocacy groups and Democratic senators have raised concerns about Willett’s judicial temperament and possible biases, including his attitudes toward LGBT equality. One basic concern should be Willett’s ability to read and faithfully apply U.S. Supreme Court precedent.

Last summer, Willett joined a unanimous Texas Supreme Court decision, Pidgeon v. Turner, that allowed a lawsuit to go forward in the Texas lower courts in which two private citizens argue that the City of Houston must deny same-sex couples the benefits it provides to opposite-sex couples, notwithstanding the U.S. Supreme Court’s 2015 decision for marriage equality in Obergefell v. Hodges. The citizen plaintiffs in Pidgeon appear to have no serious constitutional or public policy theory about why disparate treatment between gay and straight married couples should be permissible after Obergefell. They simply oppose the idea of “taxpayer-funded benefits to same-sex couples” and resent the idea that federal courts can tell Texas how to behave. Their lawyer has said he would like to use the case as a vehicle for eventually asking the U.S. Supreme Court to overturn Obergefell.

According to the Texas justices in Pidgeon, the argument that a public employer could discriminate against legally married same-sex couples was not precluded by Obergefell, because the U.S. Supreme Court “did not address and resolve” the question of “whether and the extent to which the Constitution requires states or cities to provide tax-funded benefits to same-sex couples.” Obergefell, they said, held only that “the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons.”

The Pidgeon decision has been widely misreported as a final holding that Texas can discriminate against same-sex couples. In fact, the decision was merely an interlocutory appeal that said the plaintiffs could make their arguments in the lower courts. Still, the plaintiffs’ arguments are precluded by Obergefell, and Justice Willett and his colleagues should have said so.

Obergefell did not merely decide that the Constitution protects a right of gays and lesbians to marry. The Court framed its decision in the language of “equal dignity.” The Obergefell decision was grounded in a broad understanding of contemporary American marriage as “a keystone of our social order” and an institution that “safeguards children and families.”

It is not possible to separate the Court’s discussion of the right of gays and lesbians to marry from its discussion of the legally conferred benefits and responsibilities of marriage. One of the factors in the Court’s decision was that “marriage … confers … profound benefits” that “protect and nourish the union.” The Court further observed, “The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.” The Court explained that it was time to decide the question of marriage equality because “slower, case-by-case determination of the required availability of specific public benefits to same-sex couples ... would deny gays and lesbians many rights and responsibilities intertwined with marriage.”

It is difficult to understand how Justice Willett believes this framing in Obergefell leaves room for the idea that a government employer in Texas could intentionally discriminate against legally married gay and lesbian couples in the provision of just such public benefits – benefits that come as a consequence of marriage and which often help to support children and other family members.

Incredibly, Justice Willett and his colleagues in Pidgeon stood by their untenable reading of Obergefell even in light of a post-Obergefell per curiam decision from the U.S. Supreme Court last summer, Pavan v. Smith, which held that Alaska could not treat married same-sex and opposite-sex couples differently for purposes of their children’s birth certificates. In Pavan, the Court said that when it declared in Obergefell that “a State may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples,’” it intended that those “terms and conditions” refer not merely to the requirements for a marriage license, but to the “‘rights, benefits and responsibilities’” that accompany marital status.

And so the Pidgeon decision Judge Willett joined was plainly wrong in holding that the issue of benefits for legally married same-sex couples somehow remains an open question after Obergefell. If there had been any room for debate, Pavan foreclosed it. As I write in an essay about Pavan in the new ACS Supreme Court Review, such an intentional underreading of Obergefell “is wrong both doctrinally and morally. To maintain that Obergefell was only about the right to obtain a marriage license, and not about the right to fully participate on equal terms in the status of marriage as contemporary American law and society understand it, requires an almost deliberate obtuseness.”

And so in short, his willingness to join the Pidgeon opinion does not bode well for Don Willett’s ability to uphold his obligation as a federal judge to read and apply U.S. Supreme Court precedent with honesty and integrity.

Considering Presidential Pardons after Flynn’s Guilty Plea

by Andrew Wright, Associate Professor, Savannah Law School

Michael Flynn is cooperating with Special Counsel Robert Mueller’s investigation. The plea agreement requires that Flynn “shall cooperate fully, truthfully, completely, and forthrightly with this Office and other Federal, state, and local law enforcement authorities identified by this Office.” Flynn’s statement of the offense ominously announces that “[t]hese facts do not constitute all of the facts known to the parties concerning the charged offense.” There is some debate about whether this agreement signals that Flynn has significant incriminating information about senior-most White House advisors, or President Trump himself. Only Flynn, Mueller, and the others whom Flynn might implicate on matters related to the investigation are in a position to know the quality of his cooperation.

But what if President Trump started using his pardon power to end the Russia investigation? What would be the effect, if any, if President Trump pardoned Flynn now? What about pardons of others that might be implicated by Flynn in his cooperation? Pardons raise a number of important questions after Flynn’s plea.

As an initial matter, a presidential pardon would relieve Flynn of punishment for the crime to which he has pled. He pled guilty to a single-count felony violation of the false statement statute, 18 U.S.C. § 1001. The plea agreement reflects an agreement by the parties as to Flynn’s estimated sentencing range under the Federal Sentencing Guidelines: 0-6 months of prison time and $500-$9,500 in fines in light of the total offense level and Flynn’s criminal history profile. A presidential pardon would relieve Flynn of all forms of punishment meted out by prison time and fines.

A full and total pardon would also erase other federal criminal exposure for any uncharged federal crimes Flynn may have committed that are within the terms of the pardon. While only Mueller has looked at all the available evidence, press reports about Flynn’s business dealings with people and entities affiliated with the Turkish government suggest Mueller, at a minimum, could have potentially sought criminal charges related to omissions and failures under the Foreign Agent Registration Act (FARA). The Manafort and Gates indictment demonstrates Mueller’s willingness to bring charges under FARA. Press accounts have also linked Flynn to conduct that could implicate conspiracy to commit kidnapping and criminal provisions of federal ethics laws. Flynn’s transition contacts with the Russian ambassador also raise the possibility of charges under the Logan Act because it appears he was advocating Russian actions, although that statute has its critics. In any event, uncharged crimes against Flynn, and perhaps his son Michael Flynn, Jr., remain the critical source of Mueller’s leverage to ensure Flynn’s continued cooperation. If President Trump pardoned Flynn, it would eliminate that leverage.

Presidential pardons only reach federal crimes. They have no effect on criminal prosecutions by the states. On his show The Beat, Ari Melber argued that state cooperation provision is designed to defeat presidential pardons of other parties who may have violated state law. Jed Shugerman has also advanced the theory that Mueller is playing a inside/outside federalism game as a hedge against pardons. For example, under the agreement, at the Special Counsel’s command Flynn would have to testify about any incriminating knowledge he has that would be relevant to a state money laundering prosecution against, say, Jared Kushner. The weakness in the Flynn cooperation agreement as a line of defense against the bad faith use of presidential pardons is that if the President pardons Flynn, Muller’s legal leverage over Flynn evaporates and Flynn would be less likely to honor the agreement.

While those could be significant consequences, a Flynn pardon would worsen the President’s broader legal and political troubles. It would immediately be perceived for what it was—self-protective obstruction of a criminal investigation. Some, like Andy Grewal, argue that no exercise of executive power by the President can constitute a criminal act defined by Congress. I fundamentally disagree. The use of the pardon power, like removal of the FBI director, in order to obstruct an investigation, with corrupt intent, could violate an obstruction of justice statute as well as the Take Care Clause of the Constitution. But that is a debate for another time. Self-protective pardons under these circumstances would be politically toxic, and would be an event as seismic as Comey’s firing.