PostEverything | Analysis
January 2, 2018 at 6:00 AM
John Dowd, who says he ghostwrote President Trump’s incriminating tweet about firing Michael Flynn and argues that the president cannot commit obstruction of justice, appeared to be a man enjoying retirement when I visited him at his home in February. We chatted for a couple of hours that day in the sunroom of his rancher in Northern Virginia about brawls back before the turn of the century — among them his investigation for Major League Baseball of Pete Rose, his counsel to John McCain during the Keating Five scandal and his marathon defense of former Arizona governor Fife Symington, a sprawling federal fraud case that ended when Dowd helped Symington become the fourth person in U.S. history to receive a preemptive presidential pardon. After Richard Nixon, Symington is the only one to receive such a pardon while facing no criminal charges. Dowd replayed some of his greatest hits with bravado, wit and more than one f-bomb, but he is 76 and seemed content to be looking back and taking stock.
So I was surprised to hear that Trump added Dowd to his personal legal team in the summer. At the time, Dowd was a relative unknown to the current generation of political operatives. Even for boomers, I’d found during my research for a book about Symington, recognition usually took the form of I think I remember that guy.
But as the Russia investigation unfolds, Dowd’s new job makes more and more sense. Soon after Dowd became a Trump adviser, the president reportedly asked his advisers about his power to pardon aides, family members and himself. Dowd called that report “nonsense.” The president’s lawyers are cooperating with special counsel Robert S. Mueller III on behalf of the president, he said. But the next day, Trump bragged on Twitter that he had “the complete power to pardon.” In the fall, he went further, arguing that the president cannot obstruct justice because he is the chief law enforcement officer.
If anyone knows the near boundless powers of the president to pardon his fellow Americans — and his friends and family — it’s Dowd. Dowd and his partner in the Symington case are the only attorneys to ever successfully earn a get-out-of-jail-free-before-you-even-go-to-jail card for a client who didn’t work with the president. (President Gerald Ford pardoned his old boss, Richard Nixon, and George H.W. Bush pardoned Iran-contra operatives Caspar Weinberger and Duane Clarridge.) This credential could come in awfully handy as the Justice Department’s probe, led by Mueller, picks up steam. If the president wanted to preemptively pardon Trump son-in-law Jared Kushner or anyone else in his orbit, Dowd is the man who knows how to do it.
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In the early 1990s, Symington was a rising star in the Republican Party. The great-grandson of the industrialist Henry Clay Frick had built an impressive portfolio of commercial real estate properties in Phoenix before getting elected governor of Arizona as a moderate, tax-cutting Republican.
The period around Symington’s campaign in 1990 was the pinnacle of the nationwide savings-and-loan crisis that saw hundreds of the cooperative banks close. Symington had served on the board of Southwest Savings and Loan in Arizona from 1972 to 1984. In 1989, the Resolution Trust Corp., set up that year to resolve the spreading crisis, began an investigation of Southwest Savings, a probe that morphed into a deep dive into Symington’s personal finances. In 1996, during Symington’s second term, he was indicted on 23 felony counts of extortion, making false financial statements and wire fraud. Dowd and his partner, Terry Lynam, represented him in a 17-week trial the next year, after which a jury convicted Symington on seven counts.
But, on appeal, Symington’s lawyers held that a juror had been improperly dismissed for her refusal to deliberate (she felt sure Symington was innocent). The circuit court agreed; the three-judge panel overturned Symington’s felonies and sent the case back for retrial.
The retrial never happened. On Jan. 20, 2001, in one of his final acts as president, Bill Clinton pardoned Symington.
Symington certainly had an inside track to Clinton’s favor, and not just because both men were former governors and targets of real estate-based financial scandals. Symington had saved Clinton from drowning during a Hyannis Port beach vacation in 1967.
According to Tommy Caplan, a mutual friend of the men, Symington had asked him to find out whether Clinton would be open to a pardon. Caplan approached Clinton at a White House Christmas party and Clinton gave an enthusiastic go-ahead to apply via the White House Counsel’s Office. That’s when Symington called Dowd. On Dec. 22, 2000, Dowd hand-delivered the petition and several supporting affidavits of character directly to a Clinton staffer at the northwest gate of the White House.
The petition itself looked like a typical government form. Under the heading “Petition for Pardon After Completion of Sentence” (there isn’t even a form for a preemptive pardon), it asked for the applicant’s name, date of birth, location of birth, height, hair color and the like. Then Symington was asked to list the charges on which he or she was convicted. Dowd and Lynam noted that the case didn’t fit the standard form: “Petitioner’s conviction was overturned by the Court of Appeals. The pardon is sought for all charges for which he could be retried.”
There followed a “Summary Of Offenses For Which A Pardon Is Sought,” plus a questionnaire. Had the petitioner committed any crimes? (No.) Had he served in the military? (Symington had received a Bronze Star during Vietnam.) Had he attended school since his offense? (He attended culinary school in Scottsdale soon after his conviction, which he did mainly to land a kitchen job if he was sent to federal prison.)
Under “Reasons for Seeking a Pardon,” Symington, Dowd and Lynam crafted a two-page argument for why the case against Symington had been flawed, arguably politically motivated and why Symington — forced to resign with his reputation and finances in tatters — had already suffered enough. Affidavits from Caplan, Dowd and three longtime staffers and friends of Symington rounded out the application.
Once Dowd filed it, he and his client waited. Clinton’s clock was winding down. “It seemed like nothing was going to happen,” Symington told me. Finally, on the morning of George W. Bush’s inauguration, Symington received a call while eating breakfast with friends in a Phoenix restaurant. It was his father, himself a longtime conservative political figure, saying he had seen the news of his son’s pardon on Fox News.
Dowd had helped guide his client to freedom down a path that arguably was unique in American history.
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That path is again relevant, and Dowd is in a position to reprise it. From inside the White House, one need not be a gifted debater or legal scholar to manage presidential passes and blanket absolutions. His new client wasn’t far off when he said, “all agree the U.S. president has the complete power to pardon.” The Constitution says the president “shall have power to grant reprieves and pardon for offenses against the United States, except in cases of impeachment.” Reached this weekend, the White House did not answer a request for Dowd to comment on this story.
Although Clinton came under intense criticism for his pardoning of Symington and 395 others, he was far from the most prolific presidential pardoner, according to data from the Justice Department. Franklin Roosevelt pardoned 2,819 people, more than the last seven presidents combined. George H.W. Bush was by far the stingiest, with 74 pardons. Obama pardoned 212, George W. Bush pardoned 189. Pardons can be given for any reason or no reason, and they have been dispensed (as in the Symington case) without traditional input from Justice.
So far, besides his Thanksgiving pardons to two turkeys, Trump has dispensed just one pardon. That went to the controversial former Maricopa County, Ariz., sheriff Joe Arpaio, who was convicted of criminal contempt of court for failing to follow an order to stop racially profiling Latinos. Citing the Constitution and centuries of legal precedent, most legal scholars agree there is one person Trump probably can’t pardon, at least without a firestorm of legal challenges and perhaps crippling political fallout: himself.