with whom BYE, MELLOY and KELLY, Circuit Judges, join, dissenting.
I would deny the motion to vacate the stay for several reasons.
After Terry Cole, an employee of the Missouri Department of Corrections, spoke with attorneys for John Winfield and agreed to provide support for his clemency petition the department opened an investigation on the next day. Questions were raised to Cole about his “over-familiarity” with Winfield, and Cole was also informed of allegations he had met with Winfield’s family and attorneys. The district court1 subsequently held an extensive evidentiary hearing, making findings of fact and conclusions of law. She concluded that Winfield was likely to *633prove at a later trial that Cole had withdrawn his support for Winfield’s clemency because he felt threatened. The district court subsequently granted Winfield’s motions for stay of execution and preliminary injunction, enjoining state employees “from obstructing, pressuring, discouraging, or otherwise threatening any correctional employees from providing statements in support” of Winfield’s clemency efforts. A panel of our court affirmed the district court.
One of the legal questions presented here is what adequate process is due in state clemency proceedings. While addressing this question, a majority of the Supreme Court rejected the notion that the discretionary nature of clemency removes a right to minimal due process. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 288-89, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (O’Connor, J., concurring in part and concurring in the judgment, joined by Souter, Ginsburg, and Breyer, JJ.); id. at 290, 118 S.Ct. 1244 (Stevens, J., concurring in part and dissenting in part). Justice O’Connor disagreed “with the suggestion in the principal opinion that, because clemency is committed to the discretion of the executive, the Due Process Clause provides no constitutional safeguards,” id. at 288, 118 S.Ct. 1244, and concluded that “some minimal procedural safeguards apply to clemency proceedings,” id. at 289, 118 S.Ct. 1244 (emphasis in original). Justice Stevens, who would have gone further by remanding to determine whether due process requirements had been met, similarly concluded that postconviction proceedings must “comport with due process.” Id. at 293-95, 118 S.Ct. 1244.
While Justice O’Connor’s opinion in Woodard gave hypothetical examples to illustrate state procedures for which “[j]u-dicial intervention might ... be warranted,” id. at 289, 118 S.Ct. 1244 (state official flipping a coin to make the clemency decision or arbitrary denial of access to the clemency process), the Court did not decide that these were the only circumstances in which a state clemency process could be fundamentally unfair. Justice O’Connor’s hypothetical should not be read to set a firm boundary delineating the only two cognizable claims of clemency procedures which violate due process.
Our court has already concluded that a state’s action to intimidate potential witnesses into withdrawing support for a clemency petition violates due process. Young v. Hayes, 218 F.3d 850 (8th Cir.2000). In Young, we granted a stay of execution on facts remarkably similar to those Winfield has alleged here. Id. at 853. There, a state employee initially wished to provide support for an inmate’s application, but after having her employment threatened, she partially withdrew her support and submitted to the governor only one of the two issues she had planned to raise for the inmate. We recognized that although executive clemency is not a constitutionally required process, once the state itself elects to create the process it must “refrain from frustrating it by the threatening the job of a witness.” Id. at 853. Our court has again explained this requirement of fundamental fairness in the clemency process in Noel v. Norris, 336 F.3d 648, 649 (8th Cir.2003) (“[I]f the state actively interferes with a prisoner’s access to the very system that it has itself established for considering clemency petitions, due process is violated.”).
As the experienced district judge concluded after an evidentiary hearing, Win-field is likely to prove at a later trial that state employees took action to intimidate Cole and thus successfully dissuaded him from supporting Winfield’s clemency application. After hearing the evidence, the *634district court found that Cole felt threatened by the state’s investigation and therefore withdrew his support for Winfield’s clemency. Here, as in Young, the state appears to have exercised the considerable influence it has to induce its employee to withhold evidence and support for a clemency petition, and “such conduct on the part of a state official is fundamentally unfair.” See id. at 853.
After the district court’s entry of a stay, the Department of Corrections sent the governor a declaration which Cole had signed on May 22, 2014. At the evidentia-ry hearing held after he signed this statement, Cole confirmed publicly that he no longer wished to provide a letter or support for Winfield’s clemency application. The fact that the state sent this statement to the governor would not alter a conclusion that Winfield’s due process rights have been violated. There is a significant difference between the governor receiving a committed voluntary statement in support of clemency and a later disavowed statement sent on behalf of a pressured witness. To conclude otherwise would ignore reality. Additional questions of fact remain as to what other evidence Cole might yet supply in the absence of state interference.
For these reasons, I would deny the motion to vacate the stay and allow Win-field an opportunity to proceed on his due process claim.
. The Honorable Catherine D. Perry, Chief Judge of the United States District Court for the Eastern District of Missouri.