As he often does, President Trump hijacked the news cycle with a Monday-morning tweet, this one observing that “numerous legal scholars” agree that “I have the absolute right to PARDON myself.” The president elaborates that he has done nothing wrong, and thus there is nothing to pardon.
So, one might ask, why bring it up?
It’s a good question, and not for the first time are we asking. Late last July, Trump tweeted that “all agree the U.S. President has the complete power to pardon” — only to add that there was no point discussing pardons because the only crimes arising out of the Russia probe were leaks of classified information to hurt the administration, not misconduct by the administration. On that occasion, the president was obviously reacting to a Washington Post report that he had been asking advisers “about his power to pardon aides, family members and even himself.”
In any event, if we must discuss the matter then, yes, the Constitution empowers the president to pardon himself. Like any other power, the pardon power may be abused, and if Congress finds a presidential self-pardon is sufficiently abusive, it may impeach and remove the president. But that would not vitiate the pardon — it would be impossible to prosecute the president on whatever crimes had been pardoned.
I wrote a column for PJ Media last year when the president raised the subject. Here’s the pertinent part:
The pardon question is factually premature in the sense that there is no allegation or indication that [the president] or those close to him have committed a crime. It is not, however, legally premature. There need not be a formal criminal charge before a president issues a pardon. After President Nixon resigned, President Ford pardoned him even though he had not been indicted. President Lincoln mass-pardoned Confederate soldiers and sympathizers, and President Carter mass-pardoned Vietnam draft evaders. Thus, the fact that special counsel Mueller has not, and may never, file criminal charges would not prevent President Trump from issuing pardons.
Including . . . a pardon for himself? Yes.
A pardon is a judicially unreviewable act of executive discretion. I think of it as an iteration of prosecutorial discretion, which is the judicially unreviewable executive decision whether to charge someone with a crime. This is a sweeping presidential authority. The only exceptions to it are obvious from the Constitution’s Pardon Clause (article II, section 2), which limits pardons to “Offenses against the United States.” That is, the president may only pardon offenses that have already occurred — he cannot grant a prospective “get out of jail free” card for future crimes; and the president may not pardon state offenses, for they are outside his jurisdiction over federal law-enforcement.
It is obvious that the Framers understood they were permitting the president to pardon himself. The Pardon Clause says that while the president may pardon any federal offense, this does not extend to “Cases of Impeachment.” The Framers thus expressly considered a president’s potential use of the pardon power to benefit himself. The only limit they imposed on such self-dealing was to prevent the president from blocking his own impeachment, not his own prosecution. On this score, bear in mind that at the time of the Constitution’s adoption, there was no sprawling federal criminal justice system; it was expected that almost all crimes would be prosecuted at the state level. Nevertheless, if the Framers wanted to prevent a president from blocking his own federal prosecution, just as they took pains to block him from preventing his own impeachment, they would have said so.
More significantly, as I argued in Faithless Execution, we’ve become such a litigious society we fail to recognize that the Constitution mainly relies on political checks, not judicial ones. The idea is to promote liberty by putting the most important decisions in the hands of representatives who answer to the voters, not in the hands of judges who are not accountable to the public. All power, including all executive power, can be abused. When a power, such as the pardon power, is abused, the remedy is impeachment. It is not a lawsuit in which the courts are asked to manufacture limits on the pardon power that are not rooted in the Constitution.
This is as it should be. As we witnessed in the Clinton scandals, sometimes the public accepts that executive wrongdoing has occurred but decides that it is not sufficiently serious, or at least sufficiently related to the president’s core duties, that removal from office is warranted. One could easily foresee the same sort of thing happening with an allegation that a president who pardons himself has abused the pardon power. If a criminal allegation were frivolous and politically motivated, much of the public might support a president’s pardoning of himself. On the other hand, if it were discovered that a president had committed a truly serious crime, a president’s use of the pardon power to avoid prosecution would be an impeachable offense (as would the underlying crime itself).
For what it’s worth, I believe the president and his legal team are making a strategic mistake in talking about how expansive the pardon power is, and about how the president’s control over the executive branch renders it constitutionally dubious that he can “obstruct justice,” in the sense of impeding investigators — subordinate executive officials who answer to the president.
The special counsel does not appear to have evidence implicating Trump in a serious crime; nor can he show that, to prove some criminal case, he needs evidence that only Trump is in a position to provide.
I think I understand what they are trying to do: They want credit for cooperating with Special Counsel Mueller’s investigation, especially given that the president is (prudently) declining to be interviewed by the special counsel. So, they are saying, “Look how much we’ve done here to support this investigation and let it proceed, even though the president cannot be indicted and has sweeping power to end the probe.”
At this point, though, I don’t think most people are focused on Trump’s voluntary cooperation with Mueller. They are focused on these extravagant claims of power. Even if those claims are well-supported, they are unnecessary and can’t help but make people wary.
Not that anyone is asking for my advice, but if I were running the president’s legal defense, I would stick to the strongest points. On the conduct that is actually at issue (i.e., weighing in on the Flynn investigation, firing FBI director Comey) there is no obstruction case against the president; thus, there is no need to get into whether a president who committed other, more egregious conduct could theoretically be prosecuted for obstruction.
Similarly, on the facts as we understand them, Mueller has an insufficient basis to demand that the president submit to questioning. The special counsel does not appear to have evidence implicating Trump in a serious crime; nor can he show that, to prove some criminal case, he needs evidence that only Trump is in a position to provide. Consequently, there is no need to get into whether, hypothetically, a prosecutor could compel a president to testify if the president were implicated in a crime and possessed evidence the prosecutor needed to prove the case.
I’m sorry if the president does not need my two cents, but I won’t beg his pardon.
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