WASHINGTON: President Trump tweeted on Monday that he has the absolute right to pardon himself. While he went on to say that he’s “done nothing wrong,” his claim was remarkable.
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
President Richard Nixon
When Richard Nixon told David Frost, “If the president does it, that means it’s not illegal,” he asserted that he couldn’t have done anything wrong. But context is key. Nixon and Frost were discussing the Huston Plan, a report on security operations detailing steps that might be taken in national security operations.
It included, among other things, domestic surveillance without warrants, burglary, and detention camps.
Frost followed with the question, “By definition?”
“Exactly, exactly,” came the reply. “If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise, they’re in an impossible position.”
Careful! The president has a gun!
As chilling as that is to civil libertarians, more chilling is that presidents have asserted the same thing since Washington, and presidents from Abraham Lincoln to Franklin Roosevelt have done more than assert. They acted. Since Nixon, the nation’s intelligence agencies have at least skirted warrantless collection of personal information, and we’ve gone full in on secret warrants.
Nixon didn’t argue that anything the president does is legal. Nor has Trump. Trump has gone one better: It doesn’t matter whether the president breaks the law or not, he can pardon himself if he does.
Louis XIV declared, “I am the state.”
Trump hasn’t gone quite that far, but he’s come close. He and his team assert, “I am the justice department.
Under that argument, the president can hire and fire attorneys general, special prosecutors and other Department of Justice personnel at will, including those investigating the president himself.
Rudy Giuliani went further, telling the Huffington Post that the president could shoot James Comey and not be indicted unless he was first impeached and convicted. And as Trump said in his tweet, he could pardon himself first.
Can Trump pardon himself?
There are two critical questions here: Can a sitting president be indicted?; and can a president pardon himself if he is indicted? We might add another: Can a president pardon himself preemptively, thus ensuring that he is not indicted?
Legal scholars aren’t unanimous on these questions, but there is a broad consensus on at least some elements of them. The DOJ has traditionally held that a president cannot be indicted. The indictment of a president would certainly be beyond the brief of the special prosecutor, and any move in that direction would even more certainly land in the Supreme Court.
The limits on the president’s pardon power aren’t clear. The Constitution contains none. Yet in the very concept of “pardon” is the extension of grace from the pardoner to the pardoned. That makes the concept intrinsically interpersonal; you can’t pardon yourself. But only a fool or a president would argue the law on the basis of the definition of a word, and definitions change.
When Nixon resigned the presidency, one of the first acts of the newly inaugurated President Ford was to pardon him for anything he might have done during his presidency. There were howls of outrage from Nixon’s enemies (they weren’t just the figment of some paranoid delusion), and Ford almost guaranteed Jimmy Carter’s election by doing it, but there’s wide agreement now that Ford did the right thing.
The limits of law and common sense
One legal objection, though, was the issue of the preemptive pardon. You can only pardon someone who’s been convicted of a crime, went the argument. In this case, there hadn’t even been an indictment. No one pursued that argument through the courts, so it remains unresolved.
President Trump and Rudy Giuliani are probably correct when they claim that a president can’t be indicted; he’d have to be impeached and convicted first. They’re probably correct when they assert the president’s authority to fire people in the DOJ; like others in the executive branch, they serve at the pleasure of the president.
They are almost certainly wrong when they assert the president’s right to preemptively pardon himself for criminal behavior.
Among these “probably” and “almost certainly” uncertainties are a few certainties; An indictment of the president will go to the Supreme Court; a presidential self-pardon will go to the Supreme Court; if a president fires a special prosecutor who’s investigating him, the political firestorm will be destructive to his presidency, even if he has the authority to do it.
And that we’re even entertaining these questions shows just how bizarre our political landscape has become. Some questions are best not definitively answered, and questions about indicting presidents and their power to self-pardon are among them. The cost of those answers would be a constitutional and political crisis that sensible people don’t want.