June 4, 2018 | Reading Time: 4 minutes
Only Trump Believes He Can Pardon Himself
The argument, every single word, is bullshit, and the president's attorneys know it.
An American president said out loud for all the world to see the most unthinkable of unthinkable things: that he has the “absolute right” to pardon himself.
Pardons and obstruction. Let’s unpack them from a layman’s point of view. In layman’s terms: This all of it is bullshit, and Donald Trump’s attorneys know it. First, pardons.
The US Constitution itself is unhelpful in settling the question of whether a president can pardon himself, because it enumerates just four powers given to any president:
The power to appoint judges, ambassadors and other federal officials.
The power to act as commander-in-chief of the military
The power to make treaties.
The power to grant pardons.
As political historian Andrew B. Arnold writes in A Pocket Guide to the US Constitution (Georgetown University Press), “All the rest are implied executive powers, and powers presidents have taken because they could” (my italics).
This is important to note, because Trump’s defenders point to the Constitution as justification for his behavior. He can pardon himself, they say, because the Constitution gives him the power to pardon. That’s what Michael Stokes Paulsen tries to do in his a July 2017 piece for the National Review: “The president’s constitutional power to grant pardons for violations of federal law is absolute.”
It’s a bullshit argument, according to conservative and liberal legal scholars. No man can be judge and jury in his own trial. The ancient political thinkers knew that. The American founders knew that. All sitting jurists know that. Every normal sane average American knows that. Even Richard Nixon’s own Justice Department knew that. Four days before he resigned, the Office of Legal Counsel said the president cannot pardon himself due to the “fundamental rule that no one may be judge in his own case.”
Where is that rule? Not in the Constitution.
But it’s part of what makes America America and not, say, Egypt.
If Donald Trump pardons himself, it would result in two things: a clear admission of guilt (of what crime we don’t know) and obstruction of justice.
Anyone who accepts a pardon is admitting that a crime exists for which to be pardoned. If that were not the case, there would be no reason to accept a pardon.
Moreover, pardoning the subject of an ongoing investigation (i.e., Trump) would be interfering in the due process of law. An admission of guilt and obstructing due process of law could be offenses worthy of impeachment and removal.
Stay focused on obstruction. Do not pay attention to talk about the president’s power to end whatever federal investigation he sees fit to end. This is the argument being put forth by Ruby Giuliani, who’s now representing Trump. Again, it’s bullshit.
The point is not whether a president has those powers. The point is whether using those powers, in this case the power to pardon, is a corrupt abuse of power. Specifically, the point is about the corrupt abuse of power to obstruct justice.
Impeachment is clearly top-of-mind for Trump’s attorneys. Otherwise, they would not be trying to prevent Mueller from interviewing or subpoenaing the president. Per the Times: “Mr. Trump’s lawyers fear that if he answers questions, either voluntarily or in front of a grand jury, he risks exposing himself to accusations of lying to investigators, a potential crime or impeachable offense.” In other words, they all know.
They know this argument—that Trump cannot obstruct justice and that Trump can pardon himself—is bullshit. All of it. Every single word. If they believed that the president has the right to be his own judge, his attorneys would not stand in Mueller’s way. If they believed the president can pardon himself, they would not be concerned about perjury or any other crime. Why bother? The president is above the law.
They know, but they are saying it anyway, because impeachment is a political process for which they are getting a head start by sowing seeds of doubt where there are none.
Preet Bharara was US Attorney for the Southern District of New York before President Trump fired him. He’s now a legal analyst for CNN. On Twitter this morning, he encouraged the president to pardon himself for the obvious reason that doing so would lead eventually to impeachment and removal from office.