Lord, protect us all from “really interesting constitutional” questions should be part of every inaugural prayer. This weekend, Trump counsel Rudy Giuliani described as a “really interesting constitutional argument” his contention that the president “probably” could pardon himself.
“Really interesting constitutional argument” for presidents fall in the same category as “really interesting improvised explosive devices” for bomb disposal experts. They are interesting to the same degree as they are lethal.
President Trump appears on course to answer many such “interesting questions” on the meaning of emoluments or the ability of prosecutors to charge a president with obstruction in firing senior executive officials. The answers to some of these interesting questions are not likely to be the ones that Trump hopes for.
For example, despite the bravado of the recent letter to special counsel Robert Mueller on Trump’s ability to simply ignore a subpoena, Mueller is likely to prevail in such a fight. However, on self-pardons it is Trump who has the advantage, though this is one interesting question he would be wise to leave unanswered.
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Whether a president can grant himself a pardon is a question that has long fascinated academics. It has never been answered since, thankfully, no president had had the reason or the temerity for such a self-dealing abuse of power. Trump’s recent uses of pardon authority, however, are widely viewed as signaling to Mueller’s targets that the president could act to gut the investigation with a barrage of pardons, including for himself.
In his emblematic (and enigmatic) style, Trump’s longtime friend (and potential target) Roger Stone took to the airwaves to translate the president’s hidden message: “The special counsel has awesome powers, as you know, but the president has even more awesome powers.”.
To use Stone’s “awesome” rating of powers, pardon authority is … Well … The awesomest.
Article II, Section 2, of the Constitution defines the pardon power as allowing a president to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” There is no language specifying who may or may not be the subject of a pardon. The president is simply given the power to pardon any federal crime.
As a textual matter, there is nothing to prevent Trump from adding his own name to the list of pardoned individuals. And Trump agrees, according to this tweet from Monday morning:.
Some have wrongly claimed that a line in the Constitution bars self-pardons. Some — such as Harvard professor Laurence Tribe, Minnesota professor Richard Painter and Brookings Institution fellow Norman Eisen have claimed that the final words of Article II, Section 2, bar self-pardons. They claim that “the Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal,” and “that provision would make no sense if the president could pardon himself.”.
While there are arguments against self-pardons as improper forms of “self-dealing,” this is not one of them.
The language in question has nothing to do with a self-pardon or even most pardon controversies. It simply means that a president cannot use pardon authority to prevent the impeachment of an executive branch official (including himself). Thus, if Trump pardoned himself, it would not bar an impeachment. Indeed, it could well be included among the articles of impeachment.
A simple line is drawn in the Constitution: Impeachments concern the office holder, while pardons concern the individual. A president can pardon someone who is not even charged with a crime, but that pardon for a judge or an executive branch official will not bar removal from office.
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That makes perfect sense. What does not make sense is the idea that the Framers would debate this and other presidential powers while leaving this major limitation unstated.
These authors and others also point to a line in the impeachment provision that states anyone impeached and convicted “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”.
Again, this only states that impeachment does not alter the status of these officials. They remain liable for prosecution. Again, impeachment goes only to their status as an office holder. Indeed, a judge or official could receive a pardon before assuming office.
None of this is to say that this is an easy question, or that there are not good arguments for barring self-pardons. I wish the Framers had put in such language, but they did not.
Presidents have engaged in all forms of self-dealing. Trump has engaged in open nepotism with the selection of his family members as high-ranking White House officials. Bill Clinton not only appointed his own wife to head a major federal commission on health care but pardoned his own half-brother. The Framers did not bar such forms of self-dealing any more than they barred self-pardons. What they did put into the Constitution is a process for changing such provisions, not through judicial fiat but constitutional amendment.
There is no evidence that any president has ever seriously considered such a reprehensible and ignoble act. Giuliani denies that Trump is considering such a move and admitted that such an act is likely viewed by the president as “unthinkable and (would) probably lead to immediate impeachment.”.
That would be more convincing if the Trump team were not threatening total war with Mueller over the special counsel’s authority and the president’s inherent powers.
The Trump team should think seriously about triggering these fights over subpoena, charging and pardoning powers. Bad cases can make bad law — even when they are “really interesting.”.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley.