13:47, June 04 45 0 theguardian.com

2018-06-04 13:47:07
Can Trump actually pardon himself? Experts weigh in

Donald Trump, who has not been charged with any crime, asserted on Twitter Monday morning that he had “the absolute right to pardon” himself.

Donald J. Trump (@realDonaldTrump)

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!

June 4, 2018

Is Trump right? We asked legal scholars, former justice department officials and others whether a president may self-pardon. Multiple respondents set aside the technical constitutional question, which is a matter for debate, to make a broader point about how unprecedented, “shocking” and “disturbing” it was for a president to make such an assertion.

Here is a roundup of reactions to the president’s tweet, to be updated:

‘More in keeping with people like Erdoğan and Putin’

Louis Michael Seidman, professor of constitutional law at Georgetown University, in a phone conversation with the Guardian:

There’s a sense in which as a legal matter it is irrelevant, because I think it’s very unlikely that the president will be indicted. But as an expression of the president’s views of his powers, it’s very disturbing. It suggests that he has views more in keeping with people like Erdoğan in Turkey and Putin in Russia.

In a constitutional republic, the president has an obligation to obey the law. Part of his oath of office is to take care that the laws be faithfully executed, and pardoning himself is not the faithful execution of the laws. So in that sense it is a really shocking assertion. … Ultimately the American people have to decide for themselves whether this person is fit to be president, and how they’re going to decide is still very much up in the air.

No president has ever tried to pardon himself. I think the clearest historical analogy is when President Nixon said after he left office that if the president did it, then it wasn’t illegal. Until now, that has widely been taken to be part of the reason why president Nixon had to resign, because he had those views. It now appears that our current president has similar views and that’s just very disturbing.

‘I have no patience for theoretical arguments on this issue’

Elizabeth de la Vega, former federal prosecutor, via email:

Of course, the president is not above the law. Indeed, I have no patience for theoretical arguments on this issue. The president shows gross disregard for the constitution and our justice system daily; he’s rampaging through it like Atilla the Hun. Rather than swirling off into an abstract frenzy in response to Trump’s manic tweets, let us ask, relentlessly, what, specifically, does the president propose to pardon himself for?

Unless and until he answers that question, we should steadfastly avoid allowing him to draw us into debating his insane and ephemeral legal-sounding pronouncements. It’s quite enough to say: ‘No, you’re not above the law, Mr President. Tell us what crimes you’ve committed. Tell us what you propose to pardon yourself for. Then we’ll talk.’

‘Complications in how the law applies’

Keith Whittington, a professor of politics at Princeton University specializing in constitutional theory, via email:

The president is not, of course, above the law, but there are certainly complications in how the law applies to him. In his official actions, he is subject to familiar checks and balances, including the possibility of judicial review of his decisions. The more immediate problem is how a president might be held accountable if he were to commit a criminal offense. The president is not immune from criminal liability simply because he is president, but I do think that criminal prosecution would be incompatible with the president fulfilling the duties of his office. I would assume that impeachment and removal would proceed quickly if there were substantial evidence that the president had committed a serious crime, and that prosecution in the ordinary courts would soon follow.

In President Trump’s case, there are more thorny issues regarding whether the exercise of his constitutional powers can give rise to criminal prosecution for obstruction of justice. No doubt a president could obstruct justice in myriad ways, but it is not at all clear that it could be a criminal act for the president to exercise his lawful power to direct a federal prosecutor to end an investigation or to remove a subordinate executive officer from his duties. The power of the president to pardon individuals for federal criminal offenses has generally been regarded as unreviewable and completely subject to his own discretion. The president could surely issue a valid pardon to his own associates (though abusing his pardoning power might itself be an impeachable offense). It is less clear that the president could issue a pardon to himself. Conceptually, the pardon is an act of mercy, and that would seem to imply that it is only possible to bestow mercy on someone else and so there is an implicit bar against a self-pardon. Certainly, attempting to do so could be regarded as an impeachable offense as an abuse of power, but whether a court should ultimately respect the validity of such a pardon is a much more difficult question.

‘A dictator or a king, not a president’

Renato Mariotti, former federal prosecutor, via email:

Lately the president and his team have made unusual and extreme legal arguments. They’ve argued that Trump can pardon himself, that he has unlimited power to investigate his enemies and stop investigations of his friends, and that he can’t obstruct justice because he has unlimited prosecutorial power. These sound like the powers of a dictator or king, not a president.

Many legal experts call these arguments “novel”. That is accurate because no president has ever publicly made these arguments before. But it doesn’t go far enough. The reason these arguments have never been made before is that they are extreme and dangerous. Although the arguments are without precedent, it is hard for me to believe that courts would conclude that the president can commit crimes with impunity and abuse prosecutorial power for his own gain.

‘I don’t think a president should pardon themselves’

Kevin McCarthy, the Republican House majority leader, to CNN one day before the president’s tweet:

The president is not saying he’s going to pardon himself. I don’t know why we’re walking through hypotheticals here in this process. The president has never said he’d pardon himself. I don’t know where the president would go forward pardoning himself.

I don’t think a president should pardon themselves.

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‘Likely legally ineffective’

Andy Wright, a former White House associate counsel and a professor at Savannah Law School, writing for Just Security in July 2017

Three days before [Richard] Nixon resigned, OLC [the Office of Legal Counsel] issued an opinion that ‘[u]nder the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself’. Most legal experts supported that view, although the arguments as to why vary from natural law (first principles such as ‘no man can be a judge in his own case’) to constitutional structure (a self-pardon would defeat the purposes of article I, section 4, which expressly allows officeholders removed by impeachment to be subject to criminal prosecution). A handful of Republican members of Congress cited the possibility of self-pardon as a justification for their votes to impeach Bill Clinton, which is discussed in the introduction to this Oklahoma Law Review article. While some doubt remains about whether the president has the authority to pardon himself, a self-pardon is most likely legally ineffective from shielding a president from future federal prosecution.

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