President Trump has used his bully pulpit to announce a remarkable constitutional position: He can pardon himself.
He is in effect saying that he could commit murder, pardon himself and the only recourse would be removal from office. Does any reasonable voter really think that is the constitutional system the Framers set up? If so, revolting against King George III seems like a big waste of time. Why throw off one absolute monarch for a non-hereditary president who can murder, rob, extort, etc. and then give himself a get-out-of-jail free pass?
Faced with implications of their theory, Trump defenders may say that while he can pardon himself of crimes he can still be impeached. Sorry, but impeachment is no substitute for conviction under the same laws that apply to everyone; otherwise a president could act with legal impunity, so long as he didn’t mind leaving office. He would, under that theory, get to operate outside the laws that apply to all Americans — and suffer no similar consequence. (“The president’s lawyers and allies are asserting that he is endowed with such bounteous constitutional powers that he can ultimately swing a scythe across law enforcement institutions that might constrain or restrain him – if the president so chooses, but which [Rudolph] Giuliani assures us he would never choose to do,” writes Timothy O’Brien.)
Even more horrifying than the assertion of a self-pardon power, Republicans are not rushing forth to reject Trump’s frightening assertion. Their cowardice is shortsighted. They’d best watch out for the avalanche of hard questions and damning ads for the midterms.
Jerrold Nadler (N.Y.), the ranking Democrat on the House Committee on the Judiciary, released a statement on Monday, while foretells the peril to Republicans who refuse to object to Trump’s articulation of impunity from criminal laws. “No President has ever attempted to pardon himself. The Framers of the Constitution understood the idea. James Madison told Edmond Randolph that the notion of a self-pardon was inherently corrupt, and argued that the Congress would surely act to remove such a President,” Nadler wrote. “These men had just fought a war against a king, and had no intention of turning their new nation over to another. He continued:
President Trump may pressure the Director of the FBI to drop an investigation into his National Security Advisor, he may later fire that FBI Director, and he may engage in a months-long campaign to portray his own Department of Justice as corrupt—but if he does so with the specific intent to obstruct the work of the Special Counsel, then he may have committed a crime. No President is above the law.
“Finally, the President must comply with a properly issued subpoena. Yes, he is the President and, yes, as his attorneys argue, he has important work to do—but as the Supreme Court observed in U.S. v. Nixon, executive privilege is overcome by a specific request for evidence in an ongoing investigation. Special Counsel Mueller can almost certainly compel the President’s testimony if he requires it.
While it is correct that no court has ever ruled on self-pardoning nor ruled on the criminal liability of a president after he left office (If Nixon couldn’t obstruct justice why did President Gerald Ford bother with a pardon?), the issue, ironically, is now primarily a political one. Voters will get to decide if they want to elect Republicans who won’t rebut the president’s assertion of absolute power.
In every House and Senate election, the Republican candidate should be compelled to answer the following:
- Can a president obstruct justice, by say falsifying or destroying evidence or encouraging witnesses to lie?
- If he does so, can he be prosecuted either in office or after leaving?
- If a president is found to have obstructed justice should he be impeached? Must he be impeached?
- Can a president pardon himself? If he asserts such power, should he be removed from office before he can do so and escape the consequences of illegal conduct?
- If a president can pardon himself, why could he not commence a crime spree once in office and then leave the White House with the proceeds of his crimes?
Republicans who support Trump’s stunning claims of executive power cannot be entrusted with federal office; they cannot honestly take their oath to defend the Constitution while signaling to the president the latter is beyond the reach of criminal justice. By the way, to the extent Republicans have remained mum and tolerated one constitutional outrage after another, voters are entitled to conclude that they should not be trusted with the responsibilities of political office even if they now mouth the right words.
The issue for the midterms is not whether Democrats are scheming to impeach Trump. (Unless they get Republicans to go along, Democrats almost certainly would not go down that road for fear of allowing Trump to claim vindication when acquitted the Senate.) The question is whether voters should ever trust candidates for Congress who are willing to accept a president’s audacious claims of power — but only when it is a president of the same party.
In short, unless Republicans speak with one voice to reject emphatically Trump’s claim he cannot be prosecuted for crimes and can in any event self-pardon, it’s hard to see why they would not disqualify themselves from office.