He can’t, unless he can
On Friday the Post ran an editorial by Laurence Tribe, Richard Painter, and Norm Eisen, titled No, Trump can’t pardon himself. The Constitution tells us so.
Can a president pardon himself? Four days before Richard Nixon resigned, his own Justice Department’s Office of Legal Counsel opined no, citing “the fundamental rule that no one may be a judge in his own case.” We agree.
The Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law.
The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.
But Trump doesn’t care what makes sense and what doesn’t, so could he and his people just go ahead and do it anyway? Is there anyone who can stop him who would stop him? Millions of people would if they could, but among people who actually can, I don’t know what the numbers are.
President Trump thinks he can do a lot of things just because he is president. He says that the president can act as if he has no conflicts of interest. He says that he can fire the FBI director for any reason he wants (and he admitted to the most outrageous of reasons in interviews and in discussionwith the Russian ambassador). In one sense, Trump is right — he can do all of these things, although there will be legal repercussions if he does. Using official powers for corrupt purposes — such as impeding or obstructing an investigation — can constitute a crime.
But there is one thing we know that Trump cannot do — without being a first in all of human history. He cannot pardon himself.
He would love to be a first in all of human history.
As you say, the question is who would stop Trump from pardoning himself? If he did, getting this before a court for a ruling may not be as easy as it sounds. It’s possible that a federal prosecutor could charge Trump and force a court to rule on whether it has the jurisdiction to set aside a prior self-pardon. But that would require three things: 1) a federal prosecutor willing to take the matter to court, 2) a court finding it has the jurisdiction to set aside a self-pardon despite the long-standing SCOTUS position that pardons are unfettered and a political question, and 3) a court finding a ban on self-pardon that is not explicitly set out in the Constitution.
My guess based is that if it got to court at all, the court would cop out and find it lacks the jurisdiction to review the self-pardon in order to avoid a ruling on the thorny Constitutional issue. If this ever got to the SCOTUS, I would expect a party-line ruling upholding the self-pardon.
This seems about as wishful thinking an article as Jennifer Rubin’s at WaPo breaking down how Trump is pretty much fucked. All her scenarios completely ignore the fact that the Republicans have a million-vote lock built into the House, and they’re all in on Trump; they don’t care about the role of law, only power, and they’re more than willing to walk the path of violence to consolidate it.
I’m not sure that’s 100% the case. Friends on Facebook who have inside knowledge say that a number of Republicans in Congress are privately saying they will turn on him if he fires Mueller and/or self-pardons.
I can only hope that that’s true, but on balance, I honestly don’t think either (or both) of those actions is anything more than the sum total of what the Republicans have had to swallow to get to this point. Perhaps there really is an additive limit to Trump’s awful, but if eviscerating every single political norm and nakedly profiting off of the office while nominating perjurers whose perjury was essentially immediately exposed wasn’t enough, I don’t know what is.
Anyway, I hope your friends are right, and I hope those Republicans’ private convictions make it out into public sooner rather than later. Evidence to date does not instill confidence.
Seth, I personally think the Republicans will stand behind Trump; they’re scared of his supporters, because they can’t win without them. If Trump splits the party, the Democrats could (theoretically) take back over. I say theoretically because the Dems are busy eating their own just as quickly.
As long as they think it is politically safer to play ball with Trump than to put him out of the game, they will play ball. They believe they have a (god-given) right to rule, that Democrats are systemically incapable of ruling, and they will do anything they can to stay in power, even if it means swimming in raw sewage. They have lost all sense of right and wrong (and while I would like to say #NotAllRepublicans, it’s getting harder and harder to think that there is any trace of the intellectual and/or principled wing of the party, which was always somewhat microscopic to begin with, at least since the Civil Rights era when they eagerly absorbed all the Dixiecrats who couldn’t stand the idea that they were being told they couldn’t keep people who didn’t look like them out of their schools and businesses anymore).