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Has Trump Found His “Get Out of Jail Free” Card?

By insisting he can pardon himself, the president has transformed a theoretical debate into a real one.

June 8, 2018

Pres­id­ent Trump’s 5:35 a.m. tweet Monday suggest­ing he has the “abso­lute right” to pardon himself is at once the act of a man clutch­ing at straws and of a man prepar­ing to use the nuclear option.

Faced with increas­ing pres­sure from Special Coun­sel Robert Mueller to testify in the probe of Russian inter­fer­ence in the 2016 elec­tion, Trump has squirmed, twis­ted, and floundered. He has raged at Attor­ney General Jeff Sessions. His lawyers have whined that requir­ing Trump’s testi­mony “demeans the Office of the Pres­id­ent before the world.” The one thing Trump has not done, appar­ently, is simply prepare for it. It seems he has been either too distrac­ted or furi­ous to get through more than a few prep ques­tions.

Awash in self-pity and a sense of perse­cu­tion, Trump has rifled through the Mono­poly deck and found its Get Out of Jail Free card: the consti­tu­tion’s awesome pardon clause.  With its random, Trumpian capit­al­iz­a­tion, the pardon provi­sion seems unlim­ited. The Pres­id­ent “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeach­ment,” it states.

Trump is “obsessed” with pardons, an unnamed White House staffer told the Wash­ing­ton Post Tues­day. In his first 500 days in office, Trump has issued six splash­dash pardons – each driven by the pres­id­ent’s idio­syn­cratic or celebrity fueled impulses and typic­ally with no seri­ous consid­er­a­tion of the merits.The Trump pardon roll includes former Mari­copa County Sher­riff Joe Arpaio, former Vice Pres­id­ent Dick Cheney’s Chief of Staff, Lewis “Scooter” Libby, and conser­vat­ive pundit Dinesh D’Souza.

Those pardons appear to have given Trump a taste of the unchecked power he so clearly wants. He wants it; he gets it—such is the pardon power of the pres­id­ent. In addi­tion to satis­fy­ing Trump’s crav­ing for manly action, the pardons likely have sent a hint to the current targets and indict­ees in the Mueller probe: Don’t cooper­ate, all will be fine in the end. (The signal may have been overt if reports are correct that former Trump lawyer John Dowd discussed pardons with lawyers for former National Secur­ity Adviser Michael Flynn and former campaign chair­man Paul Mana­fort.)

Still, the coun­try can with­stand a pres­id­ent’s unpop­u­lar, random or even improper pardons every once in a while. The rule of law didn’t fall apart when Pres­id­ent Bill Clin­ton pardoned fugit­ive billion­aire Marc Rich. It didn’t collapse when Pres­id­ent Barack Obama commuted the sentence of Oscar Lopez Rivera, who led a para­mil­it­ary organ­iz­a­tion for Puerto Rican inde­pend­ence. If Trump choses to pardon domestic doyenne Martha Stew­art or former Illinois Gov. Rod Blago­jevich, the repub­lic will survive.

Trump’s sugges­tion that he can pardon himself, together with his wink at the targets of the Russian elec­tion inter­fer­ence probe, however, take the unres­trained pardon power to a far more danger­ous place. It adds the pardon power to Trump’s consti­tu­tional crisis toolkit. Faced with the prospect losing a contest with Mueller over whether he will have to testify, Trump is now reach­ing for the strongest weapon to fight back: a self-pardon.

Numer­ous comment­at­ors have debated whether the pres­id­ent can pardon himself. Harvard Law Prof. Laurence Tribe, together with ethics watch­dogs Norman Eisen and Richard Painter, believe he cannot. “[T]he 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” means the pres­id­ent cannot pardon himself, they conclude, citing a Justice Depart­ment opin­ion writ­ten days before Richard Nixon resigned.

Unsur­pris­ingly, cheer­lead­ers for an imper­ial pres­id­ency disagree. “Pres­id­ent Trump can clearly pardon anyone — even himself — subject to the Mueller invest­ig­a­tion,” Berke­ley  Law School Prof. John Yoo wrote in the New York Times.

We are now very close to the point where this debate may jump from the arid confines of academia to the real world. The ques­tion, then, is not whether Trump can pardon himself: it is who will stop him when he does (prob­ably by tweet)?

Of course, Trump could pull back from the brink. “Why would I do that [self-pardon] when I have done noth­ing wrong?” Trump asked in the Monday tweet. A self-pardon would be an admis­sion of guilt. Worse from his perspect­ive, it would not get him out of testi­fy­ing against others since it would deprive him of his Fifth Amend­ment rights. (Trump could just pardon every­one involved in the Mueller probe to avoid that.)

For anyone bank­ing on Trump exer­cising self-restraint, I have a bridge in London to sell you.

Absent an unusual level of self-control by the pres­id­ent, there are only two ways to deal with a pres­id­en­tial self-pardon. The first is impeach­ment. "If the pres­id­ent were to pardon himself, he’ll get impeached,” Trump ally and former New Jersey Governor Chris Christie predicted. The pardon power may be vast, but it does not exempt the pres­id­ent from impeach­ment.

The impeach­ment prospect, in fact, may be the most power­ful inhib­i­tion prevent­ing Trump from self-pardon­ing. But he is test­ing its like­li­hood and work­ing to under­mine it. His constant attacks on the legit­im­acy of the invest­ig­a­tion (“witch hunt”) and denial of culp­ab­il­ity (“no collu­sion”) are an effort to garner polit­ical and popu­lar support for a likely effort to exterm­in­ate the inquiry, whether by firing Mueller or just pardon­ing every­one. When and if Trump pulls the trig­ger, he will do so know­ing that he has a core of fervent defend­ers, more than likely suffi­cient to win acquit­tal in Senate trial, much like Bill Clin­ton.

The second way to test whether Trump really can self-pardon is a full-blown legal chal­lenge precip­it­ated by an indict­ment. Should Trump pardon himself, Mueller could indict the pres­id­ent and then ask the courts to decide the pardon’s valid­ity. It’s a high stakes move, but one that could be justi­fied given how repug­nant a self-pardon is to the rule of law.

If that comes to pass, we may finally have the answer to whether Trump can self-pardon. But what a price to resolve what should be just a debate among persnick­ety academ­ics and histor­i­ans.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Image: iStock)