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 hasissued 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. “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” 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.