No, Trump can’t pardon himself. The Constitution tells us so.Wahington Post
July 21, 2017
http://wapo.st/2gQVsxJ?tid=ss_mail&utm_term=.54eb818bf00dBy Laurence H. Tribe, Richard Painter and Norman Eisen July 21 at 7:58 PM
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.
The pardon provision of the Constitution is there to enable the president to act essentially in the role of a judge of another person’s criminal case, and to intervene on behalf of the defendant when the president determines that would be equitable. For example, the president might believe the courts made the wrong decision about someone’s guilt or about sentencing; President Barack Obama felt this way about excessive sentences for low-level drug offenses. Or the president might be impressed by the defendant’s subsequent conduct and, using powers far exceeding those of a parole board, might issue a pardon or commutation of sentence.
Other equitable considerations could also weigh in favor of leniency. A president might choose to grant a pardon before prosecution of a person when the president believes that the prosecution is not in the national interest; President Gerald Ford pardoned Nixon in part for this reason.
Or a president may conclude that even if a person may have committed a crime, he was acting in good faith to protect the national interest; President George H.W. Bush pardoned former defense secretary Casper Weinberger in the Iran-contra affair in part for this reason.
In all such instances, however, the president is acting as a kind of super-judge and making a decision about someone else’s conduct, the justice of someone else’s sentence or whether it is in the national interest to prosecute someone else. He is not making a decision about himself.
Self-pardon under this rubric is impossible. The foundational case in the Anglo-American legal tradition is Thomas Bonham v. College of Physicians, commonly known as Dr. Bonham’s Case. In 1610, the Court of Common Pleas determined that the College of Physicians could not act as a court and a litigant in the same case. The college’s royal charter had given it the authority to punish individuals who practiced without a license. However, the court held that it was impermissible for the college to receive a fine that it had the power to inflict: “One cannot be Judge and attorney for any of the parties.”
The Constitution embodies this broad precept against self-dealing in its rule that congressional pay increases cannot take effect during the Congress that enacted them, in its prohibition against using official power to gain favors from foreign states and even in its provision that the chief justice, not the vice president, is to preside when the Senate conducts an impeachment trial of the president.
The Constitution’s pardon clause has its origins in the royal pardon granted by a sovereign to one of his or her subjects. We are aware of no precedent for a sovereign pardoning himself, then abdicating or being deposed but being immune from criminal process. If that were the rule, many a deposed king would have been spared instead of going to the chopping block.
We know of not a single instance of a self-pardon having been recognized as legitimate. Even the pope does not pardon himself. On March 28, 2014, in St. Peter’s Basilica, Pope Francis publicly kneeled before a priest and confessed his sins for about three minutes.
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 discussion with 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.
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If Trump Pardons, It Could Be a CrimeNew York Times
July 21, 2017
By DANIEL HEMEL and ERIC POSNER JULY 21, 2017
https://www.nytimes.com/2017/07/21/opinion/if-trump-pardons-crime-russia.htmlPresident Trump and his lawyers have discussed whether he could pardon his relatives and aides to undercut, or even end, the special counsel’s investigation into charges that his campaign colluded with Russia to influence the 2016 election, The Washington Post reported on Thursday night.
There’s no question that with a stroke of his pen, Mr. Trump can shield his son Donald Trump Jr., his son-in-law, Jared Kushner, and other close associates from potential prosecution. Despite the uproar that would set off, we know by now that Mr. Trump loves the grand gesture, whatever the consequences. Besides, his family is at stake.
While his authority to pardon is crystal clear, a crucial, threatening, legal ambiguity should make him think twice about using this authority.
The Constitution gives the president “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The framers had sound reasons for bestowing that authority. As Alexander Hamilton explained, criminal law in the late 18th century was so severe that without the pardon power to soften it, “justice would wear a countenance too sanguinary and cruel.”
Consistent with the framers’ design, the Supreme Court has interpreted the president’s pardon power broadly. The president can pardon anyone for any crime at any time — even before a suspect has been charged. Congress cannot withdraw presidential pardons, and prosecutors and courts cannot ignore them.
But could a pardon be a criminal abuse of power? Some would argue that would contradict the founders’ vision of unlimited pardon authority. If a president sold pardons for cash, though, that would violate the federal bribery statute. And if a president can be prosecuted for exchanging pardons for bribes, then it follows that the broad and unreviewable nature of the pardon power does not shield the president from criminal liability for abusing it.
The Justice Department and the F.B.I. proceeded on this premise in 2001 when they opened an investigation into possible bribery charges arising out of President Bill Clinton’s pardon of the fugitive financier Marc Rich, whose former wife had donated $450,000 to Clinton’s presidential library. The investigation lasted until 2005, though no charges resulted.
Of course, bribery would not be the relevant crime. No one thinks that Donald Jr. or Jared Kushner — or anyone else involved in the Russia scandal — would pay the president for a pardon.
Yet federal obstruction statutes say that a person commits a crime when he “corruptly” impedes a court or agency proceeding. If it could be shown that President Trump pardoned his family members and close aides to cover up possible crimes, then that could be seen as acting “corruptly” and he could be charged with obstruction of justice. If, as some commentators believe, a sitting president cannot be indicted, Mr. Trump could still face prosecution after he leaves the White House.
There is strong support for the claim that the obstruction statutes apply to the president.
In 1974, when the House Judiciary Committee voted to impeach President Richard Nixon, members on both sides of the debate acknowledged that presidential obstruction of justice was not only impeachable but also criminal. A quarter century later, the Senate split 50-50 on whether to remove President Clinton from office on obstruction charges, but senators from both parties agreed that the obstruction laws applied to the president.
There is a broad consensus that a president exercises the pardon power properly — not “corruptly” — when he grants clemency based on considerations of mercy or the public welfare. President Gerald Ford invoked both of those values when he pardoned Nixon: He said that a prosecution of the former president would be too divisive and that Nixon had suffered enough. President George H.W. Bush gestured to both values when he pardoned former Reagan administration officials for their involvement in the Iran-contra scandal.
In Trump’s case, the question would be whether he was acting out of the goodness of his heart, or covering up for his family, his associates and himself.
We expect — and hope — that prosecutors and courts would give wide latitude to a president in evaluating his pardon decisions. Only in the most egregious cases should a president face criminal liability for actions taken while in office.
While the law on this subject is unsettled, that in itself should be unsettling to the president as he considers whether to grant clemency. Not only might the pardons constitute obstruction, but the pardoned individuals might be compelled to testify against Mr. Trump without any recourse to the Fifth Amendment right against self-incrimination, since they would no longer have any concern about incriminating themselves.
He could ensure that his family members and aides get off scot-free for any crimes they may have committed during the 2016 campaign. But by extricating those individuals from a legal predicament, he might make his own predicament worse.
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Can the President Be Indicted? A Long-Hidden Legal Memo Says YesNew York Times
July 22, 2017
By CHARLIE SAVAGE JULY 22, 2017
https://www.nytimes.com/2017/07/22/us/politics/can-president-be-indicted-kenneth-starr-memo.htmlWASHINGTON — A newfound memo from Kenneth W. Starr’s independent counsel investigation into President Bill Clinton sheds fresh light on a constitutional puzzle that is taking on mounting significance amid the Trump-Russia inquiry: Can a sitting president be indicted?
The 56-page memo, locked in the National Archives for nearly two decades and obtained by The New York Times under the Freedom of Information Act, amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.
“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”
Mr. Starr assigned Ronald Rotunda, a prominent conservative professor of constitutional law and ethics whom Mr. Starr hired as a consultant on his legal team, to write the memo in spring 1998 after deputies advised him that they had gathered enough evidence to ask a grand jury to indict Mr. Clinton, the memo shows.
Other prosecutors working for Mr. Starr developed a draft indictment of Mr. Clinton, which The Times has also requested be made public. The National Archives has not processed that file to determine whether it is exempt from disclosure under grand-jury secrecy rules.
In 1974, the Watergate special counsel, Leon Jaworski, had also received a memo from his staff saying he could indict the president, in that instance Richard M. Nixon, while he was in office, and later made that case in a court brief. Those documents, however, explore the topic significantly less extensively than the Starr office memo.
In the end, both Mr. Jaworski and Mr. Starr let congressional impeachment proceedings play out and did not try to indict the presidents while they remained in office. Mr. Starr, who had decided he could indict Mr. Clinton, said in a recent interview that he had concluded the more prudent and appropriate course was simply referring the matter to Congress for potential impeachment.
As Robert S. Mueller III, the special counsel in the latest inquiry, investigates the Trump campaign’s dealings with Russia and whether President Trump obstructed justice, the newly unearthed Starr office memo raises the possibility that Mr. Mueller may have more options than most commentators have assumed. Here is an explanation of the debate and what the Starr office memo has to say.
Why do some argue presidents are immune?
Nothing in the Constitution or federal statutes says that sitting presidents are immune from prosecution, and no court has ruled that they have any such shield. But proponents of the theory that Mr. Trump is nevertheless immune for now from indictment cited the Constitution’s “structural principles,” in the words of a memo written in September 1973 by Robert G. Dixon Jr., then the head of the Justice Department’s Office of Legal Counsel.
This argument boils down to practicalities of governance: The stigma of being indicted and the burden of a trial would unduly interfere with a president’s ability to carry out his duties, preventing the executive branch “from accomplishing its constitutional functions” in a way that cannot “be justified by an overriding need,” Mr. Dixon wrote.
In October 1973, Mr. Nixon’s solicitor general, Robert H. Bork, submitted a court brief that similarly argued for an “inference” that the Constitution makes sitting presidents immune from indictment and trial. And in 2000, Randolph D. Moss, the head of the Office of Legal Counsel under Mr. Clinton, reviewed the Justice Department’s 1973 opinions and reaffirmed their conclusion.
What was the Starr office’s stance?
In laying out his case, Mr. Rotunda played down arguments that permitting a president to be indicted would cripple the executive branch. Instead, he placed greater emphasis on immunity issues that the Nixon — and, later, Clinton — legal teams dismissed.
Among them, he noted that the Constitution’s speech-or-debate clause explicitly grants limited immunity to lawmakers for certain actions. “If the framers of our Constitution wanted to create a special immunity for the president,” he argued, “they could have written the relevant clause.”
He also wrote that the 25th Amendment, which allows for temporary replacement of a president who has become unable to carry out the duties of the office, created a mechanism that would keep the executive branch from becoming incapacitated if the president was on trial.
And he noted that if indictments had to wait until a president’s term was up, some crimes would become untriable — such as those where the statute of limitations had run out. That could happen for crimes that do not rise to an impeachable offense, he wrote, citing the example of a president who punches an irritating heckler.
“No one would suggest that the president should be removed from office simply because of that assault,” he wrote. “Yet the president has no right to assault hecklers. If there is no recourse against the president, if he cannot be prosecuted for violating the criminal laws, he will be above the law.”
What has the Supreme Court said?
The Supreme Court has never addressed the question of whether a sitting president can be indicted and tried. But in a landmark 1997 ruling, Clinton v. Jones, it permitted a lawsuit against Mr. Clinton for unofficial actions — accusations of misconduct before he became president — to proceed while he was in office.
In his 2000 memo, Mr. Moss dismissed this ruling, emphasizing that the burdens of being a criminal defendant were greater than the burdens of being sued by a private litigant. But in the Starr office memo, Mr. Rotunda deemed the ruling far more significant for the criminal question.
“If public policy and the Constitution allow a private litigant to sue a sitting president for acts that are not part of the president’s official duties (and are outside the outer perimeter of those duties), and that is what Clinton v. Jones squarely held,” he wrote, “then one would think that an indictment is constitutional because the public interest in criminal cases is greater.”
Could Mueller go where no prosecutor has before?
Even if Mr. Mueller were to uncover sufficient evidence to indict Mr. Trump, decide that the legal arguments in the Starr office memo were correct and conclude that he wanted to ask a grand jury for an indictment while Mr. Trump is president — all big ifs — yet another uncertainty would loom: whether he must accept the Office of Legal Counsel’s analysis, even if he disagreed with it.
The Justice Department’s regulations give Mr. Mueller, as a special counsel, greater autonomy than an ordinary prosecutor, but still say he must follow its “rules, regulations, procedures, practices and policies.” They also permit Deputy Attorney General Rod J. Rosenstein to overrule Mr. Mueller if he tries to take a step that Mr. Rosenstein deems contrary to such practices.
There is no guiding precedent about whether Office of Legal Counsel memos would fall into that category, or if a special counsel is free to reach his own legal judgments. But as Mr. Mueller’s office investigates, the ambiguity about the rules could influence calculations in the Trump camp about how much to cooperate and how much to fight, said Renato Mariotti, a former federal prosecutor turned defense lawyer.
“I would be surprised if Mueller indicted the president for the same prudential reasons that swayed Starr,” Mr. Mariotti said. “But the specter that he might do that could have an impact on things. If I were on the president’s team, I would say, ‘I don’t think it’s likely that he would, but it’s possible,’ depending on what the facts are.”
