Team Trump continues to be all over the place on the issue of pardons. Mooch says one thing. Jeff Sekulow says something else. The president* says something entirely different. They *do* seem to agree that the pardon power is absolute just like the Insult Comedian likes his powers. I do not agree and neither do some people who know what they’re talking about.
The self-pardon issue is a non-starter according to our old friend Larry Tribe, former GW Bush ethics lawyer Richard Painter, and former Obama ethics counsel Norman Eisen. They cite history something with which the president* is only vaguely acquainted:
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.
The only non-Trumper thus far to claim that the president*can pardon himself is Jonathan Turley. I knew him when he taught at Tulane law school, but he’s the Slate of legal experts, a constant and consistent contrarian. Read his piece anyway but he’s more likely than not wrong. I hedge my bets because this issue has never been tested in court: no previous president ever contemplated a self-pardon as I pointed out last Friday.
I’m also dubious that the pardon power is as absolute as the Trumpers or the well-meaning knuckleheads at Vox think it is. There’s a thought-provoking piece in the NYT by two University of Chicago law professors that argue that some pardons *could* be crimes:
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.
Speaking of disputed, untested areas of the law ,one often hears that a president cannot be indicted while in office. That’s based on a finding by the Nixon Justice Department and the fact that Leon Jaworski’s office made Tricky an “unindicted co-conspirator.” It turns out that Ken Starr’s office believed a president *could* be indicted while in office. Would that be wise? Beats the hell out of me but it’s not settled law.
In addition to Trump’s crazy interview with the Failing NYT, the reason this is arising at this point is that the Insult Comedian is *implying* that he will not allow *any* investigation into his family’s sleazy financial dealings. He, of course, does not get to choose what Bob Mueller’s office investigates. They have a broad mandate and anything they stumble into in the course of their investigation is fair game. Trump does not like that, which is why he may provoke a constitutional crisis unless Congressional Republicans make it clear that removing Mueller is a bridge too far. So far, their collective heads remain lodged up Trump’s ample ass.
In my experience, people who act this guilty usually are. Team Trump seems to think that all they have is a PR problem, which will go after squirting some Mooch juice all on it. The White House has a crime problem and all the smears in the world will not alter that. Repeat after me: Bob Mueller is a Republican who was appointed FBI director by a Republican president. He did such a good and non-partisan job in that post that he was re-appointed by a Democrat. Mueller is a straight shooter and if Team Trump are not guilty of any crimes, his office will say so. If they were genuinely not guilty, they’d let him do his job. Threats against Team Mueller are a tacit acknowledgement of guilt. If the White House had a lick of sense, they would back down and let Team Mueller do its job, but they don’t so they won’t.
In the immortal words of Bette Davis as Margo Channing:
That concludes this essay on the daily constitutional crisis.