President Trump isn’t much for giving apologies, but he’s becoming an aficionado of granting pardons. In a tweet Monday morning, the president asserted that he can pardon himself, though he hastened to add that he had “done nothing wrong”:
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!— Donald J. Trump (@realDonaldTrump) June 4, 2018
It is a remarkable statement of presidential power. Where Richard Nixon insisted to David Frost that “when the president does it, that means it is not illegal,” Trump is gesturing toward a different argument: When the president does it, it doesn’t really matter whether it’s legal or not because he can just pardon himself anyway.
There’s an inherent dissonance in Trump’s statement: If he has done nothing wrong, why is he eager to assert that he has the power to pardon himself? The White House has in the past denied that Trump was even considering pardoning himself, but Trump has lately been wielding his pardon power in an unusual and politically motivated fashion.
This is not the first time that the idea of a presidential self-pardon has come up. Last July, The Washington Post reported that Trump had asked about his ability to grant pardons to himself or family members. Then-White House Communications Director Anthony Scaramucci and Trump lawyer Jay Sekulow both insisted the report was untrue, though the president hedged in a tweet: “While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us.FAKE NEWS.”
The president’s assertion comes after a series of pardons that are atypical in timing and in recipient. They have overwhelmingly gone to conservative political celebrities: former Sheriff Joe Arpaio, convicted of contempt of court; former Dick Cheney aide Scooter Libby, convicted of perjury; and, most recently, pundit Dinesh D’Souza, convicted of campaign-finance fraud. (Trump also pardoned a sailor convicted of illegally taking photos on a submarine and the late boxer Jack Johnson, and has floated a pardon and commutation for Martha Stewart and former Illinois Governor Rod Blagojevich, respectively, both of whom are Democrats and were involved in The Apprentice.)
These moves have led critics to worry that Trump is either telegraphing to friends caught up in the Russia investigation that he will pardon them; laying the groundwork to normalize plainly political pardons, including perhaps his own; or both.
The thing about Trump’s pardons for Arpaio and D’Souza in particular—as well as any hypothetical pardon for himself—is that they are at once outrageous and at the same time likely legal. The presidential pardon power is extremely broad and is enumerated in the Constitution. No president has ever tried to pardon himself, so it’s an untested proposition whether courts would allow it, though some legal scholars believe it’s possible.
Yet a self-pardon would be, ironically, self-incriminating, indicating that the president at the very least believed he was likely to be charged with a crime, even if he didn’t believe he committed one. Moreover, it would make it much easier for a president to commit crimes with less fear of repercussions. The only recourse would be removal by Congress.
For this reason, Trump lawyer Rudy Giuliani has argued that the president would not pardon himself. “The president of the United States pardoning himself would just be unthinkable,” he told NBC’s Chuck Todd on Sunday. “And it would lead to probably an immediate impeachment. You know you get your House, Senate would be under tremendous pressure.” Chris Christie, the former governor of New Jersey and a Trump confidant-turned-occasional critic, said the same.
Nonetheless, the way that Trump and his allies are speaking about a self-pardon, and linking it to impeachment, looks a lot like a trial balloon. Republicans, as well as many Democratic leaders, believe that talk of impeachment will only help Trump and the GOP, so Giuliani may have ulterior motives for injecting it into the conversation. Moreover, speaking publicly about the president pardoning himself helps make it a topic of conversation and therefore potentially more acceptable. Even if it seems unthinkable and impeachment-inducing now, the story of Trump’s political career is repeatedly making the unthinkable not only thinkable, but real.
Pardons can grant reprieve from federal criminal law, but they do not apply to impeachment. Not only does the Constitution stipulate this, but impeachment, though it takes the form of a criminal proceeding, is a political rather than legal maneuver. That means that even if Trump blocked himself from future prosecution for a crime, Congress could still vote to impeach and even remove him, reasoning that he had lost the authority to govern.
Yet elsewhere in his comments to the press over the weekend, Giuliani undercut the case he is trying to make. (This is not the first time that the former New York mayor has offered a muddled message during his short tenure on the Trump legal team.) In fact, in some instances he actually unwittingly made a case for impeachment.
On ABC, George Stephanopoulos asked Giuliani about a January letter, revealed by The New York Times over the weekend, in which the president’s legal team argued that Trump could not be subpoenaed, nor could he commit obstruction of justice, because of his role as president. The letter discussed the president’s reaction after the Times reported on a June 2016 meeting at Trump Tower involving a Russian lawyer. The president, on Air Force One, dictated a misleading statement about what happened during the meeting. The White House has publicly denied that he dictated the statement, but the letter states, “You have received all of the notes, communications and testimony indicating that the President dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr.”
Giuliani said on ABC that this exemplified the case against Trump speaking to Mueller. “This is the reason you don’t let the president testify,” he said. “If, you know, every—our recollection keeps changing, or we’re not even asked a question and somebody makes an assumption.”
This sounds a lot like Giuliani is saying his client can’t reliably stick to the facts. He argued that because the White House lied about the president misleading about the meeting, there was a great danger he’d lie in a deposition. (As I’ve written, however, Trump is surprisingly candid in depositions, of which he has done more than 100.) Stephanopoulos noted that the articles of impeachment for Bill Clinton, as well as those drafted for Nixon, pointed out that the men had lied to the public. This is not a crime, but it is a potentially impeachable political offense, if members of Congress deem it sufficiently serious.
“In no case can he be subpoenaed or indicted,” he said. “I don’t know how you can indict while he’s in office. No matter what it is.”
Giuliani added, “If he shot James Comey, he’d be impeached the next day. Impeach him, and then you can do whatever you want to do to him.”
In broad strokes, Giuliani has a point. Most scholars and government lawyers have concluded that the president cannot be indicted while in office (though there are some interesting dissenting views). Whether this is also true of murder is unclear; needless to say, the Framers did not seem to consider this particular hypothetical.
Yet even if he is legally correct, this is a politically questionable statement. First, the hypothetical he used—echoing Trump’s 2016 boast that he could shoot someone on Fifth Avenue and retain his political support—reinforces the idea of a White House behaving as though it is above, or at least beyond, the law. Second, the clear implication is that impeachment is a reasonable and even salubrious solution to a lawless president.
Impeachment still depends, however, on the will of the House and Senate. Giuliani and Christie each contend that a pardon would not happen because Congress could impeach, but that seems like it begs the question. There’s little about the GOP-led Congress’s supine approach to the Trump White House that suggests members would rush to impeach if the president granted himself a reprieve—which is just another reason why Trump might be eager to normalize the concept of self-pardon.