One small part of a confidential letter written early this year to special counsel Robert Mueller by the Trump legal team (before Giuliani came aboard) and leaked to the New York Times had the anti-Trump media in a dither all day Monday. Never mind that it concerned something entirely hypothetical: whether or not the President can be charged with obstruction of justice and if he has the constitutional authority to pardon himself.
Legal analysts were all over TV to discuss whether or not these things could happen. The way the talking heads were carrying on, hour after hour, about the President thinking he’s “above the law,” you’d have thought Trump actually HAD pardoned himself. And that’s exactly the impression they wanted to give, even though in reality he is not doing it and has no need whatsoever to do it. Why wait for an actual constitutional crisis that almost certainly will never happen when you can go right ahead and act one out?
Trump, bless him, assisted them in their effort to make him look guilty of something by tweeting that “numerous legal scholars” say “I have the absolute right to PARDON myself.” It’s not the first time he’s pointed this out, either; he tweeted something similar last July. I’m thinking the best way Rudy Giuliani can help him as his attorney is to just take his phone away and throw it into the Potomac.
Speaking of Rudy, he had to go on the air and deal with the veeeeery serious legal questions posed by George Stephanopoulos but found the whole topic amusing. Unless a President has been so obviously railroaded that the electorate sympathizes, the idea of him pardoning himself is so politically explosive that he essentially can’t do it, whether or not the Constitution technically allows him to. That’s because the Constitution also includes a little provision called “impeachment” to keep a President from flouting the law.
To my mind, this was all an exercise in distraction from the growing pile of evidence suggestive of politically-motivated misconduct on the part of the DOJ and FBI. I wanted to make sure I was on the right track about this, so I looked to see if go-to legal mind Andrew C. McCarthy had written a column about it yet, and sure enough, he had.
McCarthy does say that, yes, the President can pardon himself, but that if Congress believes he has abused the pardon in doing so, they can impeach him, and the President does not have the authority to block his own impeachment. But even if the Senate convicts him and removes him from office, the ex-President cannot be prosecuted for whatever he pardoned himself for. Got that?
He also points out that a pardon can be granted before there is any criminal charge, as when President Ford pardoned Nixon. President Carter issued a mass pardon of draft evaders, though they hadn’t yet been charged, and Lincoln similarly pardoned Confederate soldiers and sympathizers. So, technically, Trump could go ahead and issue pardons to anyone Mueller is looking at, including himself. It doesn’t apply to future actions, of course, just to those that have already happened or have been alleged.
McCarthy guesses that Trump’s side is talking about this to show how cooperative he’s being with the investigation, the implication being, “No, I’m not going to sit down for a wide-ranging interview, but, look, I deserve some credit for the support I’ve given to this. I can’t be indicted, I have the power to fire Mueller or anybody else I want, and I could pardon anyone I want –- even myself –- but see how I’m refraining from using my sweeping power?”
But this approach is not one McCarthy would take. There is still no obstruction case against the President, he says, so why get into this? As for whether or not Mueller could compel Trump to testify, he says that as long as Trump has not been implicated in a crime (and it appears he hasn’t) and doesn’t possess evidence that he alone can provide to prove the prosecutor’s case, then there’s no reason for him to testify and it’s just a hypothetical.
Hypothetical or not, the anti-Trump media types have been foaming at the mouth just thinking about this stuff. By the way, did you know that when Hillary was the presumed winner back in 2016, a few were speculating that she might pardon herself once in office and wipe the slate clean of her many transgressions? I don’t remember the media going apoplectic at the prospect of that.