Would Trump self-par­don end Rus­sia probes?

Kuwait Times - - ANALYSIS - By Ali­son Frankel

The Wash­ing­ton Post re­ported Thurs­day that Pres­i­dent Don­ald Trump is talk­ing to ad­vis­ers about is­su­ing par­dons to aides, fam­ily mem­bers and even him­self in order to un­der­mine Spe­cial Coun­sel Robert Mueller’s widen­ing Rus­sia in­ves­ti­ga­tion. Trump out­side coun­sel John Dowd told my Reuters col­league Karen Freifeld that the Post’s “stuff on par­dons is non­sense,” Dowd said. “It’s just a smear job on the pres­i­dent. It’s not true.”

That said, the Post story raises a cou­ple of in­ter­est­ing ques­tions. Can a US pres­i­dent par­don him­self prospec­tively? And if con­sti­tu­tional law al­lows a prospec­tive self-par­don, what are the im­pli­ca­tions for on­go­ing in­ves­ti­ga­tions of the pres­i­dent’s con­duct? Mueller is in­ves­ti­gat­ing pos­si­ble col­lu­sion be­tween the Trump cam­paign and Rus­sia dur­ing the 2016 pres­i­den­tial elec­tion. Moscow has de­nied in­ter­fer­ence in the US elec­tion, and Pres­i­dent Trump has said his cam­paign did not col­lude.

The US Con­sti­tu­tion does not specif­i­cally pro­hibit pres­i­dents from par­don­ing them­selves be­fore they’re for­mally ac­cused of wrong­do­ing (a per­son need not be charged to be par­doned). So if Pres­i­dent Trump, who has not been im­pli­cated in wrong­do­ing, were to de­cide to grant him­self a pass from any prospec­tive pros­e­cu­tion, he would not be vi­o­lat­ing the let­ter of the Con­sti­tu­tion. But he would be stretch­ing the bounds of pres­i­den­tial power as they’ve never been tested be­fore - and, more im­por­tantly, le­gal ex­perts told me, Trump prob­a­bly would not be able to halt Jus­tice Depart­ment and con­gres­sional in­ves­ti­ga­tions sim­ply by par­don­ing him­self and any al­lies known to be un­der scru­tiny.

In fact, at­tempt­ing to use par­dons to ob­vi­ate the spe­cial coun­sel in­ves­ti­ga­tion could back­fire, said Wal­ter Dellinger, who wrote about prospec­tive pres­i­den­tial par­dons as a top of­fi­cial in the Clin­ton Jus­tice Depart­ment in 1995. Par­dons them­selves might raise ques­tions about ob­struct­ing jus­tice, Dellinger said. Prospec­tive par­dons would also re­move Fifth Amend­ment ob­sta­cles to con­gres­sional tes­ti­mony from those who re­ceived them, since you can’t as­sert a right against self-in­crim­i­na­tion if you aren’t fac­ing crim­i­nal con­se­quences. No court in the US has ever had to de­cide whether a pres­i­dent has the au­thor­ity to par­don him­self be­cause no pres­i­dent has ever done so.

The Nixon Memo

Be­fore Trump, the only pre­vi­ous pres­i­dent known to have con­tem­plated a par­don for him­self was Richard Nixon as he faced pos­si­ble ob­struc­tion of jus­tice charges from the Water­gate spe­cial pros­e­cu­tor. Nixon asked his Jus­tice Depart­ment whether a self-par­don was le­gal. Jus­tice lawyers is­sued a memo opin­ion in 1974 ad­vis­ing that it was not. The DOJ memo said that un­der the age-old le­gal maxim that no one can be the judge of his own case, even the pres­i­dent of the United States can­not par­don him­self.

The 1974 Jus­tice Depart­ment memo is the first, last and only of­fi­cial word on a US pres­i­dent’s power to par­don him­self, ac­cord­ing to Michi­gan State law pro­fes­sor Brian Kalt, who has been think­ing and writ­ing about pres­i­den­tial self-par­dons since he was a Yale Law stu­dent in the 1990s. The is­sue has sim­ply never come be­fore a US court, even tan­gen­tially.

In fact, the mere dis­cus­sion of the le­gal­ity of pres­i­den­tial self-par­dons leads to a rab­bit­hole of unan­swered hy­po­thet­i­cals, such as whether a sit­ting pres­i­dent can be in­dicted or pros­e­cuted, said law pro­fes­sor San­ford Levin­son of the Univer­sity of Texas. It’s not clear, Levin­son said, whether a spe­cial coun­sel could go to court to chal­lenge a pres­i­den­tial self-par­don if the spe­cial coun­sel can’t pros­e­cute the pres­i­dent while he’s in of­fice. “It’s just a co­nun­drum,” Levin­son said. Kalt, who has be­come a mini-celebrity since the Trump self-par­don news broke, told me that in the vac­uum of prece­dent, both pro­po­nents and op­po­nents of self-par­dons have le­git­i­mate ar­gu­ments. He said he be­lieves the stronger ar­gu­ment is against the le­gal­ity of pres­i­dents par­don­ing them­selves. Ac­cord­ing to Kalt, the pri­mary ar­gu­ment that pres­i­dents can par­don them­selves is that the Con­sti­tu­tion doesn’t say they can’t.

But three fac­tors, he said, weigh against le­gal­ity: The tra­di­tional mean­ing of the word par­don, which im­plies one per­son giv­ing and an­other re­ceiv­ing; the le­gal prin­ci­ple against serv­ing as one’s own judge, as cited in the Nixon memo; and the text of the US Con­sti­tu­tion. Here’s why. Ar­ti­cle II of the Con­sti­tu­tion au­tho­rizes the pres­i­dent to “grant re­prieves and par­dons for of­fences against the United States, ex­cept in cases of im­peach­ment”.

That lan­guage, Kalt said, gives pres­i­dents im­mense power. We’ve seen pres­i­dents, for in­stance, is­sue par­dons to peo­ple who haven’t been charged with any crime, most fa­mously when Pres­i­dent Ger­ald Ford par­doned Richard Nixon be­fore Nixon was charged with ob­struct­ing jus­tice. Pres­i­dents can also par­don peo­ple whose iden­ti­ties are un­known, as when Pres­i­dent Jimmy Carter granted amnesty to all Viet­nam draft evaders.

But the words of the Con­sti­tu­tion do not give the pres­i­dent un­lim­ited par­don pow­ers. Kalt looked back to James Madi­son’s notes from the 1787 Con­sti­tu­tional Con­ven­tion and found that the framers dis­cussed whether trea­son ought to be ex­cluded from the pres­i­dent’s par­don pow­ers in case the pres­i­dent were a traitor. The drafters, ac­cord­ing to Kalt, con­cluded that if the pres­i­dent were a traitor, “he can be im­peached and pros­e­cuted” un­der the lan­guage they adopted. Out­side of that con­text, Kalt said in a May 2017 For­eign Pol­icy anal­y­sis, self-par­dons “never came up, which is a very telling omis­sion in a dis­cus­sion about crim­i­nal pres­i­dents abus­ing the par­don power,” he wrote. “It ap­par­ently went with­out say­ing - lit­er­ally - that self-par­dons are not pos­si­ble.”

‘Un­bear­able’ Pres­sure

Con­sti­tu­tional lan­guage brings me to my sec­ond point. The par­dons clause, as you prob­a­bly no­ticed, ex­plic­itly says that pres­i­dents can­not grant par­dons from “cases of im­peach­ment”. That clause, said for­mer Clin­ton Jus­tice of­fi­cial Dellinger, could give spe­cial coun­sel Mueller a man­date to con­tinue in­ves­ti­gat­ing the Trump cam­paign even if the pres­i­dent were legally en­ti­tled prospec­tively to par­don him­self and ev­ery­one else un­der Mueller’s scru­tiny for pos­si­ble vi­o­la­tions of fed­eral crim­i­nal laws.

Dellinger drew an anal­ogy to White­wa­ter in­de­pen­dent coun­sel Ken­neth Starr, who did not charge Pres­i­dent Bill Clin­ton with crimes but pre­pared a re­port that served as the ba­sis for ar­ti­cles of im­peach­ment against the pres­i­dent. “The par­don clause ex­pressly does not ap­ply to im­peach­ment,” Dellinger said. “That’s the same rea­son Starr kept go­ing.” (I can imag­ine the Trump team coun­ter­ing Dellinger’s point with the ar­gu­ment that grand ju­ries are con­vened to in­ves­ti­gate crimes, not pol­i­tics, and if the pres­i­dent has prospec­tively par­doned ev­ery po­ten­tial tar­get, the grand jury must be dis­missed.) — Reuters

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