President Trump is up this morning with the audacious claim that he has an absolute power to pardon himself and that all legal scholars agree this is so. Needless to say there’s zero consensus on this point. It’s more of a conceptual black box. It’s not immediately clear what specific constitutional or historical fact would preclude a self-pardon. But I think I’m on safe ground asserting that most legal scholars would agree that this is clearly not the intended use of the power. Indeed, it puts the entire constitutional framework on its head. Below I note a column by Douglas Kmiec in which he notes that the same DOJ opinion which says a sitting President shouldn’t be indicted notes that a self-pardon is similarly a contradiction in terms.) But set that aside, because it’s preposterous that such a thing would even be considered. More salient is the question of whether a sitting President can even be indicted – which precedes the question of a pardon.
It’s been treated as a given that Bob Mueller won’t indict the President. That’s a good assumption because there is a longstanding Justice Department opinion that a sitting President should not be indicted. Bob Mueller works for the DOJ and is in fact a creature of the Department. He will almost certainly follow this guidance.
Beyond the existence of this opinion and departmental guideline there are good reasons not to indict a sitting President. But they are really prudential reasons rather than constitutional ones. The liberty of a President is an inherently political matter. Whether the President, elected by the people, is compelled to leave office isn’t something that should be left to the vagaries of the decision-making of a single prosecutor and twelve jurors. As an individual, that’s the law that everyone has to contend with. But the President isn’t just an individual. We as a people have invested this person with a bundle of responsibilities and powers. That shouldn’t be easily overturned.
So what’s the answer? Is the President above the law? No. We have impeachment, an inherently political process (in the good sense of the word). The President should be removed from office by Congress and then face criminal charges.
But these are prudential considerations, not constitutional ones. Whether a sitting President can be indicted is actually an open question as a constitutional matter. And here is where this all becomes more than a matter of hypotheticals. If you’ve watched the arguments the President’s lawyers have been making, they have used the inability to indict the President (questionable) as a predicate that makes it unconstitutional to even investigate the President.
What do I mean by this?
The President’s lawyers have argued that since the President cannot be indicted he can also not be subpoenaed or brought before a grand jury. Simple argument: If he can’t be indicted, there’s no basis to subpoena him. This is wrong both as common sense and law. Douglas Kmiec, a Reagan administration appointee, provides an overview of the relevant constitutional law in this column in today’s Times. The Courts have shown they are highly solicitous of a President’s need to be un-distracted in his or her presidential duties and maintain secrecy that is reasonably tied to the execution of the office. But the courts have been equally clear that the President has no blanket immunity from the actions of a lawful criminal investigation. All these arguments are simply the predictable arguments of a President who claims to be above the law.