Screen grab from Drudge, linking to "President Trump 'probably does' have the power to pardon himself: Giuliani." Hmm. Drudge dropped the "probably" hedging. And Giuliani didn't decide to drop a bombshell, he was on TV and put in a position of having to answer a question:
When [George] Stephanopoulos asked if the president has the power to pardon himself, Giuliani said he "probably does."So there's really no shock at all. Giuliani breezed past the legal question without seriously answering it and use the opportunity to talk about the political forces that constrain the use of the power the President "probably" has.
"He has no intention of pardoning himself," said Giuliani, a former New York City mayor who is Trump's lead attorney in negotiating an end to Mueller's ongoing investigation. But it is a "really interesting constitutional argument: 'Can the president pardon himself?'"
Giuliani added, "I think the political ramifications of that would be tough. Pardoning other people is one thing. Pardoning yourself is another. Other presidents have pardoned people in circumstances like this, both in their administration and sometimes the next president even of a different party will come along and pardon."
I think that's quite appropriate. The President is focused on his political fate, not what might happen in a criminal case in court, and as long as he's still in office as possessed of the power to pardon, the use of the presumed power to pardon himself would undermine his political position. Better to leave his fate in a possible criminal prosecution for later and to trust that the next President will — like Ford for Nixon — save him from the ignominy of a criminally prosecuted former President. The new President won't want that riveting the country's attention, tearing us apart.
By the way, this question whether the President can pardon himself was big during the Bill Clinton administration. I remember it well because I used it for a Constitutional Law I exam, and I remember a colleague of mine scoffing at the question (without knowing I thought it was good enough for an exam). She just thought it was ridiculous because it wasn't going to happen. You can talk about the President pardoning himself, but it isn't going to happen. The political realities preclude that scenario.
You might be wondering what's the answer to the exam and assuming I have if not a firm answer at least a preferred answer. I really didn't care which way the answers went. I wanted a demonstration of understanding and skill in applying methodologies of interpretation. It would be wise to begin with the text of the particular clause — "The President... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment" — and wise not to end there.
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44 comments:
There's going to be some heads exploding ...
Wait- what was it he did again?
Pardon comes from donare, to give as a gift.
Re: Answering the exam
Of course, counseling your client is just as important, if not more so, than knowing what the law is -- especially since legal outcomes are entirely out of your hands regardless of what the law is.
As a legal, constitutional matter, a president in his capacity as president has plenary power of pardon, including pardoning himself in his personal capacity against criminal proceedings. As a political matter -- and impeachment is a matter between the political branches -- depending on the allegations, and depending on the make-up of Congress, pardoning oneself is likely to open oneself up to impeachment proceedings.
So who is the gift from. I'd assume the people, with the President in charge of charity.
That would normally be corruption then, if he gives it to himself.
Unless there's a good reason.
What would he pardon himself FOR?
What crime is he alleged to have committed?
John Henry
Legal minds may wish to notice instead that a pardon has a cash value, and reason from there.
It would be like taking the white house silverware and china when you leave office.
There is no evidence that Donald Trump committed any crime.
We might as well be talking about a pardon for Barrack Obama.
The problem with answering the exam question is that invariably people are going to read "the president" to mean Trump, rather than give an objective answer.
If you're going to do it, probably around Thanksgiving would be the best time.
"The new President won't want that riveting the country's attention, tearing us apart."
Why would it tear the nation apart to prosecute a former President for criminal conduct? It might actually be salutary, to show that even a President must answer to the law, and may not violate the law with impunity.
ISTM talking about this so much is just a way to convince people Trump is guilty of something.
"It would be like taking the white house silverware and china when you leave office."
That caused an old Nixon quote (my favorite Nixon quote) to spring to mind: "We can do that, but it would be wrong."
How about when the Clinton people, exciting, took the "w"s from the computer keyboards?
I found it interesting that the anti voice I have repeatedly seen most over the last 24 hours is that of the odious Preet Bahara, who was working for Comey in the Bush(43) DoJ, when Comey tried to take it over, at the incapacitation of the AG, was Loretta Lynch's picked successor as SDNY USA when she stepped to AG, got Dnesh D'Sousa sent to prison for making an anti-Obama film, using creative prosecution tactics to double the charges, actually expected to keep his job as SDNY AG with Trump, was the only Obama USA to refuse to tender his resignation to Trump, and had to be fired. Which is why "odious" is appropriate. I should add, that when all the facts are finally out, I fully expect to see his name somewhere in the credits for bit parts. No doubt the fact that he and his buddy Comey were both fired by Trump is helping drive his animus here and his interest in attacking their tormentor, President Trump.
Robert Cook,
Great, now tell us what the crime you imagine is.
"Hell.. myself?"
"It ain't no mystery, if its politics or history
The thing you gotta know is,
Everything is showbiz!"
"Why would it tear the nation apart to prosecute a former President for criminal conduct? It might actually be salutary, to show that even a President must answer to the law, and may not violate the law with impunity."
There has, of course, not been any criminal behavior on the part of President Trump that anyone, including Mueller and his army of hand picked partisan inquisitors have seen. This is part of Mueller trying to get Trump to sit down in an environment that Mueller controls, so that he can manufacture process crimes against Trump, such as lying to federal investigators. The personal pardon idea is part of the Trump defense team's pushback against Mueller's overreaching, led by one of Preet Bahara's predecessors as SDNY USA, Rudi Guliani. The Mueller investigation has effectively nothing for their year long investigation, costing American taxpayers millions, and trying to trip up Trump is their Hail Mary.
Trump just tweeted that he has the absolute right to pardon himself.
Media will go crazy all week. That’s why he did it. Genius.
PURPLE ELEPHANTS.
Trump has commanded the press not to think about them.
Speaking of Trump troubles, the driving intellectual force behind prosecution and Impeachment has suddenly realized it’s a political loser and is desperately trying to reverse course. Slate’s Dahlia Lithwick interviews Laurence Tribe: Why It’d Be a Bad Idea for Democrats to Impeach Trump if They Win the House.
"We can do that, but it would be wrong."
A cousin of "And it has the added value of being true."
When will the media figure out that Trump does this stuff to make their heads explode?
And to make them look silly to normal people.
Robert Cook said...
"The new President won't want that riveting the country's attention, tearing us apart."
Why would it tear the nation apart to prosecute a former President for criminal conduct? It might actually be salutary, to show that even a President must answer to the law, and may not violate the law with impunity.
Great, let's start with Bill and Hillary.
1. Does the President have the authority to pardon people?
- Of course, see Article II of Constitution, Section 2.
2. Are there any limitations on the types of crimes for which a President may issue a pardon?
- Yes, a plain reading suggests only Federal crimes, not state crimes such as jaywalking. This suggests that the President could not pardon, say, Charlie Manson for his state murder convictions.
3. Are there any limitations on the types of people for which a President may issue a pardon?
--No. See, Ford, Gerald (President) pardoning Nixon; see Bush, George HW (president) pardoning Sec Def Caspar Weinberger.
4. Are there any valid analogies?
- Yes. A Governor can appoint himself to a vacated Senate seat.
"Two famous examples: After the death of South Carolina Sen. Olin Johnston (D) in 1965, Donald Russell (D) resigned as governor and was appointed to the Senate by his successor, Lt. Gov. Robert McNair. Voters immediately dumped now-Sen. Russell in the 1966 primary. In Minnesota, after Sen. Walter Mondale (D) ascended to the vice presidency, Wendell Anderson (D) resigned as governor and had his successor, Lt. Gov. Rudy Perpich, appoint him to the Senate. Anderson got knocked off in the '78 elections."
But, in both cases, the Governor resigned, and was appointed by his Lt Governor. Obviously, once a President resigns, he no longer has pardon power. He might have to hope & pray that VP Mike Pence pardons him.
So, the more precise question is whether a President can pardon himself and stay in office. Probably, Yes. But then if would be impeached and removed and Mike Pence would be Prez.
The President can't pardon himself, if impeached. But if Mueller thinks he can just impanel a grand jury, rather than bring his charges to the House, then the President could pardon himself. Or fire Mueller, who ultimately works for him.
But long before that happens, we will have to determine if Mueller can subpoena the President. I think he can, but I'm not sure how it can be enforced while Trump is President.
So, we've blazed right past any crime to impeachment. Now that his inability to pardon himself has been established, we can move on to debate whether or not the prison grave site should be marked or unmarked.
Let's get the show on the road so we can get to this headline:
Pence faces Impeachment if he attempt to pardon Trump.
The self-pardon is just one of the theories being push by Guliani and Trump's other attys here. Mueller and his merry bunch of partisan hacks are being told not to bother trying to force Trump into a perjury trap, because he can just pardon himself. Unless Trump preemptively pardons everyone on his team, including himself probably, the next step is likely going to be for Mueller to go to court to try to force Trump to testify in a venue conducive to catching Trump in a perjury trap. The Trump team apparently offered to fit Mueller into Trump's busy schedule if they could manage it a bit more safely. Many have suggested that Crooked Hillary rules might be acceptable, where Trump's attorneys would get to vet the questions in advance, the interview wouldn't be under oath, etc. This was apparently rejected by Mueller, because apparently, only Dem Presidential candidates get Crooked Hillary rules.
I think that we are in the end game now. Mueller's team created some process crimes, reopened some old investigations, and indicted a bunch of Russians the knew they would never get into court (except one did show up, and called their bluff, demanding their speedy trial). The Mueller investigation is unraveling. It was very likely illegal to start with for several reasons. One is that DAG Rosenstein violated federal law and regs in the Mueller appointment, by failing to specify a crime up front (counterintelligence investigations aren't supposed to get independent prosecutors). Secondly, Mueller's independence is that of a superior officer, who needs to have been nominated by the President, and confirmed by the Senate, as AG Sessions, DAG Rosenstein, and all of the USAs were, instead of the inferior officer that they pretend he was when appointed by Rosenstein. Two or three federal judges are seriously questioning one facet or another of Mueller's operation. It is notable that it has been six months since Gen Flynn plead guilty, and he still hasn't been sentenced, because the prosecutors still have yet to provide the exonerating evidence to him and the court that the judge has demanded (and is required by law). Another judge has demanded to see a complete unredacted authorization by Rosenstein of Mueller's charter. They are dawdling there too. And they are facing dismissal of the Russians under Speedy Trial by a third judge, having failed to explain why they should be exempted from this statutory requirement. Meanwhile the justification for Mueller is looking ever more contrived, by the same group of DoJ conspirators facing jail time through FISAgate/Spygate.
What would he pardon himself FOR?
what did Ford pardon Nixon FOR? Wasn't it a blanket pardon ?
" a full and unconditional pardon for any crimes he might have committed against the United States while president."
If we've ALREADY agreed that
the President can pardon a President
the President can be pardoned for ANY CRIMES HE MIGHT HAVE COMMITTED
Trump IS the President
What's left?
Of course; what's left is the question of whether that is an impeachable offense.
it IS an impeachable offense, if a majority of the house says so
the President WOULD BE GUILTY of that offense, if 2/3s of the senate says so
same as it's always been. same as it's always been
"Robert Cook,
"Great, now tell us what the crime you imagine is."
For which president? You make the mistake of assuming I am talking about Trump, but I am not talking about any particular president, but about the alleged "damage to the country" of prosecuting any former president for crimes.
How about when the Clinton people, exciting, took the "w"s from the computer keyboards?
Even though you saw it with your own eyes on a CBS news report, Snopes will tell you it's false. Because the GAO doesn't have claims for repair or replacement. But, that's because the Bush transition team bought out the stock of a local computer discounter for cash (like $11@)when they found out GSA paid $100 to have it fixed and around that to replace the whole keyboard. Remember this parsing next time you look at Snopes for any determination.
I find that whole thing disgusting.
Media posits something that Trump isn't going to do, and then criticizes him!
And why is Giuliani enabling this? Don't talk about Hypotheticals. I know that's what Lawyers live for, but sheesh.
The legal realities are that a President would rather have a pardon from the next President than a self-pardon, because he knows the Ford-like pardon will be good but the self-pardon may not be. You have to imagine a scenario where a succeeding President wants to prosecute rather than pardon or not prosecute. A self-pardon taunts the next President to prosecute.
the alleged "damage to the country" of prosecuting any former president for crimes...
The very real danger is that it then becomes the norm to prosecute the loser simply because it "can" be done and it helps eliminate opposing voices. Does anyone think an incoming Hillary admin would NOT have taken all the info FBI was manufacturing and used it to put Trump in his place? Down that road lies Banana Republic territory.
The media ARE democrats. Clintonista democrats in forever butthurt revenge mode.
I think that the other part of winding this down, is that Trump, etc, want this over and done with before the election season, which working backwards, gives them maybe 3 months. They don’t want or need the distractions. On the flip side, the Dems don’t want the electorate any more voting based on them impeaching him when they retake the House, if they do. Of course, they probably will, on general principles, but they don’t want the normal part of the electorate thinking that is what they were going to do. So, why keep the investigation going? No doubt, some of Mueller’s team want to keep it going because they are exacting a price. Making Trump hurt a bit. Kinda like the passive aggressive thing that the Dems are doing in the Senate slow walking so many of Trump’s nominees. If they can slow him down, or distract him, regardless of means, and regardless of how they hurt the country, so much the better.
I think that it is Giuliani who is driving this. Most everyone the least bit rational, who has watched this whole thing unfold, knows that the Mueller investigation was a setup from the first. The only real collusion with the Russians was by Crooked Hillary and the Dems, and no one had any interest in rubbing in her loss, despite their collusion. Besides, almost the entire Mueller prosecution team are rabid Dem partisans. Of course, it appears that the setup actually started with the CIA in spring of 2016, about the time that Adm Rogers terminated the ability of Dem operatives to use the NSA FISA 702 databases for opposition research. Getting back to Rudi - he is political, having been NYC mayor and kinda run for higher office. I think Trump’s other attys involved in this are not. They look at this more as a legal matter. Giuliani looks at it more as a political one, which means keeping the midterm elections in mind in whatever they do. And, hence the full court press to force Mueller to wind things up in short order.
Blogger MadisonMan said...”I find that whole thing disgusting.
Media posits something that Trump isn't going to do, and then criticizes him!
And why is Giuliani enabling this? Don't talk about Hypotheticals. I know that's what Lawyers live for, but sheesh.”
The meda’s behavior is disgusting, but that horse left the barn ages ago.
As to Giuliani, I don’t know what he did on other channels, but I watched him on MTP. Todd asked him the question and his reponse was that Trump pardoning himself would be “unthinkable” and that he would be “immediately impeached”. Giuliana has a big mouth, but I think he handled this one fine.
Oh, Robert Cook, you improperly inferred that I meant Trump and tried to use that to avoid the question I actually asked. You, sir, are a goof.
"Pence faces Impeachment if he attempt to pardon Trump."
That is a viable, lawful option! (If the pardon is deemed a "high crime and misdemeanor")
That would make the Speaker of the House the Prez. Depending on the outcome of the midterms, if the Dems win, Pelosi could become Prez!
Yikes.
Pelosi is not going to be President. The Dems are facing this election defending maybe 2/3 of the seats being elected this year. Even if they won every Republican seat up for election this time (and that is almost impossible, given that many of those Rep seats are dark, dark red, some with Trump majorities > 20%)., they would probably not have quite enough votes to remove after impeachment, which would require some Republican votes. There is absolutely no way that the Dems could get enough Reps in the Senate to remove both Trump and Pence, at least until a Republican is seated as Pence's VP. Of course, the Republicans are far, far more likely to pick up seats in the Senate, than lose them, given that the Dems are dyou fending 8-10 seats that Trump won in 2016, some by double digits.
I heard it was you
Talkin' 'bout a world
Where all is free
It just couldn't be
And only a fool would say that
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