Trump pardoning himself would create a constitutional crisis that makes Watergate look minor, says historian

A law professor has also said that a self-pardon would be unconstitutional

Clark Mindock
New York
Friday 21 July 2017 10:51 EDT
Beschloss: 'If Donald Trump thinks he can pardon himself we are on our way to constitutional crisis'

News that Donald Trump and his lawyers are musing about the possibility of the President pardoning his family — or even himself — to insulate them from any potential charges of wrongdoing related to the 2016 election has worked the internet and commentators into a frothy fury.

The fallout of the latest bit of seemingly damaging news about the Trump administration has led some to question whether it signals that the United States is headed toward a constitutional crisis. Some say this type of thinking within the administration makes the Watergate scandal that saw the resignation of Richard Nixon look like child’s play.

“If Donald Trump thinks that he can easily pardon himself and pardon his aides, pardon his children and limit the [Robert] Mueller investigation, perhaps fire Mueller and or [Attorney General] Jeff Sessions and [Deputy Attorney General Rod] Rosenstein,” Michael Beschloss, an American historian who specialises in the presidency, said in an appearance on MSNBC, “we are on our way if that happens to see a constitutional crisis that would make Watergate look like a minor event in comparison.”

Mr Beschloss said that, if Mr Trump is truly considering pardoning himself, his family, and his administration officials, then it illustrates a big difference between him and Nixon. The former president, at the height of the Watergate scandal, refused to consider similar pardons, he said, and said at the time that those actions would be “dishonourable”.

It isn’t clear if the President has the ability to pardon himself, and leading constitutional scholars have argued that he definitely doesn’t have that particular power. The constitution gives the President sole power to grant pardons and commutations against federal crimes

“My view: a president’s self-pardon would be unconstitutional,” Laurence Tribe, a professor of constitutional law at Harvard University, tweeted.

Michael Dorf, a constitutional law professor at Cornell University and coauthor of a book on the Constitution with Mr Tribe, told The Independent that he doesn't think that the President pardoning his family and himself would actually create a constitutional crisis. That's because federal norms already keep prosecutors from attempting to prosecute a sitting president. If Mr Trump pardons himself, and Mr Mueller decided after he left office to try and take him to task, the courts would determine then whether Mr Trump had the power to pardon himself in the first place. In other words, the checks and balances laid out in the Constitution would be working.

A constitutional crisis, in Mr Dorf's view, would only occur should the nation not be ruled by the Constitution. One example of that would be if a President refuses to leave office, at which point loyalties to him would be the determining factor in the governance of the United States instead of the principles of the founding documents.

The news that Mr Trump’s team may be considering a self-pardon — or are, at the very least, curious about the concept — come as the President has escalated his brawl with the Justice Department. The President said in a recent New York Times interview in the Oval Office that he wouldn’t have hired Mr Sessions to run the department had he known that he would recuse himself from the Russia probe, prompting many to note that in ordinary times the attorney general would resign following those statements.

Of course, Mr Trump could fire Mr Sessions and demand that Mr Rosenstein fire Mr Mueller — which Mr Rosenstein has said he wouldn’t do without a good reason. That, however, would only add to concerns that the President is attempting to obstruct justice in the investigation into Russia’s meddling in the 2016 presidential election and whether his campaign participated in that effort in any way. Mr Trump has already been dogged by similar claims after he fired former FBI Director James Comey, and cited the Russia investigation explicitly as a reason for doing so.

Some have noted that the idea to push for Mr Mueller’s firing would be a ridiculous move.

You’re “gonna beat the obstruction of justice rap you created by firing someone, by firing the guy investigating the obstruction,” Twitter user Dave Itzkoff, implicitly questioning the logic behind essentially repeating the same action that got Mr Trump in potential hot water to take the heat away.

The President’s team has also been reportedly considering a different tact to fight back against the threat of the Russia investigation: Compiling their own dossier on conflicts of interest within Mr Mueller’s investigation. But there, again, legal scholars say that it could be a dangerous move to do so.

“Be VERY careful Mr. Pres., “investigating the investigators” can be obstruction,” Norm Eisen, an attorney who previously served as the White House ethics czar for the Obama administration, tweeted.

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