Trump’s legal team filed a claim to stop a Manhattan D.A.’s subpoena of his tax returns that said the President cannot be prosecuted or investigated while in office. Harvard law professor Laurence Tribe tells Lawrence why Trump’s lawyers are wrong- and why the tax return subpoena cannot be stopped. Aired on 09/19/19.
The mob-boss presidency
A normal president confronted with a news story suggesting he ordered underlings to illegally transport asylum seekers to so-called sanctuary cities in order to retaliate against political enemies would deny knowledge of such a heinous plot. If need be, he’d make light of it, portray it as if it were idle chatter or a joke. That’s what President Trump’s devoted prevaricators (White Houses staffers) did following The Post account.
Trump, however, is anything but normal. No, he tweeted — of course it was a tweet — that not only was the idea considered but that it is still under consideration. Aides on background hastened to say that nothing was in the works, once more contradicting their boss.
Making matters worse, we learned he allegedly told Customs and Border Protection Commissioner Kevin McAleenan to close the border despite concerns about the legality of doing so. He allegedly told McAleenan, who is now also acting secretary of homeland security, that he — Trump — would pardon him later if need be.
Making matters worse, we learned he allegedly told Customs and Border Protection Commissioner Kevin McAleenan to close the border despite concerns about the legality of doing so. He allegedly told McAleenan, who is now also acting secretary of homeland security, that he — Trump — would pardon him later if need be.
Republicans, as they always do when Trump is shredding democracy, remained silent on Friday. Speaking more generally of Trump’s Twitter habits in an interview, House Speaker Nancy Pelosi (D-Calif.) declared the president to be a “freak.” Actually, if the allegations are true, he’s much worse than that.
Former federal prosecutor Mimi Rocah acknowledged that, if the allegation about a pardon was true and Trump was serious, Trump then “offered a pardon as a bribe to get a public official to commit an unlawful act.” Referring to Attorney General William P. Barr’s exaggerated conception of executive authority, she queried, “Would Barr dare say that’s within his executive power?”
Constitutional scholar Laurence H. Tribe tells me, “If carried out, this offer to pardon high immigration officials if they will break the law on his behalf is the most obviously impeachable action President Trump has taken to date: It would mean this president has seized the power to put not just himself but all who do his bidding beyond the reach of law.” He continues, “That doing so is a high crime and misdemeanor is beyond dispute. Any president guilty of such conduct cannot be permitted to remain in office.”
Now, even if the offer of a pardon were not technically a bribe, “this is still an extraordinary and disturbing abuse of presidential power,” says Joshua Matz, co-author with Tribe of “To End A Presidency: The Power of Impeachment.” “Especially if it were repeated in other contexts, such illegality-inducing conduct may well rise to the level of an impeachable offense, though in my view we don’t yet know nearly enough about what happened here to reach firm conclusions.”
In this, as in other instances, subordinates’ refusal to carry out orders (as former White House counsel Donald McGahn did in refusing to fire special counsel Robert S. Mueller III) provides some protection to Trump from the consequences of his own actions.
However, neither Trump nor the country can count on employees’ continued insubordination, especially in light of Trump’s preference for installing “acting” officials, who remain under his thumb. Swift and forceful action to halt his reckless disregard of the law is required.
Tribe argues, “Without doubt, therefore, the House Judiciary Committee needs to include this matter within its investigatory ambit, subpoenaing all those who may have relevant knowledge unless they appear voluntarily.” Normally, if there is a credible allegation of wrongdoing by the president, the attorney general would appoint a special counsel. Don’t hold your breath. Tribe observes, “it seems unrealistic to expect the blatantly compromised Attorney General William Barr to appoint a special counsel to pursue the issue even if, as appears to be the case, the president has credibly been charged with promising a pardon as a bribe for illegal conduct.”
We’ve now come to the point where Trump is bragging about a plot to abuse power, using federal resources to enact political revenge. We have reason to believe he tried to induce wrongdoing with a pardon offer. “One thing everyone who knows the relevant law has agreed about the otherwise sweeping pardon power is that it cannot be used in advance, to license crimes before they have been committed,” Tribe says.
We’ve now come to the point where Trump is bragging about a plot to abuse power, using federal resources to enact political revenge. We have reason to believe he tried to induce wrongdoing with a pardon offer. “One thing everyone who knows the relevant law has agreed about the otherwise sweeping pardon power is that it cannot be used in advance, to license crimes before they have been committed,” Tribe says.
No, Trump can’t pardon himself. The Constitution tells us so.
Can a president pardon himself? Four days before Richard Nixon resigned, his own Justice Department’s Office of Legal Counsel opined no, citing “the fundamental rule that no one may be a judge in his own case.” We agree.
The Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law.
The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.
.. a president may conclude that even if a person may have committed a crime, he was acting in good faith to protect the national interest; President George H.W. Bush pardoned former defense secretary Casper Weinberger in the Iran-contra affair in part for this reason.
.. President Trump thinks he can do a lot of things just because he is president. He says that the president can act as if he has no conflicts of interest. He says that he can fire the FBI director for any reason he wants.
.. In one sense, Trump is right — he can do all of these things, although there will be legal repercussions if he does. Using official powers for corrupt purposes — such as impeding or obstructing an investigation — can constitute a crime.