a memo that his lawyers had prepared last year, for the special counsel, published by the Times over the weekend, which says that, because the President can legitimately stop investigations—by methods including his pardon power or by the firing or hiring of certain law-enforcement officials, which can be part of the President’s job—his actions “could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself.” As the President’s lawyers see it, Trump, in effect, is justice.
.. what the President and his lawyers seem to be saying is that there will, or can, be no “high crimes or misdemeanors”—the standard for impeachment—for Mueller to report to Congress, because Trump can make them vanish.
.. What is especially jarring about this argument is that it posits that the President does not have to pardon himself for any potential crime to disappear; the idea that he could, maybe, someday pardon himself makes a crime un-criminal. The concept is meta-Machiavellian: it is not just that a theoretical end—a Presidential pardon or a firing of the special counsel—justifies the means; it erases the means. That which may never happen (a pardon) is treated as something that already has.
.. the part about pardons in the Constitution reads like this: the President “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” (Emphasis added.)
The President may not be willing to read the parts of sentences that he doesn’t like, but one wishes that his lawyers would. The pardon power is not absolute
.. Whether a President can pardon himself or herself for anythingis not clear, in part because no President has ever tried
.. And should an investigator just assume that anything that harms the President won’t be prosecuted, and thus needn’t be investigated?
.. Does once having been Trump’s campaign chairman mean, for example, that Paul Manafort can, as Mueller’s team alleged on Monday, engage in witness tampering?
.. That is the logic of societies that have given up on the rule of law—leaving investigators and judges and juries always guessing about whether they are obliged to ignore plain facts in order to maintain the illusion of Presidential innocence.
.. there is no question that a President can, in the course of doing things that he is allowed to do—such as hiring and firing people—commit crimes, for example by taking bribes.
.. In Trump’s view, in other words, Sessions’s very conflict—his involvement in the campaign, which is presumably what Trump was referring to when he said that he “knew better than most”—was a reason for him to stay involved.
.. The reason that there is a Russia investigation, in other words, is a failure of the President’s subordinates to use the power that his office gave them. This, for Trump, seems to be the definition of a “hoax”: people pretending that Trump is not as powerful as Trump is.
.. When NBC’s Craig Melvin asked President Bill Clinton, this week for the “Today” show, whether it would have been better for him to resign, rather than fight it out, when he was impeached on charges that he had perjured himself and obstructed justice in relation to the Monica Lewinsky and Paula Jones cases, in 1998, Clinton said no and argued, “I defended the Constitution!”
.. He referred vaguely to “imagined facts” and to unspecified real ones that had been “conveniently omitted.”
.. It might seem surprising that Clinton was not better prepared for such questions ahead of his book tour. But then his wife’s Presidential campaign did not seem well prepared for such questions, either
.. “The American people, two-thirds of them, stayed with me,” he said—as if polls provided the ultimate pardon.
Trump Can’t Be Indicted. Can He Be Subpoenaed?
Its claims that the president can “order the termination of an investigation by the Justice Department or F.B.I. at any time and for any reason” is unprecedented and far exceeds even Harry Truman’s brazen and rejected attempt to take over the steel mills to blunt labor unrest in the 1950s.
.. We also responded in the negative — but it was not a simple, categorical no. The presidential subpoena is a valid legal tool, as Chief Justice Warren Burger made clear in United States v. Nixon, but a president may find case-specific reasons to resist it.
.. The authors of the letter think the question is answered by a lower-court ruling, United States vs. Espy, decided in 1997 during the presidency of Bill Clinton. The letter claims that to overcome a privilege claim, special counsel must show that evidence is obtainable from no other source than the president.
.. The letter’s position also draws anachronistically upon an early theory of Thomas Jefferson — that each branch determines its own constitutional meaning. In United States v. Burr (1807), Thomas Jefferson argued that while a court can issue a subpoena to the president, it is the president who decides how it is enforced.
To drive home his point, Jefferson submitted the subpoenaed material with portions blotted out. Somewhat surprisingly, the presiding judge, Chief Justice John Marshall, did not object.
.. John Marshall’s non-objection was anomalous; he is revered for the proposition that ultimately it is the Supreme Court that says “what the law is.”
.. Laurence Tribe, a law professor at Harvard, has written, “even if courts lack power to enforce a subpoena against a president, presidential defiance of a lawful court order might, in sufficiently serious circumstances, constitute an impeachable offense.”
.. About the only thing one can say for sure about the enforceability of a presidential subpoena is that, should the Trump and Mueller sides fail to agree on a setting for presidential interview, both sides have a basis to litigate the matter tenaciously.
Trump: I have the right to pardon myself
President Trump on Monday asserted his right to provide himself with a pardon, but insisted he won’t need to do so because he has not done anything that would warrant one.
“As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” the president wrote on Twitter.
.. Trump attorney Rudy Giuliani said that while the president “probably” does have the power to issue himself a pardon, doing so would be politically challenging.
“I think the political ramifications of that would be tough. Pardoning other people is one thing. Pardoning yourself is another,” Giuliani said on ABC’s “This Week.”