Late last week, the New York Times published a previously confidential ten page memo created by President Trump’s lawyers to outline what they saw as the limits of his executive power. And if you were to take their word for it, these boundaries are pretty lax.
They argued that the President his immune from criminal prosecution while in office, thus making it impossible for anything he does to be technically illegal. President Trump double-downed on the memo’s spirit on Twitter by asserting that the President has the authority to issue himself an executive pardon.
They’re all pretty bold statements, but the million-dollar question is whether or not they’re true.
The first assertion, the idea that the President is immune from criminal prosecution while in office, isn’t new. In fact, that’s been the opinion of the Justice Department since the 1970’s. The individual occupying the Presidency has to first be evicted from office before they can stand criminal trial. Granted, it’s never actually been tested— but there’s good reason to think that Mueller will stand by the precedent.
The other two assumptions, that it isn’t illegal when the President does it and that he could pardon himself, aren’t new either. They were also last seriously considered in the 1970’s when they were asserted by the Nixon Administration. But although things didn’t end well for President Nixon, they ended in a way that didn’t satisfactorily resolve the questions.
Despite the certainty espoused by many pundits, we actually don’t know if President Trump could pardon himself should criminal charges be recommended. Some experts avers that he could, others say otherwise. The inconclusiveness doesn’t reflect a lack of knowledge on their point but the murkiness that comes from treading in uncharted constitutional waters.
But one thing that is generally agreed-upon is that, provided he has the authority, pardoning himself does not liberate the President from the threat of impeachment. The courts have previously ruled that impeachment is not so much a legal issue as it is a political one. The requisite “high crimes and misdemeanors” are not actual legal definitions so much as they are place-holders for things that Congress deems worthy of giving a president the boot. They could impeach him for how he eats pizza if they chose to. Although they obviously wouldn’t (no matter how much of a travesty it is), the fact that they can impeach him for something that isn’t specifically a crime obviates the issue as to whether or not the President (as in the person holding the office) is capable of committing one. It may not be exactly as the founders intended, but it provides congress another form of authority over potential presidential oversteps.
That is, of course, if they choose to act on it. But that’s a whole other can of worms.
For those interested, I actually made a 6 minute video on this topic on the Professor Politics YouTube page. There’s a fair amount of overlap between this post and the video, but it’s distinct enough that I think you might enjoy it.