President Trump claimed Monday that he has the “absolute right” to pardon himself, but that goes against a still-active 1974 Justice Department memo that cites a “fundamental rule that no one may be a judge in his own case,” and thus means “the president cannot pardon himself.”
That memo was written by then-Acting Assistant Attorney General for the Office of Legal Counsel Mary C. Lawton. A Justice Department official told the Washington Examiner on Monday that there are “no other published opinions [from the department] on this topic,” which means it’s still the prevailing view at the department.
It’s also of other legal experts who wrote in a 2017 op-ed about the memo.
“We agree,” Laurence Tribe, a Harvard Law professor; Richard Painter, chief White House ethics lawyer for President George W. Bush; and Norm Eisen, chief White House ethics lawyer for President Barack Obama, wrote about the OLC memo last year. “He cannot pardon himself.”
However, the OLC memo has never been tested in court, and the U.S. Constitution and court precedent adds cloudiness to the issue. For example, Article II of the Constitution says the president “shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” which seems to say the president cannot use the pardon power to prevent his own impeachment.
But in 1866, the Supreme Court ruled the power is unlimited, at least by legislation.
“It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. This power of the president is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be affected by any legislative restrictions,” the ruling said.
The Supreme Court agreed in a 1974 decision that the president’s pardon power “flows from the Constitution alone, not any legislative enactments,” and “cannot be modified, abridged, or diminished by the Congress.”
A decision by Trump to pardon himself would only happen if he were convicted of something first, something that remains theoretical at this point. But the political ramifications of Trump pardoning himself would be too big to ignore, both allies and critics have said.
“I think [if] the president decided he was going to pardon himself, I think that’s almost self-executing impeachment,” former U.S. Attorney Preet Bharara said Sunday. “Whether or not there is a minor legal argument that some law professor somewhere in a legal journal can make that the president can pardon, that’s not what the framers could have intended. That’s not what the American people, I think, would be able to stand for.”
Former New Jersey Gov. Chris Christie also said Sunday that it would become a “political problem” if Trump tried to pardon himself and that “he’ll get impeached.”
“If I were president of the United States and I had a lawyer that told me I could pardon myself, I think I would hire a new lawyer,” Senate Judiciary Committee Chairman Chuck Grassley, an Iowa Republican told CNN early Monday.
Trump’s comments on pardoning himself come after the New York Times over the weekend published a 20-page letter written by Trump attorney Jay Sekulow and then-Trump attorney John Dowd to special counsel Robert Mueller, who is investigating Russian interference in the 2016 election and its alleged links to the Trump campaign.
The two lawyers argued in the January letter that Trump could not have obstructed justice in the Russia investigation because the Constitution empowers him to “terminate the inquiry, or even exercise his power to pardon if he so desired.”
On Monday, Trump also rallied against Mueller, calling his appointment “totally UNCONSTITUTIONAL.”
Trump’s options are a bit more concrete on what he can and cannot do with the special counsel.
Under the special counsel regulations, Trump cannot fire Mueller — only Deputy Attorney General Rod Rosenstein can do so. Rosenstein appointed Mueller following Attorney General Jeff Sessions’ recusal on all Russia-related matters.
[Related: Trump reportedly told Jeff Sessions he could be a ‘hero’ to the Right by un-recusing himself]
However, former Acting Solicitor General Neal Katyal explained that Trump “could order the special-counsel regulations repealed and then fire Mueller himself.”
South Texas College of Law associate professor Josh Blackman also argued that Trump could argue the special-counsel regulations “violate[s] his Article II powers over removal and foreign policy and order Rosenstein, or someone else in the chain of command, to remove the special counsel.”
“Make no mistake: Mueller’s firing would likely accelerate the end of the Trump administration. But an order from the Acting Attorney General and regulations published in the Federal Register do not serve as a meaningful bulwark for the President’s exercise of constitutional authority,” Blackman explained.
