This presidency is raising all kinds of novel constitutional questions.
Starting in January, people who could not have pronounced “emoluments” a month previously were opining confidently that President Donald Trump was violating the Constitution’s clause about them. Now we’re having to consider just how far the president’s pardon power runs.
President Trump has reportedly asked his aides that question. Now conservative lawyers David Rivkin and Lee Casey are urging him to use the pardon power expansively, to block prosecutors from investigating and charging “anyone involved in supposed collusion with Russia or Russians during the 2016 presidential campaign,” including the president himself. Their Wall Street Journal op-ed goes even further, advising pardons for anyone involved in arguably related Obama administration misconduct.
Whether the courts would be obliged to respect a presidential self-pardon is a disputed question. But let’s assume that judges could not review the pardons that Rivkin and Casey recommend, as they cannot review the vast run of pardons. The president should restrain himself from issuing these pardons even if he has the legal power to grant them — and even if his anger over special prosecutor Robert Mueller’s investigation of possible collusion between his campaign and Russia tempts him to make them.
The conservative lawyers say the pardons are necessary to end the “madness” that the investigation has already produced. But they do not justify that characterization of the harms that blanket pardons would prevent.
They suggest two harms from allowing. Mueller to continue. First, they claim that he is threatening to intrude on presidential authority by treating President Trump’s firing of James Comey as director of the FBI as obstruction of justice. “A president cannot obstruct justice through the exercise of his constitutional and discretionary authority,” they say.
The statutes can be read to suggest that presidents can indeed obstruct justice in that way: A corrupt motive can convert legal into illegal activity. But even if Rivkin and Casey are right about presidential immunity, their argument against Mueller is highly speculative. The possibility that Mueller will stretch the law to the detriment of the presidency is not a good reason for pre-emptively pardoning people for lying to the FBI or committing other illegal acts.
Second, the authors note that the investigation is deeply enmeshed in partisan politics. Trump’s political opponents are hoping, sometimes openly, that it will lead to impeachment. Some of his supporters have “tremendous bitterness” about the investigation, which they see “as an effort by Washington mandarins to nullify their vote.” And Rivkin and Casey note that pardons have been used in the past to foster civil peace.
They offer an alternative way to make sure presidents do not commit serious misconduct: Congress can investigate them and, depending on the results, impeach and remove them from office. But this argument self-destructs. A congressional investigation would be politicized in exactly the same way that they lament.
Trump’s enemies would want the investigation to result in his ouster, and his supporters would treat it as an illegitimate attempt to undo the election. Any mechanism for keeping a president within the bounds of law runs the risk of becoming the stuff of partisan controversy. If we don’t want to run that risk, we will just have to give up on holding presidents accountable.
Pardons all around won’t make for national harmony anyway. They would make the controversies already swirling around Trump burn hotter. They would lead to more and louder calls for impeachment. And they should.
The standards governing impeachment are not entirely clear. A conscientious congressman would not consider his mere disagreement with an administration’s policies proof that a president had committed the “high crimes and misdemeanors” that warrant removal under the Constitution.
But abuse of the pardon power qualifies, and using pardons to short-circuit an investigation that threatens the president’s political interests would be an abuse. Let’s hope Trump rejects this bad advice.