Trump Begs His Pardon

Hillary would probably have pardoned herself, too. But neither her husband nor Nixon ever considered it.

It's come to this:

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?

First off, Rudy Giuliani is hardly a "legal scholar". Second of all, actual "legal scholars" are quite divided on the question, though not on its likely political effects:

Some law experts say Donald Trump probably could pardon himself from the Russia probe if he wanted to, as lawyer Rudy Giuliani touted Sunday morning on various political shows, while other scholars called it doubtful.

"I actually think he's probably right," Samuel Morison, a lawyer who formerly worked in the Justice Department's Office of the Pardon Attorney, told the New York Post.

"That's part of the structure of the Constitution. I'm not saying that it would be a good thing, I think it would be kind of crazy," he added. "He might well get impeached if he did it."...

Former U.S. Attorney for the Southern District of New York Preet Bharara doubts Giuliani.

"I think (if) the president decided he was going to pardon himself, I think that's almost self-executing impeachment," Bharara told CNN 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." [emphases added]

Did I mention in the sub-headline that not even Tricky Dick and Sick Willie ever tried pardoning themselves in their impeachment confrontations (Nixon resigning before his could be implemented)? I'm pretty sure I did.

So let's examine the question objectively. The president's pardon power is set forth in Article II, Section 2, Clause 1 of the United States Constitution as follows: "....and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment". The latter being because the power of impeachment belongs to Congress, not the president. Nowhere in that clause is the president given explicitly enumerated power to pardon himself for "offenses against the United States" (i.e. federal crimes); consequently the constitutional originalist (or Madisonian, if you will) take on self-pardoning is that it would be an unconstitutional power grab by any president who attempted it and therefore illegal. On the other hand, nowhere in the rest of the founding document nor in the twenty-seven Amendments is there any express prohibition against a president pardoning himself, either, leading to the "living, breathing" (or Hamiltonian) interpretation that absent such explicit restriction, anything goes. Small wonder that Trump took the latter view, since that's the one that he thinks helps him. And redcaps think he's upholding the Constitution.

The truth of the matter is that presidential self-pardoning is a gray area, neither clearly allowed nor clearly disallowed, leaving it in the realm of politics to decide. Which is why even those "legal scholars" who take the Hamiltonian side - and even hacks like "America's Mayor" - don't even bother denying that Trump pardoning himself would be political suicide. Which is also why no president has ever tried to do so, and why I believe the question was not addressed by the Founders. Remember John Adams' benediction when he moved into the White House: "I pray to heaven to bestow the best of blessings on this house and on all that shall hereafter inhabit it. May none but honest and wise men ever rule under this roof." The Revolutionary generation, being mostly Christians, understood sinful human nature, and that not every future president would live up to President Adams' exhortation. But I don't think they ever thought there'd be a time when the American people would elect somebody so corrupt and even criminal as their president that the question of self-pardon would ever arise. The Constitution's authors were wise, ingenious, foresightful, but they were neither clairvoyant nor omniscient. They simply could not have imagined people like the Clintons, Barack Obama, and Donald Trump ever being allowed anywhere near national power.

Thirdly (going back to my tick-off list at the top), Trump's question is backwards. It's not "why would I pardon myself when I've done nothing wrong?", but why would he assert the right to pardon himself if he's done nothing wrong? This gets back to the optics of how Trump has fought against the Russiagate probe for over a year now: Innocent people don't fight and undermine and try to discredit investigations that they know are going to exonerate them. If Trump truly has done nothing wrong, then let Robert Mueller quietly do his job, and his final report will clear him, and that will be that. And yet every step of the way Trump has ragingly done the exact opposite, arriving at the spectacle of asserting a power little sort of monarchical. He acts like he's guilty of something, and is deathly afraid of Mueller exposing it. The only real question appears to be what it is.

And speaking of horrid optics, there was Rudy's ad-libbed embellishment of Trump's self-pardon power applying even in the event that Trump murdered former FBI Director James Comey, which he's now clumsily trying to walk back:

Donald Trump's lawyer Rudy Giuliani said Monday his example of Trump shooting former FBI director James Comey and not being prosecuted was merely a hypothetical point.

"I think I was asked the question. I didn't elect to say that," Giuliani said on CNN in regards to an interview he gave with HuffPost over the weekend. "I said very theoretically, the answer is the president can't be prosecuted for anything. There's a constitutional remedy for that, and of course that would be entirely ridiculous."

Which is bohunk because Rudy clearly threw out the example of Trump murdering Comey himself:

HuffPost asked Giuliani about the prospects of Trump, or any sitting president, being indicted for a crime for an interview that was published Sunday.

"If he shot James Comey, he'd be impeached the next day," Giuliani said. "Impeach him, and then you can do whatever you want to do to him."

Understand, ladies and gentlemen, Giuliani thought he was defending Trump when he said this. What is it with these people and shooting metaphors? Trump himself boasts in the 2016 campaign that he could "stand in the middle of Fifth Avenue and shoot somebody" and not "lose any voters." Now he sends his mouthpieces out to top that by claiming he could shoot specific people (that he hates, of course) and legally get away with it (since he "wouldn't lose any voters", and therefore Congress wouldn't dare impeach him for it). Did Bill Clinton ever send Lanny Davis or James Carville onto the Sunday shows to "joke" about gunning down Kenneth Starr back in the day? LORD knows they said enough vile things about the Whitewater independent counsel, but they never went that far.

Suffice it to say, Trump is not helping himself, and Giuliani is making it worse.

Since we can take it for granted that Trump will pardon himself if it comes to it (assuming he doesn't blanket-pardon everybody else Mueller indicts to preempt that, which would be its own political firestorm), the real question is whether he would be impeached, and its timing. A Democrat Congress would impeach Trump for still breathing, in which case his giving them legitimate reason to do so would be proverbial icing on their metaphorical cake. But if Trump does so in his trademark emotively impulsive way and cuts to that chase this year, what would Republicans do? The generally expressed sentiment on Capitol Hill has been to warn him not to go where, again, even Nixon and Clinton did not dare to tread. But then again, 'Pubbies have been all hat and no cattle all along when it comes to standing up to Trump and reining in his excesses. A self-pardon would ignite a constitutional crisis that this GOP majority probably wouldn't have the mettle to properly resolve.

You know which branch of government that would leave, don't you? Olympus, of course:

But even if, for the sake of argument, the president were to try [pardoning himself] and even if you thought it was constitutional, American constitutional law is no longer grounded in the text of the founding document. It is grounded in [nine] black robed oligarchs. Even if Trump could get Alito, Thomas, and Gorsuch to go along for the ride, I have a hard time believing Kennedy and Roberts would. I have a hard time believing Alito, Thomas, and Gorsuch would too.

In short, it wouldn't go well for the president, who hasn't exactly enjoyed any degree of success in his court fights, when he's bothered to fight them at all. It would be his equivalent of when the SCOTUS unanimously ordered Nixon to turn over the White House tapes, which was the beginning of the end of his presidency.

It's been said many times, by many pundits, and I will repeat it again here: If Donald Trump "hasn't done anything wrong," then let him act like it, and cut out this self-imagined Götterdämmerung before it becomes self-fulfilling.

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