President Donald Trump said Monday that he has the “absolute right” to pardon himself, a bold assertion that raises the stakes as he and Special Counsel Robert Mueller may be headed toward a Supreme Court battle that could test once and for all how much a president is above the law.
“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?” Trump wrote on Twitter.
Trump quickly followed up with another tweet challenging Mueller’s legal authority.
“The appointment of the Special Councel is totally UNCONSTITUTIONAL!” Trump wrote, misspelling Mueller’s title. “Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!”
Trump’s declarations come after months of negotiations between Trump’s legal team and Mueller’s prosecutors over a presidential subpoena that have yet to bring them to an agreement over terms of an interview regarding the probe into Russian meddling in the 2016 presidential election.
Trump’s lawyers have been building a legal argument since late last summer for why Mueller shouldn’t be able to question Trump, the details of which were outlined in a confidential January memo to Mueller that was leaked to the New York Times over the weekend.
The question of Trump pardoning himself has long hovered over Mueller’s probe. The president has charted new ground in issuing pardons outside of the traditional vetting process, including one last month for the late boxer Jack Johnson. He also suggested he may pardon businesswoman Martha Stewart and commute the sentence of former Illinois Governor Rod Blagojevich.
No previous president, however, has so boldly asserted that laws and traditions simply don’t apply to him.
Trump’s current lead lawyer, Rudy Giuliani, said on NBC’s “Meet the Press” on Sunday that the president “probably does” have the legal power to pardon himself for a crime but the act “would be unthinkable.” He added that a self-pardon “would lead to probably an immediate impeachment.”
The legal memo arguing a president couldn’t obstruct justice under the constitution was written before Giuliani joined Trump’s legal team. The former New York mayor said Sunday that he agreed “with about 80 percent” of the memo’s arguments.
Constitutional Test
Even so, the memo shows Trump’s legal team laying the groundwork to push the limits of presidential power. This approach, which could face its first real test in the coming weeks, could force the kind of constitutional showdown that two past presidents, Richard Nixon and Bill Clinton, essentially sidestepped.
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Mueller hasn’t laid out his case publicly, but his team suggested to Trump’s lawyers in March that a subpoena is on the table.
The January memo pushes a theory, popular with conservative legal theorists, that a president’s power allows him to issue pardons for any reason, end probes into friends and open investigations into enemies, said Harry Sandick, a former prosecutor with the U.S. Attorney for the Southern District of New York and now a white-collar defense lawyer. Under that theory, the only check on that power is impeachment.
“No president has stated it so boldly as this letter states it,” Sandick said in a telephone interview.
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Since taking over as Trump’s lead lawyer last month, Giuliani has been laying out a growing list of demands that Mueller must meet before advising his client to sit for questioning. Giuliani has said he hopes to resolve the question around an interview after the president returns from his June 12 summit with North Korea.
If Trump refuses to sit for questioning or Mueller feels the two sides are at a stalemate, Mueller could issue a subpoena for Trump to appear before a grand jury where he would be under oath and not have his lawyers by his side. If he refused to comply with the order, it would be up to the courts to determine if a president can be compelled to testify in a criminal investigation. Given the legal ambiguity in current law around presidential privilege, the challenge could go to the Supreme Court, legal experts have said.
Opening Bid
In the January letter to Mueller, Trump’s lawyers appears to be laying out an opening strategy in which they took a hard line approach toward doing an interview with Mueller, said Solomon Wisenberg, who served as deputy independent counsel investigating Clinton in the 1990s.
“It’s the way any negotiation would work,” he said.
But the lawyers have shown little indication they are moving from that initial position.
Focused largely on Trump’s firing of James Comey as director of the Federal Bureau of Investigation and its impact on the probe into Russian meddling in the 2016 election, the memo takes a sweeping view of the president’s constitutional authority as the nation’s chief law enforcement officer.
“The president cannot obstruct himself or subordinates acting on his behalf by simply exercising these inherent constitutional powers,” John Dowd and Jay Sekulow wrote in the letter.
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The letter is “pretty extraordinary” in that it states an action that would otherwise be illegal isn’t illegal when a president does it, former Manhattan federal prosecutor Mimi Rocah said.
“If he and his lawyers persist with these types of arguments, it will end up being decided in the courts over a subpoena to testify or in Congress where impeachment, if nothing else, must place some limits on abuses of presidential powers,” Rocah said.
‘Prepare the Public’
Although the two sides have been negotiating an interview since the start of the year, no agreement has been reached and Wisenberg said he believes the letter has now been leaked by Trump’s side “to prepare the public for what’s going to may well be a battle over executive privilege.”
Events since January have shaped the negotiations and Trump’s approach toward Mueller, including the legal case against Trump’s personal lawyer, Michael Cohen. The FBI raided Cohen’s office and personal properties in April.
“The attacks on Mueller have grown in volume and frequency exponentially since the Cohen raid,” said Wisenberg, who is now a partner at the law firm Nelson Mullins Riley & Scarborough LLP.
Both sides would be taking a gamble if Mueller decides to subpoena Trump, Wisenberg said.
“A lot of people just assume that it’s going to be a slam dunk for Mueller. I just don’t think it necessarily is,” Wisenberg said. “Nobody knows for sure what’s going to happen.”
It isn’t clear, for example, if Mueller has the legal authority to challenge executive privilege because he’s operating under a Justice Department regulation that doesn’t explicitly give him such power, Wisenberg said.
During the Clinton investigation, Wisenberg and his boss, Kenneth Starr, obtained a subpoena to compel the president to testify. In response, Clinton backed down from a legal fight and agreed to a voluntary interview.
Clinton didn’t answer all of their questions and they had a second subpoena ready to go but ultimately didn’t use it, Wisenberg said. The legal battle essentially ended with both sides claiming some success.
Gaps in Case
Other legal scholars, however, view the January letter as being based on flimsy and inadequate legal arguments.
“On this fundamental issue of this immunity, then, the president’s lawyers have not put forward a convincing case, nor even seemed inclined to make much of an effort to do so,” Robert Bauer, former White House counsel to President Barack Obama, wrote Sunday on the Lawfare blog.
“The response of Congress and the courts will determine not only Donald Trump’s political future, but also the shape of things to come long after he is gone,” he wrote.
