I’m not going to pretend I know the answer to the question: Can the President pardon himself? I don’t know, you don’t know, five Supreme Court justices don’t know. At some level, it is an unknowable question.
Last year (people forget that the Presidential self-pardon has been a constant specter haunting the entire investigation) I wrote a list of likely scenarios, should the President pardon himself. Note, I put “impeachment” of the President fairly low on the list because I have no faith that the cowards in Congress would act to protect Constitutional government if it came to that. Nothing I’ve seen in the past year has changed my opinion on that.
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But, to be clear, IMPEACHMENT is the only Constitutional protection we have against a President who places himself beyond the rule of law. Impeachment is literally all there is, legally at least. Every speck of digital ink spilled contemplating the scope President’s pardon power without talking about impeachment is a waste.
This is not “Philosophy of Laws: 101.” Instead, open your book “So you’ve elected a despot” to chapter 1, page 1. It says right there: “Does your system allow for the impeachment of said despot, and peaceful removal from power?” If YES, then you can stop reading.
Impeachment or the 25th Amendment are the only Constitutional ways to remove a sitting president from power. That’s the full list of despotic remedies. As I’ve said before, Trump could serve out the rest of his term FROM JAIL and still be “The President,” unless he is impeached by Congress and convicted by the Senate.
It doesn’t MATTER if he pardons himself. If Congress won’t act, he can do ANYTHING HE WANTS. Could he shoot James Comey, as Rudy Giuliani suggested, and still be President? Yes! Could he chain Melania up in the basement? For all we know, he’s done so already! Could he be indicted and convicted of a crime and simply refuse to report for jail? Of course. WHO is going to slap the cuffs on him? A U.S. Marshall? Even Tommy Lee Jones in the Fugitive doesn’t have that kind of swag. You need to stop asking if Courts think the President can pardon himself, and start asking if the Secretary of Defense thinks the President can pardon himself.
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Of COURSE Trump can pardon himself if James Mattis is on board. Hell, he could KILL JAMES MATTIS if the Secret Service Praetorians have his back. We stopped living in a Republic the minute we turned it over to the Russian oligarchs.
The only relevant legal question is: what happens after Trump leaves office? Will he be arrested, like, the day a new president is sworn in? If so, will a preemptive self-pardon carry sway with whatever legal authorities are arrayed against former-President Trump? I don’t know the answer to that question either, but at least it’s one worth asking.
In the meantime, the self-pardon is just like the flask of poison in the box with Schrodinger’s cat. We have to assume that it has both already been broken AND is not yet broken. From the quantum perspective, Trump has ALREADY pardoned himself… and not yet pardoned himself, at the same time. The factual existence of the self-pardon is irrelevant because Trump is a radioactive isotope in decay.
Either we are going to open the box and get serious about impeaching this despot, or we’re not. And that’s the only measurement that is “real.”
Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.