- The Washington Times - Monday, June 4, 2018

President Trump declared Monday that he has an “absolute right” to pardon himself, sparking a major constitutional clash as he seeks to further discredit special counsel Robert Mueller’s investigation.

Following up on Trump attorney Rudolph W. Giuliani’s comment that the president probably does have the authority to grant himself a pardon, Mr. Trump said he could absolve himself of anything legally. But he quickly added that he has no need to do so because he is blameless in the investigation into suspected campaign collusion with Russia.

“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?” the president tweeted. “In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!”

Congressional Democrats accused Mr. Trump of behaving like a king, and some lawmakers questioned whether the president was claiming to be above the law. Rep. Jerrold Nadler of New York, the top Democrat on the House Judiciary Committee, said no president has ever tried to pardon himself and that the framers of the Constitution believed such a move would be “inherently corrupt.”

“These men had just fought a war against a king and had no intention of turning their new nation over to another,” Mr. Nadler said. “No president is above the law.”

House Judiciary Committee member Steve Cohen, Tennessee Democrat, compared Mr. Trump’s pronouncement to “the restoration of King George III without his splendid education, morals or grace.”

The White House said the president’s critics were getting overheated for no good reason.

“Thankfully, the president hasn’t done anything wrong and wouldn’t have any need for a pardon,” said White House press secretary Sarah Huckabee Sanders. “Certainly, no one is above the law.”

No president has ever pardoned himself, and such action would virtually guarantee a court challenge. The Justice Department’s office of legal counsel wrote a memo in 1974, just before President Nixon resigned amid the Watergate scandal, stating that a president cannot pardon himself because “no one may be a judge in his own case.”

Nixon was subsequently pardoned by President Ford.

The debate over the extent of Mr. Trump’s authority began with the publication of a letter to Mr. Mueller by Trump attorney Jay Sekulow and then-attorney John Dowd, arguing that the president should not have to sit for questions from the special counsel. As part of their reasoning, the lawyers wrote that the president could not have obstructed the Russia investigation because the Constitution gives him the authority to “terminate the inquiry, or even exercise his power to pardon if he so desired.”

The president’s “actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself,” they wrote in the letter, first reported by The New York Times.

Analysts in both parties agreed that Mr. Trump had the authority to fire FBI Director James B. Comey last year, although Democrats pointed to that action as an effort by the president to obstruct justice in the Russia investigation.

In a subsequent tweet Monday, the president also attacked the legal basis for the special counsel, who was appointed after Mr. Comey’s firing.

“The appointment of the Special Councel is totally UNCONSTITUTIONAL!” Mr. Trump said. “Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!”

Congressional Republicans largely stayed out of the debate, although Senate Judiciary Committee Chairman Charles E. Grassley of Iowa expressed skepticism about the president’s assertion of absolute pardon power.

“If I were president of the United States and I had a lawyer that said I could pardon myself, I think I would hire a new lawyer,” Mr. Grassley told CNN.

Even Mr. Giuliani said a self-pardon by the president was “unthinkable,” and Trump ally Chris Christie, a former New Jersey governor, said it would invite impeachment proceedings in the House. A president’s pardon power covers only federal crimes, not state offenses.

Some of the president’s top advisers tried to separate the White House from the debate, which erupted on Mr. Trump’s 500th day in office as the White House was trying to promote the president’s achievements on the economy and foreign policy.

Mrs. Sanders referred all questions about pardons to the president’s outside attorneys, and White House counselor Kellyanne Conway chided reporters for covering the pardon story, calling it a simplistic distraction from more important issues.

“He tweeted about it because you’re all covering something that’s a hypothetical exercise,” Mrs. Conway said. “That’s what you do. I wouldn’t say you do it well, but you do it often. I presume it’s easier than understanding the ‘ins’ and ‘outs’ of North Korea and trade policy.”

The president tweeted Monday afternoon, “The Fake News Media is desperate to distract from the economy and record setting economic numbers and so they keep talking about the phony Russian Witch Hunt.”

But the president’s comments on social media set off alarms among Democratic lawmakers, who took it as a sign of his plans to refuse any subpoenas that might come from Mr. Mueller.

Mr. Nadler said in a statement, “He thinks that, because he is the president, his actions cannot be an obstruction of justice. His lawyers think that he can ignore a subpoena from a federal grand jury, and threaten the Special Counsel accordingly. But President Trump is wrong.

“The president is no different from other public officials who are regularly prosecuted for taking bribes in exchange for official acts or using their office to interfere with criminal investigations,” Mr. Nadler said. “President Trump may pressure the Director of the FBI [Mr. Comey] to drop an investigation into his national security advisor [Michael Flynn], he may later fire that FBI Director, and he may engage in a months-long campaign to portray his own Department of Justice as corrupt — but if he does so with the specific intent to obstruct the work of the Special Counsel, then he may have committed a crime.”

Mr. Nadler said the special counsel’s investigation is “clearly constitutional” and that former Trump campaign manager Paul Manafort failed with the same “desperate” legal argument in his court case last month. He also said Mr. Trump must comply with a subpoena from the special counsel if it comes.

“Special Counsel Mueller can almost certainly compel the president’s testimony if he requires it,” the lawmaker said.

Brian Kalt, a Michigan State University law school professor who specializes in the presidency, said the act of a president’s pardoning of himself might itself be a crime.

Writing in Foreign Policy magazine last year, Mr. Kalt compared a self-pardon to vetoing legislation in return for taking a bribe.

“The veto would be valid, but the bribe would be a felony,” Mr. Kalt wrote. “Depending on the circumstances, a self-pardon might similarly be valid in its function as a pardon but felonious as an obstruction of justice.”

He said there are obvious political reasons for a president to avoid a self-pardon.

“It would look so craven and corrupt that it would greatly weaken the president’s political position with all but his most die-hard supporters,” Mr. Kalt wrote. “If he were facing impeachment, it would increase his chances of being removed from office. If there were an election anytime soon, he and his party could pay a tremendous price.”

Former U.S. Attorney Harry Litman, a law professor at UCLA who has worked on top Democratic campaigns, said Mr. Trump’s claim of the power to pardon himself “rests on predictably absolutist views of presidential power that would place him singularly above the law, where only he thinks he deserves to be.”

Although the issue has never been tested in court, the reasoning from the Justice Department in 1974 is considered one of the few controlling opinions on the subject.

“Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself,” acting Assistant Attorney General Mary Lawton wrote in a memo.

“If under the Twenty-Fifth Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President. Thereafter the President could either resign or resume the duties of his office,” she wrote.

• Dave Boyer can be reached at dboyer@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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