No one, including the president, is above the law. But you wouldn’t know that if you listened to a number of recent assertions from President Trump and his legal team.
“I have the absolute right to PARDON myself,” President Trump announced last week on Twitter. His lawyers have made similarly far-reaching claims of executive power. “[I]t is abundantly clear,” they assert, that “no FBI investigation ... even could have been obstructed by the President.” It is their view that “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, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”
These claims raise three questions: As the chief law enforcement official, is it impossible for the president to obstruct justice? Can the president pardon himself? And, more specifically, can he use the pardon power in a way that obstructs justice?
The answer to all three questions is no. The Constitution gives the president broad powers to pardon people and direct Justice Department investigations — but it does not give him the power to undermine the democratic safeguards enshrined there.
The president is not immune from obstruction charges
Federal statutes prohibit the obstruction and attempted obstruction of a federal proceeding, such as an FBI investigation, including “corruptly” interfering with such a proceeding. To corruptly interfere with or obstruct a criminal investigation would be, for example, to pay a bribe for someone’s testimony or cover up wrongdoing.
Mr. Trump’s lawyers assert that because the president is the chief law enforcement officer of the nation, he cannot obstruct justice, no matter what he does. They argue that the president’s position immunizes him with respect to special counsel Robert Mueller’s investigation into whether the Trump campaign colluded with Russia to influence the 2016 election.
This cannot be right. If the president, say, ordered the end of the Paul Manafort investigation because Manafort paid him a bribe, or because the investigation might reveal criminal wrongdoing by the president or his family and friends, that would be a classic “corrupt” interference. The president may have broad authority to end an investigation, but that does not free him to act “corruptly” by taking a bribe or seeking to protect himself from being held accountable for wrongdoing.
Moreover, the implication of Trump’s lawyers’ assertion is that the president could place himself above the law by blocking any criminal investigation into his own wrongdoing. He could “stand in the middle of 5th Avenue and shoot somebody,” as he has boasted, and then call off the investigation into his crime and get off scot-free. This argument cannot be reconciled with a government operating under the rule of law.
This is not the first time that a president has tried this tack. President Nixon made a similar claim when he said, “[W]hen the president does it, that means that it is not illegal.” But as Nixon learned, that is not the system our Constitution established.
The framers were careful to establish a nation of laws, not of men. Having just rid themselves of one king, they intentionally fashioned a republic that would prevent another.
That is why the Constitution obligates the president to “take care that the laws be faithfully executed” and provides that impeached officials shall “be liable and subject to indictment, trial, judgment and punishment, according to law.” This framework would make no sense were the president free to end any investigation into whether he broke the law, as Trump’s lawyers argue. Accordingly, when the House Judiciary Committee voted to impeach President Nixon, lawmakers on both sides of that debate recognized that presidential obstruction of justice was not only impeachable but also a crime.
Whether a sitting president can be indicted and tried while in office is a separate question. The Constitution appears to envision impeachment as the proper response to presidential wrongdoing. A president could be tried criminally after being impeached or after he leaves office. But whether or not a sitting president can be indicted, he can plainly be guilty of obstructing justice if he corruptly seeks to interfere in an ongoing prosecution or investigation.
The president cannot pardon himself
Article II of the Constitution grants the president the “power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.” The pardon power has never been used to pardon the pardon-giver. While the pardon power is broad — presidents can, for example, issue pardons before a person has been charged with a crime — the best reading of the Constitution is that a president cannot pardon him or herself.
There is every reason to believe that the framers did not intend to give the president such unprecedented power. The framers specifically considered the threat of a treasonous president bent on immunizing himself and his collaborators. “The President may himself be guilty. The Traytors may be his own instruments,” Edmund Randolf argued. On this fear, they debated excluding the crime of treason, along with impeachment, from the pardon power. James Wilson, whose view carried the day, asserted, “If he be himself a party to the guilt he can be impeached and prosecuted.”
The Justice Department’s Office of Legal Counsel concluded four days before Nixon resigned that the president could not pardon himself. The office’s lawyers reasoned that such an act would fly in the face of “the fundamental rule that no one may be a judge in his own case.” That cornerstone premise of due process and separation of powers is rooted in English common law principles that date back to long before this country. There is no evidence that the framers sought to break from that longstanding principle.
Moreover, the framers’ conscious choice to adopt a system of separation of powers reinforces that common law rule. The framers sought to separate powers among three independent branches to avoid tyranny. That design, the Supreme Court has emphasized, “serves not only to make Government accountable but also to secure individual liberty.”
The simple but powerful idea is that by dividing power among decision-makers we reduce the risk of abuse. The Constitution accordingly vests the power to make laws in Congress and the power to “faithfully execute” them in the executive branch. It places the power to prosecute crimes in the executive branch and the power to judge them in the courts. And it specifically forbids trial by legislature.
It does all of this to counter the risk of abuse of power. It’s true that the pardon power occupies a special place in our government, but to permit a president to self-pardon would make a mockery of the system, allowing him to violate any law with a get-out-of-jail free card as potent as the royal prerogative the framers fought against.
The Constitution contains a bevy of provisions to reduce related conflicts of interest, including the prohibition on federal officeholders receiving foreign emoluments, the rule against Congress legislating a pay raise for its members, and the bar on members of Congress from taking any federal job that Congress created during the preceding congressional term. Similarly, the Constitution appoints the chief justice to preside over the impeachment of a president, instead of the vice president, who would otherwise face a conflict of interest since the vice president would stand to gain by replacing an impeached president. Self-pardoning is simply another form of such self-dealing, which the framers clearly sought to prevent.
As Chief Justice William Taft said of the pardon power, “Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it.” Trump’s claim that he could pardon himself — not simply for a minor crime, but for conspiring with a foreign power to influence the country’s most important democratic election — threatens to do just that.
The president cannot use the pardon power to obstruct
The federal laws against obstruction make it a crime to “corruptly” influence, obstruct, or impede a federal proceeding or attempt to do so. Were Trump to pardon, say, Michael Flynn or Paul Manafort, in exchange for a promise not to testify against him, that would constitute obstruction for which the president could be charged. Similarly, if a president sold pardons to the highest bidder, that would violate federal bribery laws. On that premise, the FBI opened an investigation into whether President Bill Clinton violated bribery laws when he pardoned Marc Rich, a hedge fund manager whose wife had made significant contributions to the Clintons and the Democratic National Committee.
The Constitution vests in the president a broad power to pardon — including, say, to pardon Manafort if he simply felt sorry for him. Absent a confession or a smoking gun, such as an email or recorded phone conversation, it may be impossible for a prosecutor, judge, or jury to determine whether the president used the pardon power “corruptly” to obstruct justice. But a difficult-to-prove crime is no less a crime. The pardon power is not absolute, and it is not Trump’s ticket to exempt himself from the rule of law.
This piece is cross-posted on ACLU’s blog. Amanda is in the ACLU’s National Legal Department.