President Trump and his allies are claiming the president has the right to pardon himself should he be convicted of a crime, placing him above the law.
On Twitter Monday, Trump said: “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?” He then again decried special counsel Robert Mueller’s probe as a “never ending Witch Hunt.”
Trump later added that the “appointment of the Special Councel [sic] is totally UNCONSTITUTIONAL! Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!”
“He probably does,” [Rudy] Giuliani said, when asked on ABC’s “This Week” if Trump has the ability to pardon himself. “He has no intention of pardoning himself, but he probably — not to say he can’t.”
Giuliani’s comments came less than 24 hours after the revelation Saturday that the president’s legal team argued in a secret January memo to special counsel Robert S. Mueller III that Trump could not have obstructed an FBI probe into Russian interference in the 2016 election because, as president, he has total control over all federal investigations.
At the same time, Giuliani acknowledged the president exercising his pardon power for himself would be problematic.
He went on to describe such a move as “unthinkable,” and said it would probably lead immediately to impeachment.
On Monday, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) took a shot at Giuliani.
This is not the first time the matter has been discussed. In an August 5, 1974 Department of Justice opinion issued four days before President Nixon resigned, Acting Assistant Attorney General Mary Lawton wrote the president cannot be his own judge and, therefore, cannot pardon himself. However, she also explained there is a loophole the president could exploit.
Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.
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.
In other words, President Trump could step aside, have Vice President Pence pardon him, and then step right back into the office of the president. And it unclear whether Republicans in Congress would stop him.
The Republican Party, which currently controls Congress, has so far failed to assert any clear red line over which Trump could walk that would prompt them to take action against their party’s leader. And Republican lawmakers have remained largely silent as Trump has repeatedly gone to war with his Justice Department and the FBI, intentionally and routinely degrading public trust in the institutions tasked with holding him accountable for misbehavior.
Presidential or Legislative Pardon of the President (Justice.gov)
Giuliani calls it ‘unthinkable’ that Trump would pardon himself (WaPo)