Trump said it again today. “I have an absolute right to pardon myself.” Without skipping a beat, he went on to say that he “wouldn’t have to do it because he didn’t do anything wrong.” This, of course, implies that if he did do something wrong — meaning something illegal — he would pardon himself.
This is the president who said “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters,” and he still got elected.
On June 4th I wrote another story about hypotheticals related to presidential pardons:
“If he shot James Comey, he’d be impeached the next day,” Giuliani said. “Impeach him, and then you can do whatever you want to do to him.”
While legal scholars debate whether Rudy is right about whether a president could or couldn’t be prosecuted for murder, I was struck by the normalizing of language like this.
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Asked about this Kellyanne Conway said “It’s a hypothetical exercise that's what you do. I wouldn't say you do it well but you do it often.”
If Trump ever pardoned himself for a major crime like treason, conspiracy, or even fraud the question of the legality of this use of the pardon power could end up being decided by the Supreme Court.
It seems to me the best Constitutional argument against this is that those who wrote Article II Section 2 never intended this to apply to a president pardoning himself because this would give him the absolute power of a dictator or emperor to break any law with impunity. The Originalists on the Court would have to twist themselves into pretzels to agree that the Founding Fathers intended to give the U.S. President the power of King George.
If this ever went to the Supreme Court I can see a hypothetical presented by the side arguing against this right. It is appropriate for a time when an alarming number of Americans including the president believe in conspiracy theories.
I don't know if this is a new thought with me. I may have just watched too many television series like “Scandal” where the presidents aren't clinically paranoid because they really do have enemies out to terminate their presidencies using extreme measures. Consider one of the last episodes of “Scandal.” (There is a real instance of a former vice president plotting to assassinate a president.)
It makes sense that if the president has the absolute right to pardon himself for absolutely everything, there is a disturbing hypothetical.
If a president has the absolute right to pardon himself, there is only one person in the world who could, in theory, assassinate the president and get away with it. This person is the vice president who would assume office immediately on the death of the president, even before he was sworn in.
The 25th Amendment is familiar to readers because of the efforts by Duty to Warn mental health professionals and others who are pressing Vice President Pence to enact Section 4 to remove President Trump because he is mentally unfit for office. Only Section I is relevant here: “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”
Vice President Lyndon Johnson took the Presidential Oath of Office on Air Force One a couple of hours after John F. Kennedy died, but he was technically already the president the instant JFK died.
If you see this in a TV show, remember, you heard the plotline here first.