Howard Chandler Christy/The Indian Reporter
The framers of the U.S. Constitution gave Presidents broad, unilateral power to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” But the decision to do so was not without controversy.
In fact, the framers vigorously debated what limits should be placed on this power. While all agreed it could not apply to impeachment, some thought the Senate must give its consent and others thought treason should be exempted.
At the end of day, a majority of the framers agreed that the President must have unilateral pardon powers that include treason. Even still, no President has ever claimed that this ability to forgive extends to himself.
No President, that is, until Donald Trump, who recently tweeted, “I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”
The President also again stated that Attorney General Jeff Sessions should have remained able to kill the investigation into whether Trump or his campaign colluded with the Russian government to tilt the 2016 election, bluntly tweeting: “The Russian Witch Hunt Hoax continues, all because Jeff Sessions didn’t tell me he was going to recuse himself … I would have quickly picked someone else.”
The framers vigorously debated what limits should be placed on pardon power.
In other words, the President is not only claiming the ability to pardon himself for illegal or even treasonous behavior; he’s saying he ought to be able to quash the entire investigation, making a pardon unnecessary.
This would be like Nixon publicly lamenting, pre-Saturday Night Massacre, that if he’d known his Attorney General Eliot Richardson wasn’t going to snuff out investigations into Watergate, he never would have picked him!
While Nixon never talked about pardoning himself, the Department of Justice was clearly worried he might try to do so. A few days before Nixon’s 1973 resignation, it issued an opinion stating, “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”
Why would an innocent man kill an investigation into a crime in which he’s a suspect and then pardon himself at the first hint of legal jeopardy? Trump’s explanation is that he is the victim of “The greatest Witch Hunt in political history!”
That’s the card Trump is playing, likely because it’s the only route he sees for surviving—he doesn’t think he can win in court, so he wants to destroy the court itself.
Unlike Nixon, Trump has at his disposal an entire media apparatus—from Sinclair stations to Fox News to rightwing talk radio. He can muddy the waters in a way that Nixon, who also attempted to brand the Watergate investigation a “witch-hunt,” never could have imagined.
Leslie Stahl of 60 Minutes recently recounted a private conversation she had with Trump after the election, pleading with him to stop with his “fake news” mantra. Trump bragged, “You know why I do it? I do it to discredit you all and demean you all, so when you write negative stories about me no one will believe you.”
On June 6 on Fox, Sean Hannity, who is said to talk to President Trump nightly, went so far as to direct witnesses in the Mueller probe to destroy evidence: “Delete all your emails and then acid-wash the emails and hard drives on the phones, then take your phones and bash them with a hammer into little itsy-bitsy pieces.”
In another time, a broadcaster might be concerned about directing people to so flagrantly obstruct justice, but why should Hannity be afraid?
Trump has already signaled, in his pardons of Scooter Libby, Joe Arpaio, and Dinesh D’Souza, that he is willing to help friends and excuse criminal conduct. Veteran Republican strategist Ed Rollins hit the nail on the head a few days ago: “He’s sending the message ‘I can do whatever I want, and I could certainly pardon someone down the line on the Russia probe.’ ”
It was precisely the kind of wholesale abuse Trump has perpetrated some framers believed could occur.
It was precisely such wholesale abuse that some framers believed could occur. The ability to issue pardons for treason, future President James Madison argued, “was so peculiarly improper for the President that he should acquiesce in the transfer of it to the (legislature).”
Virginia planter and politician George Mason agreed, arguing that pardons “may be sometimes exercised to screen from punishment those whom [the President] had secretly instigated to commit the crime and thereby prevent a discovery of his own guilt.”
And New York Governor and future Vice President George Clinton warned that the “unrestrained power of granting pardons for treason” could be used by a President to protect individuals “whom he had secretly instigated to commit the crime.” He said that with unchecked pardoning power and a four-year term, “if the president is possessed of ambition, he has power and time sufficient to ruin his country.”
Jud Lounsbury is a political writer based in Madison, Wisconsin and a frequent contributor to The Progressive. He also blogs at uppitywis.org and you can find him on Twitter @judlounsbury.