With Mueller’s net tightening, Trump is said to be exploring whether or not he can pardon himself, and those close to him

With Donald Trump Jr., Paul Manafort and Jared Kushner all set to testify before Senate committees this coming week, I can’t say as though I was surprised to read just now in the Washington Post that President Trump, according to White House sources, has begun talking with his attorneys about the possibility of pardoning those in his inner circle, as well as himself… Following is a clip from the article in question, in case you might have missed it.

Some of President Trump’s lawyers are exploring ways to limit or undercut special counsel Robert S. Mueller III’s Russia investigation, building a case against what they allege are his conflicts of interest and discussing the president’s authority to grant pardons, according to people familiar with the effort.

Trump has asked his advisers about his power to pardon aides, family members and even himself in connection with the probe, according to one of those people. A second person said Trump’s lawyers have been discussing the president’s pardoning powers among themselves.

Trump’s legal team declined to comment on the issue. But one adviser said the president has simply expressed a curiosity in understanding the reach of his pardoning authority, as well as the limits of Mueller’s investigation…

Frankly, I wouldn’t be at all surprised, given what’s come out over this past week concerning the June 9, 2016 meeting at Trump Tower between senior members of the Trump campaign, a Kremlin attorney charged with ending sanctions levied against Russia, a former Russian counter intelligence officer with a reputation for hacking, and a Russian national implicated in laundering money on behalf of organized crime figures friendly with Putin, if we heard late tomorrow that Trump had not only pardoned his son, his son-in-law, and his former campaign manager, but had also moved to fire Robert Mueller, the former FBI director tasked with heading the investigation into Russian interference in our last election. One would hope, if Trump reacted in such a way, Republicans in Congress would finally begin to move against him, but, as you know, we’re in completely uncharted waters here, and anything could happen.

Regardless of whether or not something absolutely earth shattering happens in the next day or two, one does get the sense that the stage has been set for a showdown of some kind, now that Trump has thrown down the gauntlet [as he did yesterday when he told the New York Times that he wouldn’t accept Mueller looking into his personal finances], and Mueller has picked it up [making it clear today that, yes, he’d be doing just that].

Here’s the whole thing told in two tweets.

So, yeah, apparently Mueller, the ex-Marine former FBI director, wasn’t all put off by Trump’s hollow blackmail threat… a fact which, I’m sure, came only as a surprise to our President.

Anyway, as you might imagine, everyone is now running around like crazy, asking questions like, “Can a president really pardon himself?” and “What would Republican members of Congress do if he were to fire Mueller?” Well, here, with a partial answer to the first question, is what MSU Law professor Brian C. Kalt had to tell the Washington Post.

…Currently, the discussions of pardoning authority by Trump’s legal team are purely theoretical, according to two people familiar with the ongoing conversations. But if Trump pardoned himself in the face of the ongoing Mueller investigation, it would set off a legal and political firestorm, first around the question of whether a president can use the constitutional pardon power in that way.

“This is a fiercely debated but unresolved legal question,” said Brian C. Kalt, a constitutional law expert at Michigan State University who has written extensively on the question.

The power to pardon is granted to the president in Article II, Section 2, of the Constitution, which gives the commander in chief the power to “grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” That means pardon authority extends to federal criminal prosecution but not to state level or impeachment inquiries.

No president has sought to pardon himself, so no courts have reviewed it. Although Kalt says the weight of the law argues against a president pardoning himself, he says the question is open and predicts such an action would move through the courts all the way to the Supreme Court…

update: The cool thing about Twitter is the you can just write to folks, and sometimes they actually write back… Here’s the beginning of my conversation with Brian Kalt on the scope of presidential pardon power.

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34 Comments

  1. Anonymous
    Posted July 20, 2017 at 10:13 pm | Permalink

    Worth noting that Mark Corallo, the spokesman for Trump’s legal team, just resigned.

  2. Meta
    Posted July 20, 2017 at 10:39 pm | Permalink

    Just Security: “Why Trump Can’t (Lawfully) Fire Mueller”

    There’s been a great deal of noise from some of the President’s confidants over the past 48 hours suggesting that he might (try to) remove Special Counsel Robert Mueller. Most alarmingly, Trump friend Chris Ruddy told Judy Woodruff on PBS NewsHour today that “I think [the President is] considering perhaps terminating the special counsel. I think he’s weighing that option.”

    This post is merely a very summary explanation of why the President can’t do that–and why he probably can’t compel other officials to do so, either. I’ll fill it out further if the question continues to linger. But for now I simply wanted to set the legal groundwork and offer the big picture, because there’s a lot of confusion out there on this question. (As I was writing this, my friend Jack Goldsmith was drafting a post of his own, which is excellent and more detailed than mine on some aspects of the matter. Although each of our posts contains specifics that are not in the other’s, I believe that Jack’s post and mine are wholly consistent with one another . . . with one exception, which I’ll identify below.)

    There are two reasons why the President himself cannot remove Mueller. First, the statutory power to appoint a Special Counsel is vested in the Attorney General, and the longstanding general rule is that unless Congress specifies otherwise, “the power of removal [is] incident to the power of appointment.” Thus “the President has certainly no power to remove” officers appointed by a department head (absent statutory authorization for such presidential removal, which is not present here); such removal, instead, can be exercised only by the department head who appointed the officer–here, the (Acting) Attorney General. Ex parte Hennen, 38 U.S. (13 Pet.) 230, 259-60 (1839); accord PCAOB v. FEF, 561 U.S. 477, 493 (2010). This explains why Richard Nixon did not try to personally remove Archibald Cox (or, for that matter, Leon Jaworski).

    Second, the removal provision of the regulation pursuant to which the Acting AG appointed Mueller, 28 CFR 600.7(d), provides that a Special Counsel appointed from outside the Department of Justice (as Mueller was) “may be disciplined or removed from office only by the personal action of the Attorney General.” And, as explained below, that limitation is binding on the Executive branch (including the President) as long as the regulation is on the books.

    All of which is to say that the only way Trump can get rid of Mueller is to have the (Acting) Attorney General remove him. (I keep referring to the “Acting” AG because Attorney General Sessions is recused from such matters.) In his post, Jack asserts in passing that “[t]here are good constitutional arguments in support of th[e] possibility” that Trump could himself fire Mueller and abrogate or ignore the DOJ regulation. But really, there aren’t. (This is the one discrete thing on which Jack and I differ.) Nor is Jack right, I think, to suggest that it is a “hard question[] . . . whether Trump could circumvent the regulations—either ignore them or abrogate them—and fire Mueller himself,” or change the regulation “by Executive order.” He doesn’t have those authorities–only the power to remove DAGs who do not comply with his wishes.

    So the decision would be Rod Rosenstein’s to make. And Rosenstein is not going to remove Mueller, if only because that same DOJ regulation permits such removal of a Special Counsel appointed from outside the Department of Justice (as Mueller was) only “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”

    Read more:
    https://www.justsecurity.org/42044/trump-lawfully-fire-mueller/

  3. Posted July 20, 2017 at 10:39 pm | Permalink

    Corallo wasn’t the only one to quit today. Kasowitz has also jumped ship. By morning, I suspect Trump will be dialing 1-800-CALL-SAM.

  4. Jim
    Posted July 21, 2017 at 8:00 am | Permalink

    It’s nice to see Trump showing some interest in the Constitution.

  5. Jcp2
    Posted July 21, 2017 at 8:52 am | Permalink

    Mark, get with the program. The worst thing that could happen for you is for Trump to leave office. If that happens, then Pence will be president and the entire Republican agenda becomes much more likely to become law. Far better for Trump to stagger around and paralyze Congressional Republicans until 2018, when there is a chance of the Democrats gaining more leverage in the Senate or House to offset the possibility of a Pence presidency. Then we can talk.

  6. ChrisG
    Posted July 21, 2017 at 8:55 am | Permalink

    I know what you’re getting at, but there’s no way Sam would answer the Orange ones’ calls.

    I don’t care how big the retainer would be. People may deride them as “ambulance chasers” but the Bernstein’s are principled people.

  7. Pete
    Posted July 21, 2017 at 8:58 am | Permalink

    @KSoltisAnderson: “Currently 73% of GOP views Trump as “cooperating” with investigation. 54% say he’s acted “fitting and proper way” as POTUS.”

    https://twitter.com/KSoltisAnderson/status/888384332347432962

  8. M
    Posted July 21, 2017 at 9:07 am | Permalink

    Jcp2, like I’ve said before, I think this goes well beyond the realm of political calculus. Trump is a cancer to our institutions, and we cannot allow him to stay in power. I realize that impeachment may hurt us in 2018, but I’m OK with that, just like I’m OK with stopping Trumpcare, even though I know, if it passed, the Dems would sweep Congress. This isn’t about power or control. This is about doing the right thing, and protecting our institutions for future generations. We have to prosecute Trump to the fullest extent of the law, exposing every single detail, in hopes that people start digging holes in their backyards and burying their MAGA merchandise in shame.

  9. Joe Scarborough by proxy
    Posted July 21, 2017 at 9:11 am | Permalink

    “Trump may think pardoning his family for crimes more survivable than firing Mueller. But both are abuses of power and impeachable offenses.”

  10. M
    Posted July 21, 2017 at 9:12 am | Permalink

    Pete, I have to tell myself these people will eventually come around. If I didn’t think that were the case, I’d never be able to get out of bed in the morning.

  11. Jcp2
    Posted July 21, 2017 at 9:21 am | Permalink

    But he’s not going to be impeached, not until 2018 at the earliest.

  12. Chrissy LasDodo
    Posted July 21, 2017 at 9:23 am | Permalink

    Actually, M… The ones I know personally are doubling down. Scouring increasingly right wing news “sites” to appease not their moral compromising with Trump but with the GOP itself. Again…this group is taking this -personally- ; they’ve internalized it making it about them, pushing personal boundaries of narcissism toward I don’t know what. I’ve resigned myself to our imminent doomsday.

  13. Jean Henry
    Posted July 21, 2017 at 9:38 am | Permalink

    Re: the recent polling showing support for Trump, this uptick in his approval seems to be a reaction to the calls for his ouster. If that’s the case, so be it. The Clinton numbers reflect disappointment . Also to be expected. Most Republicans supported Nixon right up until he was impeached. He was re-elected mid investigation. And still he left office. I doubt Trumo will make it to a re-election bid. We’ll see. It’s hard to admit one is wrong about a candidate. I’m not into attacking Trump supporters. I don’t think it helps anything. But Trump is fair game. As are his staff. That’s the nature of public office. I never once saw a conservative worry about what a liberal thought.
    We need to keep the pressure on. Vigilance is necessary now. I very much appreciate these summaries, Mark.

  14. Iron Lung Larson
    Posted July 21, 2017 at 9:43 am | Permalink

    You have to wonder how people can support a guy who has to even think about the possibility of pardoning himself.

  15. Jean Henry
    Posted July 21, 2017 at 9:43 am | Permalink

    I asked my Dad this past week about Trump supporters in my religious conservative home town. He said that the working class there split their vote between Clinton and Trump. He said they are disappointed about health care and also hopeful re protectionism. They are less interested in Russia. He doesn’t think their support will hold. He also says it was the wealthy back home who were all in for Trump. “They’d vote for the devil if he were Republican.” So much for Christian morality.

  16. Jean Henry
    Posted July 21, 2017 at 9:48 am | Permalink

    jCP is right. Impeachment is not going to happen unless the house turns over in 2018. The process is what it is and the GOP aren’t stupid. They want to be re-elected above all.
    But Trump is clearly worried about indictment of himself and his family. That can happen via the FBI and I suspect at least a few will be indicted sometime around 2018, unless Mueller pulls a Comey.

  17. Reid Paskiewicz
    Posted July 21, 2017 at 10:18 am | Permalink

    He will absolutely do everything he can (legal or not) to fight what he perceives as a personal attack on his family rather than rule of law. There had never been clear limits or moral awareness with him when in a battle. Democracy and the separation of the Justice dept will continue to erode and be undermined until the GOP finally puts the country before politics. I honestly don’t know what it would take at this point.

    Also with the amount of enemies he has made at the CIA and FBI I’m surprised there hasn’t been a hack and leak of his financial records or something damaging. There has to be some kind of internal resistance going on. Maybe I watch too much TV.

  18. anonymous
    Posted July 21, 2017 at 10:25 am | Permalink

    Harvard’s Laurence Tribe:

    “My view: a president’s self-pardon would be unconstitutional.”

  19. Jcp2
    Posted July 21, 2017 at 12:18 pm | Permalink

    Mark, I get that you are hoping that they will “come around” or you can’t see yourself getting out of bed in the morning. That’s only because you are seeing now out in the open what many minorities have always known was the case for years. If it makes you uncomfortable, just think of how we feel. Yet we are still getting out of bed.

  20. Jean Henry
    Posted July 21, 2017 at 10:50 pm | Permalink

    And the hits just keep on coming… https://www.washingtonpost.com/world/national-security/sessions-discussed-trump-campaign-related-matters-with-russian-ambassador-us-intelligence-intercepts-show/2017/07/21/3e704692-6e44-11e7-9c15-177740635e83_story.html

    One does have to wonder how a corrupt president can stay in office when he has alienated the entire intelligence community. Long time WH reporter today 9since Reagan era) said he has never seen so many leaks from either intelligence or the White house. Nothing is normal. As fucked up as DC is, who would have suspected it could get this fucked up?

  21. wobblie
    Posted July 22, 2017 at 4:01 am | Permalink

    Jean, The intelligence agencies knew about these Sessions meeting since June of last year. Why did the Demoracts (ie. Obama) not do anything about that information? Why has the CIA decided to “leak” this info now? And how is the CIA leakers in this instance any different than what Snowden is accused of ? Sessions is clearly guilty of perjury during his confirmation hearings. I would have thought this information would have been important to the government in making decisions. Why do you suppose they withheld this info from our elected officials when they were deciding on who the next Attorney General would be. Who really is running the government?

  22. Jean Henry
    Posted July 22, 2017 at 6:24 am | Permalink

    Wobblie– There is a public record of why Obama did not reveal what intelligence agencies knew this past fall. Remember, this past fall, when classified information staying classified was SO important. The current state of endless leaks (v strategic) from the intelligence community is new. The answers to your questions are evident and have been confirmed in the press, which has openly questioned Obama’s choices there– but never suggested there was some reason other than his standard caution about the appearance of impropriety that motivated him.
    You consistently disregard any information that does not confirm your narrative. There is no point in engaging your perspective. It’s circular logic is impenetrable.

  23. Jean Henry
    Posted July 22, 2017 at 6:26 am | Permalink

    RE Trump supporters: in some areas they have changed their minds dramatically, like health care.
    https://www.nytimes.com/2017/07/20/health/affordable-care-act-repeal-popularity-doylestown-pennsylvania.html

    They still support the president though and will until all the cards are on the table.

  24. wobblie
    Posted July 22, 2017 at 2:24 pm | Permalink

    I am sorry Jean. Classified information needs to be shared with decision makers, other wise what is the point. Selective leaks from the Intelligence community has been SOP for decades. Your endless sophistry rather than engaging in discussion is why the Democrats only policy is anti-Trump.

  25. Maria Huffman
    Posted July 22, 2017 at 9:10 pm | Permalink

    I think Mueller should be let go. He was in charge in December 2012 when those Conneticut shootings at Sandy Hook School in Newtown occurred. I completely think he should go.
    I don’t care if he is supposedly good at his job. He wasn’t that good, if you ask me and even if you don’t.
    Maria Huffman

  26. Jean Henry
    Posted July 22, 2017 at 9:37 pm | Permalink

    Wobblie– do you understand the difference between a leak of calssified information to the public and the sharing of classified information with select members of congress on relevant committees (which happened re Russia interference in election)?

    Re the calls for impeachment: https://www.youtube.com/watch?v=5iEaI-H_4Sk

    See Wobblie at 3:14

  27. Iron Lung
    Posted July 23, 2017 at 3:01 am | Permalink

    “Classified information needs to be shared with decision makers, other wise what is the point.”

    Assuming that the “decision makers” are competent or work in the best interests of the country. Clearly, at present, that’s not the case.

  28. wobblie
    Posted July 23, 2017 at 5:15 am | Permalink

    And as the ranking Democrat on the Intelligence Committee, Feinstein said in June after having allegedly seen all the “russian hacking” intelligence, she saw no evidence of any collusion between Trump and the Russians. Either she lied, or the CIA,NSA etc. lied to her. Obviously many people feel like Iron Lung. They would rather have secret un-elected faceless bureaucrats run the country, “in the best interest of the country”.
    The next Federal election is 14 months away and other than being anti-Trump the Democrats have no agenda. The Democrats have taken a beating in the off year elections recently and it is beginning to look like the Democrats will yet again. It maybe because the Democrats have rejected many of the policies that the majority of Americans favor, ie. peace, single payer, and the end of austerity and hand outs to the rich and favored.

  29. Lynne
    Posted July 23, 2017 at 7:50 pm | Permalink

    Too bad most of those pro-peace, pro single payer, anti-austerity folks haven’t figured out that it is up to THEM to do do the hard work to get the party to run the candidates they like. Actually, some of them have and I am glad to see it but too many are sitting around complaining instead of doing anything.

    Anyhooo, Trump isnt going to be impeached anytime soon but could be if the midterms change the makeup of congress. However even then, we might have to wonder if we want to. For instance, I was talking to a government employee recently who works with various other agencies and he said that people in the Office of Management and Budget have been ordered to do nothing unless they are specifically ordered to do something. Yet, they have not been told to do anything so they are sitting around reading novels at their desks. It is a similar situation at the State Dept which apparently is driving some of them nuts as they tend to be Type As who usually are quite busy. Trumps incompetence is preventing some damage. Pence is probably much more competent!

  30. wobblie
    Posted July 24, 2017 at 3:33 am | Permalink

    Worked in the Democratic party for decades, was once a gold star contributor. How much have you given to local democrats you thought would move the party in a progressive direction. 2 decades and constant sell outs. Fool me once, shame on me…

  31. Lynne
    Posted July 24, 2017 at 9:23 am | Permalink

    I have donated money and time to progressive candidates and I feel my efforts have moved the party to the left. Clinton ran on the most progressive platform in recent history after all. Too bad the message from the far left was that they wont support the Democrats moving to the left if they dont get everything they want and therefore there is no point in the party moving left.

  32. wobblie
    Posted July 24, 2017 at 3:21 pm | Permalink

    The party has moved to the right since Bill Clinton. I worked for eight years for Granholm and she was a moderate Republican at best. She left numerous Engler folks at their positions when she could/should have replaced them. (When I was in the counsels of Government I would tell folks that I was an Adli Stevenson Democrat. They would think either the Senator or Governor from Illinois. I would remind them that the first Adli, was the first Democrat Postmaster General following reconstruction. He had the pleasure of firing thousands of Republican postal employees . Snyder’s first executive order was to fire me–the Republican understand hardball, the Democrats play softball) .
    Constantly trying to get the Republicans to compromise has done nothing but drag the Democrats to the right. The Democrats are rotten from top to bottom as near as I can tell. Ronnie Petterson wants my vote again. Didn’t he just sell out Ypsi on the recreation center? I’ve been to at least a half dozen Michigan Democratic conventions only to see the UAW throw its weight around. If the party repudiates the UAW choice, they sit out the election (Wholpe, Fieger to remember a couple). Eight years ago Democrats fled Benero, and gave us this disastrous Snyder administration. Living in a fantasy will not stop the poisoning in Flint, the illegal seizures and garnishment of falsely accused unemployed folks money (Michigan’s ongoing unemployment insurance crises has stolen millions from working folks and the Democrats are complicit).
    Even now Congressional Democrats are lining up to support massive criminal penalties for those individuals who would support a boycott against Israel.
    Remind me again why I should vote for a Democrat.
    Is the party in favor of single payer health insurance? NO
    Is the party in favor of ending the wars and cutting the defense budgets? NO
    This is something like 60% of the economy and they want the status quo.
    These are the elephants. Until we end the wars we will not move to a sustainable environmental policy or move forward in any progressive manner

  33. Eel
    Posted July 25, 2017 at 8:36 am | Permalink

    The Guardian talks with Trump supporters

    ‘If he had to cheat to get in, I’m OK with that’

    https://www.theguardian.com/us-news/video/2017/jul/20/trump-supporters-northampton-county-pennsylvania-video

  34. Lynne
    Posted July 25, 2017 at 11:36 am | Permalink

    The party has not moved right since the Clinton administration. Hell, even Bill Clinton himself has become more liberal than he was before. There are plenty of Democrats who are in favor of single payer but who simply want to approach it gradually which actually makes a lot of sense since shocking a billion dollar industry with too much change all at once would be very harmful to those employed in that industry. There really are Democrats though who support a gradual extension of Medicare to all but yes, they do often find that they have to compromise with Congressional Republicans who are in charge. If that has pulled the party to the right it is because the left hasn’t worked hard enough to counter other elements of the party. For instance, if you don’t like Ronnie Peterson, considering how little people vote in primaries, it shouldn’t take all that much for a far left movement to unseat him in a primary. The alternative would be to choose not to vote for him in a general election which in his case, probably wouldn’t affect the outcome but in a closer district would mean having someone even less liberal. How is that a positive thing? Yes, groups like the UAW have a lot of influence in the party and I can see how it can be frustrating. I am not sure it is fair to say that the Democrats have been complicit in that unemployment scandal as I have heard several speaking out against it. Same with Flint. Democrats fought hard to prevent the political climate that caused Flint including getting an anti EFM referendum on the ballot.

    Like it or not though, because we have a two party system, we have large parties which each encompass a wide range of ideology but primaries are where the intraparty battles should be taking place. I also don’t think it would be necessarily a good thing to have political witch hunts of civil servants every time the government changes hands. One of the reasons why Republicans have been so successful has been that they tend to value party loyalty more and thus are likely to vote for anyone who runs with an R next to their name (this is why, btw, I am going to be voting in the GOP primary before the midterms so that I can have even a small influence on who gets the nomination knowing that even if the person is too moderate for the rabid right wing, they will vote for them anyways unlike the rabid left wing which chooses to give up whatever small power they have)

    The larger point is that the one thing the far left can do to ensure that the Democratic party moves to the right is to abandon the party. Neither the country nor the party moved left when the far left made sure Bush got elected instead of Gore. They are partially responsible for the wars which came after imho. The left also didn’t move the party or the country to the left when they failed to show up for the midterms in 2010 and allowed congress *and* state legislatures/governorships to change hands during a census year which in turn led to the unfair gerrymandering we have today. The far left did move the party to the left by giving Sanders such a strong showing in the primaries but then threw those gains away by not supporting Clinton in the general election even though she adopted the most progressive platform in recent memory. The message they sent was loud and clear: adopting pro-healthcare, pro-immigration, pro-safety net policies will not get the far left to actually turn out and vote. So why should the Dems adopt such a platform again? I mean our country is clearly not moving to the left now is it?

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