Whether President Donald Trump can pardon himself is an “open question” in the same sense that it’s an open question whether the moon landing really happened. Yes, there are those who dispute even one of the best documented scientific achievements of all time. And no, the question has never been settled in court. But that’s because there’s never been any need to do that.
Yale Law School grad Josh Hawley, who as Missouri Attorney General is the state’s top lawyer, insists that this is an “open question” since “courts have not said one way or another. But I get where the president is coming from” in claiming he certainly does have that power. Hawley said Robert Mueller’s investigation into potential collusion between Trump’s campaign and Russians meddling in our election “has gone on way too long and cost way too much.”
We have no way of knowing whether as incumbent Sen. Claire McCaskill’s leading challenger, Hawley is just keeping up with his primary opponents. Or angling for another presidential fundraiser. Politically, this may even be the right move in Trump-loving Missouri.
As a legal matter, however, Hawley is not right. If he doesn’t know that better than we do, Yale must be glad he rarely mentions having studied there. Especially given his First Amendment work, it seems inconceivable that he isn’t sure whether the framers intended to put the president above the law. And when did the GOP pitch all those pocket copies of the U.S. Constitution and decide there are no limits on presidential power?
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President Barack Obama was dubbed a king for his supposedly power-mad use of executive orders, though he signed slightly fewer than George W. Bush and many fewer than Trump is on track to autograph. Hawley frequently spoke out against presidential overreach during Obama’s tenure.
But after Trump’s tweet about having “the absolute right to PARDON myself,” Hawley weighed in with an opinion that was a direct quote of the president’s lawyer, Rudy Giuliani, who said Trump’s ability to toss out his own guilty verdict is “an open question,” not yet settled by the courts. Maybe they’re confusing our founding document with the statement attributed to Louis XIV: “L’État, c’est moi.” Or with what Richard Nixon told David Frost: “When the president does it, that means that it is not illegal.”
Fortunately for our democracy, that has not been a widely accepted view in this country. White House lawyers told Nixon that wasn’t an option under “the fundamental rule that no one may be a judge in his own case.” Laurence Tribe, a constitutional law professor at Harvard, Richard W. Painter, chief ethics counsel for George W. Bush, and Norman Eisen, chief ethics counsel for Obama, wrote in The Washington Post that the Constitution “specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.”
The opposing view, that the fact it’s not spelled out that the president can’t do that means he can, is a pretty long walk around the barn. Take it from a former farm boy: “If I were president of the United States and I had a lawyer that told me I could pardon myself,’’ said Sen. Chuck Grassley, the Iowa Republican, “I think I would hire a new lawyer.”
Though McCaskill is in election-year moderate mode, she retweeted Grassley’s remark. “I have such a sense of panic about the rule of law in this country,” she said recently. As Louis XIV didn’t say, “Pas de panique!” (Don’t panic.) But we would love to hear her opponent show even a smidge of the concern for executive overreach that so troubled him under Obama.