Trump: ‘I have the absolute right to pardon myself’

(CNN) — President Donald Trump asserted Monday that he has the right to pardon himself but suggested that he won’t use that power, adding that the special counsel investigation is “unconstitutional.”

“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? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!” the President tweeted.

The President then called Robert Mueller’s investigation “UNCONSTITUTIONAL” but said he would “play the game” because he has “done nothing wrong.” Mueller was appointed by Deputy Attorney General Rod Rosenstein, who was appointed by Trump.

Trump’s comments come after one of his attorneys in the Russia investigation, Rudy Giuliani, said Sunday that Trump “probably does” have the power to pardon himself, but won’t.

“He has no intention of pardoning himself.” Giuliani told ABC’s “This Week.” “It would be an open question. I think it would probably get answered by gosh, that’s what the Constitution says, and if you want to change it, change it. But yes.”

No president has ever pardoned himself, so its legality is a matter of legal debate. But a three-page memo from the Justice Department’s Office of Legal Counsel that was written in 1974 — days before President Richard Nixon resigned — says the President cannot pardon himself because “no one may be a judge in his own case.”

The dispute among scholars on the issue almost guarantees that if Trump faced indictment and pardoned himself, the next step would be a court challenge, with the President’s fate decided by judges — or even the Supreme Court.

‘Unthinkable’ move, Giuliani says

Talk of a potential pardon comes after The New York Times published a 20-page letter to Mueller by Trump attorney Jay Sekulow and then-Trump lawyer John Dowd. They argued that the President could not possibly have committed obstruction in the Russia investigation because the Constitution empowers him to “terminate the inquiry, or even exercise his power to pardon if he so desired.”

Trump’s “actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself,” Dowd and Sekulow wrote.

Trump’s lawyers sent the letter as part of a broader argument that the President should not have to sit down with the special counsel.

Many legal scholars dispute the idea that a President cannot obstruct justice. While Trump did have the authority to fire former FBI Director James Comey, the question becomes whether he had corrupt intent in doing so — the issue at the center of Mueller’s obstruction investigation.

Brookings Institution study in October concluded that the President’s authority to fire the head of the FBI in this case was a “red herring.”

“The fact that the president has lawful authority to take a particular course of action does not immunize him if he takes that action with the unlawful intent of obstructing a proceeding for an improper purpose,” the report said.

During another Sunday show appearance on NBC’s “Meet the Press,” Giuliani added that Trump pardoning himself is “unthinkable” and “would lead to probably an immediate impeachment.”

Giuliani wasn’t the only Republican against the idea of Trump issuing a self-pardon. House Majority Leader Kevin McCarthy, a Republican from California, told CNN’s Dana Bash on “State of the Union” that he doesn’t think the President should grant himself a pardon.


(CNN) — You don’t tweet about pardoning yourself unless you are thinking about pardoning yourself.

That reality sits behind President Donald Trump’s truly amazing tweet on Monday morning — in which he made clear that while he has no plans to pardon himself, he totally could do it if he wanted to.

“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?” tweeted Trump. “In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!”

Absolute right. Ahem.

That the President of the United States felt the need to weigh in on the legal debate over whether or not he can pardon himself provides us a remarkable window into Trump’s mindset at the moment.

There can be no doubt that Trump has a focus bordering on obsession with the special counsel investigation being led by former FBI director Robert Mueller. A quick scroll through his Twitter feed shows how much of his time is consumed by thinking about the investigation. And the tone of those tweets — angry, incredulous and, most interestingly, victimized — suggest just how much emotional investment Trump has in all of this.

(Shortly after Trump sent the “PARDON” tweet, he typed this one out: “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!)

The fact that Trump felt compelled to weigh in on the ongoing legal debate over whether or not he can pardon himself (as well as whether or not Mueller can subpoena him or indict him) means the idea that there may eventually be something to pardon himself for is on his mind.

Take it out of the context of this President and politics. Let’s say that I tweeted that I didn’t run a stop sign this morning — “and if I did, it was poorly marked!”

Your likely reaction would not be: “Sounds like Chris didn’t run a stop sign.”

It would be: “Why is Chris tweeting about running stop signs and pre-denying that he did it?”

Because, of course it would be. Innocent people don’t tend to talk, unprompted, about their innocence. It’s sort of assumed.

To be clear: I am not suggesting Trump has a guilty conscience and that is what’s driving him to tweet about how he could totally pardon himself. I can’t peer into his mind and know that. But what we can say is that it is HIGHLY unusual for a president to get involved in debating whether or not he can pardon himself. Why assert that you have an unquestioned right to pardon yourself if, in the next breath, you make clear you have no plans because you have done nothing wrong?

Here’s my educated guess: Trump is very frustrated by his inability to know what Mueller knows or have any sense of when Mueller might wrap things up. He believes, in his heart of hearts, that this whole probe is the result of Democratic/”deep state” dissatisfaction about losing the 2016 election.

And so, he is wary about what Mueller will find. In order to protect himself from any and every eventuality, Trump — with a major assist from former New York City Mayor Rudy Giuliani — has gone on a PR campaign designed to smear Mueller and his team, painting them as “angry” prosecutors blinded by partisanship.

What Trump — and Giuliani — are clearly hoping to do is invalidate whatever Mueller finds out in the eyes of the President’s base. A biased group has produced a biased report. Big whoop!

Trump’s decision — impulse? — to tweet about his ability to pardon himself is a logical extension of that strategy. We’re not only going to discredit Mueller, we are going to get people used to the idea that if I want to pardon myself, I can. By the time Mueller’s report comes out, I will have repeated the idea that I can pardon myself so many times that if I do it, my base won’t even bat an eye.

As always with Trump and his base, it’s a strategy that very well could work. If they are willing to believe anything he says — and, at this point, it seems they are — than why not believe that, of course, the President is going to pardon himself after he was unfairly maligned by Mueller?

In a strange sort of way, Trump’s tweet this morning makes perfect sense. He’s laying the groundwork to do something unthinkable — and make it seem to his political base like it’s no big deal.

Don’t be fooled. A President of the United States floating the idea of a pardon for himself before a single charge is brought or a single page of the Mueller probe is out is hugely out of step with past practices. Hugely.


(CNN) — Donald Trump and his lawyers are staking out a vision of an unrestrained and all-powerful presidency in a staggeringly audacious defense of his actions related to the Russia probe already shared with special counsel Robert Mueller.

The assertions made by Trump’s former lawyer John Dowd and Jay Sekulow, who remains on his team, in a just-revealed letter to Mueller spell out an expansive definition of presidential authority to explain why Trump should face no legal liability for his actions — including the firing of FBI Director James Comey.

The letter, which a source told CNN Trump reviewed and approved before it was sent in January, includes the caveat, “Of course, the President of the United States is not above the law,” but then makes an argument that implies that he is, in fact, exactly that.

A Monday morning Trump tweet will exacerbate concerns that the commander in chief believes he is not answerable to the law and that he could terminate the Mueller investigation or escape consequences if wrongdoing is unearthed by the probe, which is examining alleged collusion between Trump’s campaign and Russia and whether the President obstructed justice.

“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? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!” Trump wrote.

Comments by Trump’s lead lawyer Rudy Giuliani on Sunday on the question of whether Trump could pardon himself to end the investigation and on the impossibility of a President being indicted also suggest a brazen interpretation of the scope of presidential power.

Sunday’s developments cement a trend evident ever since Trump entered the White House: his notion that presidential power is sweeping and unfettered. In his words and actions, Trump has shown little patience for unwritten norms and customs that have acted to constrain the authority of his office over the last two centuries.

By implication, the letter, published by The New York Times on Saturday, argues that the President is within his rights to shut down an investigation into his own conduct and to pardon associates accused of criminal action while avoiding consequences to himself.

“I think those legal arguments are extreme and they are really ridiculous,” Renato Mariotti, a former federal prosecutor, told CNN’s Ana Cabrera.

“The reason that these positions have never been taken before is that they are very much outside the mainstream,” he added. “These are dangerous views.”

In recent days alone, Trump has offered repeated evidence of his willingness to claim and wield broad presidential power.

He has imposed fierce pressure on the FBI and the Justice Department over the Russia probe, ignoring the firewall that commonly exists between the White House and such agencies to avoid the impression that the administration of justice is politicized.

Last week, Trump pardoned conservative commentator Dinesh D’Souza after bypassing pardon vetting procedures typically conducted by the Department of Justice.

The extraordinarily broad interpretation of presidential authority in the letter raises the question of the motivations of Trump’s lawyers.

“I assume it is part of a strategy that when they actually do act, they will act somewhat short of those claims so people will be relieved that the President didn’t pardon himself,” said CNN political analyst David Gergen, a former adviser to Democratic and Republican presidents. “But at the same time he may do what exactly he really wants to do and that is to pardon a number of people so they won’t flip.”

The arguments of Trump’s lawyers are also likely motivated by a long-term goal of sparing the President the ordeal of testifying under oath, a scenario many of his allies believe would be a disaster given his proclivity not to tell the truth.

Giuliani might have inadvertently tipped his hand when he said on ABC News’ “This Week” that the President should not testify before Mueller because “our recollection keeps changing.”

Outrageous claim

The audacity of the lawyers’ presentation may also be calculated to convince Mueller not to mount a legal effort to compel the President’s testimony — a struggle that could add months to his investigation.

But it is open to question whether a court would accept many of the positions in the letter, which is characterized more by advocacy than demonstrated legal precedents.

For instance, the lawyers argue in a discussion about the case of fired former national security adviser Michael Flynn and the subsequent firing of Comey that a President, by definition, cannot obstruct justice given his position as the nation’s ultimate legal authority.

“The President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired,” the letter argued.

Such a bold assertion of presidential power is highly controversial.

“It’s an outrageous claim, it’s wrong,” said former New Jersey Gov. Chris Christie, who is a Trump ally and former prosecutor.

Many legal scholars dispute the idea that a President cannot obstruct justice. While Trump did have the authority to fire Comey, the question becomes whether he had corrupt intent in doing so — the issue at the center of Mueller’s obstruction investigation.

A Brookings Institution study in October concluded that the President’s authority to fire the head of the FBI in this case was a “red herring.”

“The fact that the president has lawful authority to take a particular course of action does not immunize him if he takes that action with the unlawful intent of obstructing a proceeding for an improper purpose,” the report said.

The notion that a President could wield his own power to end an investigation into himself with impunity would meanwhile appear to contradict the core purpose of the nation’s founders, to ensure that the presidency did not adopt the unfettered authority of the monarchy that it replaced.

‘Self-executing impeachment’

Giuliani’s decision to even discuss the notion that the President could pardon himself also whipped up a storm.

He said on “This Week” that Trump “probably does” have the power to pardon himself, but he insisted the President would not do so and noted troubling political ramifications of any such action.

Preet Bharara, the former US attorney for the Southern District of New York who was fired by Trump, warned on CNN’s “State of the Union” that such a move would be tantamount to “almost self-executing impeachment.”

This is not the first time that the idea of a President pardoning himself has been mooted.

Former President Richard Nixon took steps to examine the question during the Watergate scandal only to see his own Justice Department advise him that he could not do so on the grounds that “no one may be a judge in his own case.”

Nixon encapsulated his view, which is mirrored by Trump’s lawyers in their letter to Mueller, by telling David Frost after he left office, “When the President does it, that means it is not illegal.”

Giuliani also advanced the case that Trump could escape sanction for any actions he takes as President by telling HuffPost that Trump hypothetically could have shot Comey in the Oval Office to end the Russia probe and not face prosecution for it while in office.

The former New York mayor was making a wider point that the proper remedy for presidential wrongdoing is the Constitutionally provided procedure of impeachment.

“If he shot James Comey, he’d be impeached the next day,” Giuliani said to HuffPost. “Impeach him, and then you can do whatever you want to do to him.”

Giuliani did not immediately return CNN’s request for comment on his statement.

In 2000, the Justice Department’s Office of Legal Counsel issued a memo concluding that the job of the President is so important that he has effective immunity from being indicted and criminally prosecuted while in office. The Supreme Court, however, has not definitively resolved the question.

CORRECTION: This story has been updated to reflect the timing of Nixon’s interview with Frost.