The headline is a question that occurred to me last night, reading that story about the White House chattering about pardons. When I tossed it out on Twitter, the range of replies that came back ran from 30-40 percent to 80 percent and up. I’m on the low end: I think it’d probably split 40/30/30 between support/oppose/not sure, with roughly a third of the party torn between partisan loyalty and alarming red-font headlines about Trump igniting a constitutional crisis. Not coincidentally, 40/30/30 is also about equal to the spread we saw among GOPers when they were asked whether Don Jr’s meeting with the Russian lawyer was appropriate or not. Clearly the right is a bit more tentative lately about Russiagate.
It’s easy for Republicans to say what Don Jr did was inappropriate, though. They didn’t vote for him and what happens to him legally has no bearing on their lives. Don Sr is a different story. Professional pollster Kristen Soltis Anderson thinks support for a Trump self-pardon would start off fragile on the right so long as it remains hypothetical — but once Trump actually did it and his critics brought down the hammer, the wagons would be duly circled.
Probably right. Currently 73% of GOP views Trump as "cooperating" with investigation. 54% say he's acted "fitting and proper way" as POTUS.
— Kristen S Anderson (@KSoltisAnderson) July 21, 2017
Needless to say, much depends on the legal posture when the pardon is issued. If Trump were to issue a slew of pardons preemptively with himself included in the name of “moving on” from Russiagate, many Republicans would back that. If he pardoned himself only after evidence had been leaked of some sort of wrongdoing, that’s a much harder call. By that logic, if a self-pardon (or a pardon for anyone else, e.g., Mike Flynn or Jared Kushner) is on the table, the sooner Trump does it, the better it is for him politically. Even if Mueller’s office has compiled evidence of crimes and begins leaking post-pardon, Trump can shrug, say that he had no idea, and declare the matter over on grounds that what’s done is done. Most of the GOP will back him up for partisan reasons. Once evidence of a crime is made public via the media, though, Trump’s in a terrible spot. Which makes me wonder if Mueller’s office is planning to head Trump off at the pass by leaking what it has ASAP, assuming it hasn’t started already. The more suspicious Trump and his associates look to voters, the more dicey a pardon becomes. If Mueller’s serious about seeing this investigation through to the end, it may be in his interest to quietly and regularly publicize what he has.
As for the constitutional question of whether a president could lawfully pardon himself, Ed touched on it briefly this morning. If it somehow came before the Court, I think they’d rule against Trump. It’s a hard nut to crack, though. On the one hand, the president’s pardon power is plenary, but on the other a Constitution of limited powers can’t be reconciled with the head of one branch granting himself carte blanche to break the law. Force SCOTUS to choose between those two outcomes and I suspect they’d choose door number two as a matter of basic psychology: Everyone outside of Trump’s core base would be incensed at a self-pardon, viewing it as a legal abomination and a real-life “get out of jail free” card. If the Court were to punt on grounds that it’s a “political question” to be settled between Trump, Congress, and the electorate, much of the public would view it as a gross dereliction of duty — and remember, John Roberts cares a lot about Americans’ respect for the Court, which probably helps explain his infamous ObamaCare vote in 2012. The Court might also be influenced by the fact that Congress is controlled by the president’s party and has lost institutional power to the executive over the past several decades. It’s one thing for SCOTUS to declare that Congress and impeachment are the proper adjudicators in a case of self-pardon when Congress has showed that it’s willing and able to check the president. When it hasn’t, the Court may feel obliged to step up and fill that role instead.
Realistically, though, how would a self-pardon come before the Court? Assume Mueller indicts Trump and Trump duly pardons himself, or vice versa — Trump pardons himself preemptively and then Mueller, defiant, chooses to bring an indictment anyway and test whether the courts will quash it or not. Without Mueller taking some step to charge the president criminally, it’s hard to see how this issue would land before a judge. And if he did take a step to charge the president, that might be quashed anyway on grounds that the president can’t be prosecuted for a crime (by a federal prosecutor, at least) while he’s still in office. That’s an open question constitutionally too, above and apart from the issue of a self-pardon: Can the head of the executive branch, the prosecutor-in-chief, be prosecuted by the executive branch if he doesn’t want to be? (The Clinton v. Jones ruling held that a sitting president could be sued civilly for actions taken before he took office and United States v. Nixon held that executive privilege couldn’t defeat a subpoena in a criminal case, but whether the president himself can be charged and tried is unsettled.) If the Court held, per the “unitary executive” theory of Article II power, that the president can’t be indicted while he’s in office, then the question about self-pardoning would be moot. It would arise only if Trump pardoned himself and then the DOJ tried to prosecute him after he left office. And no one believes that would happen.
For what it’s worth, the Nixon White House’s Office of Legal Counsel considered the lawfulness of a self-pardon during the dark days of Watergate. Verdict: Nope. “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”