Trump’s lawyers are trying to muddy up two questions that already have legal opinions behind them. The DOJ determined previously that Nixon couldn’t pardon himself, and there are numerous court rulings that suggest that a president must comply with a subpoena.
Here is a discussion on MSNBC of subpoenas and self-pardons:
Ali Velshi: Chuck, this business about the president being able to pardon himself, there is a DOJ opinion from the Nixon era that says no. But we know the Justice Department in the investigations have been able to subpoena certain things going back quite far into U.S. History. Let’s talk about this. I’ve been away for a couple of weeks. Is it really clear that there’s no ability to subpoena the president?
Former federal prosecutor Chuck Rosenberg: No. In fact, Ali, quite the opposite. First, welcome back. Second, we have some precedent suggests you can subpoena the president. Whether the president can pardon himself or whether Mueller can subpoena the president is through litigation, right. Not through talking heads or advocacy letters. The subpoena question, we come close to answering it in two ways. One, in the Nixon case, in the early ’70s, the supreme court said there is no executive privilege that would protect documents that have been subpoenaed from the president. Many years later, in the Clinton V Jones case, the court said that a president susceptible to being deposed in a case. Neither of those precisely answers the question, but it gives us insight into how a court may think about it. My guess is you can subpoena a president. The president must answer the questions of the grand jury.
In 1974, Acting Assistant Attorney General Mary Lawton wrote:
Trump can’t act as his own judge, so no he can’t pardon himself
This White House’s warped view of presidential power believes that the president has the power to do anything, and is immune from subpoenas and if he gets in trouble, he can pardon himself and make it go away. Neither of these arguments will hold up in court. A bigger problem with Trump’s plan to get out of the Russia scandal is that any presidential pardon of himself would be an act of self-impeachment, since a pardon requires an admission of guilt. If Trump admits that he is guilty, he will be impeached.
There is no legal or constitutional foundation to support Trump’s claim that as president he is both above the law and can do anything that he wants. Trump doesn’t have a legal leg to stand on, and if he tries to make these arguments in court, his presidency will go up in flames.
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Mr. Easley is the founder/managing editor and Senior White House and Congressional correspondent for PoliticusUSA.Jason has a Bachelor’s Degree in Political Science. His graduate work focused on public policy, with a specialization in social reform movements.
Awards and Professional Memberships
Member of the Society of Professional Journalists and The American Political Science Association