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Defying the Odds

Defying the Odds
New book about the 2016 election.

Sunday, July 23, 2017

Pardon? Indictment?

In  Defying the Oddswe discuss Russian involvement in the 2016 campaign.

President Trump has consulted his legal advisers about the possibility of pre-emptively pardoning his associates — and possibly even himself — to undermine the Justice Department’s Russia investigation, The Washington Post reported Thursday night. But on Friday, John Dowd, Mr. Trump’s new personal lawyer, denied to BuzzFeed that any such discussions had taken place.
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The only limitation explicitly stated in the Constitution is a ban on using a pardon to stop an impeachment proceeding in Congress, and the only obvious implicit limitation is that he cannot pardon offenses under state law.
But some legal scholars think a president cannot pardon himself, either, because it would be a conflict of interest.

In August 1974, four days before Mr. Nixon resigned, Mary C. Lawton, then the acting head of the Justice Department’s Office of Legal Counsel, issued a terse legal opinion stating that “it would seem” that Mr. Nixon could not pardon himself “under the fundamental rule that no one may be a judge in his own case.”

But she did not explain what transformed that principle into an unwritten legal limit on the power the Constitution bestows on presidents.

Other legal specialists have come out the other way. In a 1998 House Judiciary Committee hearing about the proposed impeachment of Mr. Clinton, for example, Representative Bob Goodlatte, a Virginia Republican who is now the chairman of that panel, stated, “The prevailing opinion is that the president can pardon himself.”

There is no definitive answer because no president has ever tried to pardon himself and then been prosecuted, which would give courts a chance to weigh in. If Mr. Trump did purport to pardon himself, and was later indicted anyway, it could create an opportunity for the Supreme Court to resolve the question.
Charlie Savage reports at The New York Times:
A newfound memo from Kenneth W. Starr’s independent counsel investigation into President Bill Clinton sheds fresh light on a constitutional puzzle that is taking on mounting significance amid the Trump-Russia inquiry: Can a sitting president be indicted?
The 56-page memo, locked in the National Archives for nearly two decades and obtained by The New York Times under the Freedom of Information Act, amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.
“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”