U.S. President Donald Trump claims he has the “absolute right” to pardon himself, but an attempt to actually do so would force a showdown over an untested part of the constitution and the power of the presidency.
Citing “numerous legal scholars,” Trump declared on Twitter Monday that he can legally self-pardon, even though he says he has done nothing wrong.
The assertion came amid furious debate about the powers of the presidency over the weekend.
The New York Times reported on Saturday that Trump’s lawyers sent a letter to special counsel Robert Mueller, arguing that Trump could not be forced to testify in the Russia probe, and that the president can pardon whomever he wishes.
The White House team’s case rests upon a simple question: Is the president subject to the law, or is he the law?
Why would Trump need a pardon?
Mueller’s team has been pressing for a sit-down interview with Trump to ask him about a number of areas of the investigation, including possible collusion with Russia to influence the outcome of the 2016 presidential election, and potential obstruction of justice with the firing of then-FBI director James Comey early last year.
Trump’s team argues he hasn’t committed any crimes and that he has already co-operated with Mueller by providing him with thousands of pages of documents and access to top officials.
The White House has also firmly refused a sit-down interview unless it is done so under conditions it deems “fair,” prompting talk that Mueller might summon Trump through a grand jury subpoena.
Many have suggested that an interview with Mueller would expose Trump to further legal trouble, as he is known to make false statements and contradictory claims.
Lying to the FBI is a criminal offence, and could become grounds for an obstruction of justice charge.
The president himself continues to label the investigation a “witch hunt,” and claimed on Monday that the special counsel is “totally UNCONSTITUTIONAL!”
Can he do it?
He can certainly try to pardon himself, but he may not need to.
Trump’s legal team argues he can’t be charged with obstructing justice because he is the head of the U.S. legal system, and he can’t obstruct himself. They also contend that he can’t be compelled to testify in the Russia probe and that he can pardon anyone he wants — including himself — because the constitution doesn’t say he can’t.
In other words, they say Trump is immune from prosecution until he is impeached. And if that argument doesn’t fly, he could just pardon himself anyway.
“In no case can he be subpoenaed or indicted. I don’t know how you can indict while he is in office, no matter what it is,” Trump’s lawyer, Rudy Giuliani, told The Huffington Post on Sunday.
Trump’s legal team made that case in a 20-page letter to special counsel Robert Mueller III in January, which was obtained by the New York Times and published on Saturday.
The letter, which was penned by then-White House lawyer John Dowd and Trump lawyer Jay Sekulow, argues that Trump could not obstruct justice and cannot be compelled by a subpoena to sit for an interview with Mueller.
“It remains our position that 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,” they wrote.
“He could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired,” they added.
WATCH BELOW: Giuliani says president can probably pardon himself
Giuliani told ABC’s Meet the Press on Sunday that Trump “probably does” have the power to pardon himself, because the constitution “doesn’t say he can’t.” However, Giuliani said the president has no intention of doing so at this point because it would touch off a massive legal battle.
“Pardoning himself would be unthinkable and probably lead to immediate impeachment,” Giuliani said.
Giuliani also suggested to HuffPost that Trump could have hypothetically shot former FBI director James Comey if he wanted to, and would have avoided immediate indictment.
“He’d be impeached the next day,” Giuliani said. “Impeach him, and then you can do whatever you want to do to him.”
Former presidents Bill Clinton and Richard Nixon did not attempt to pardon themselves during impeachment proceedings in 1998 and 1974, respectively.
However, Nixon’s successor, Gerald Ford, did issue him a “full, free and absolute pardon” for any crimes he committed or may have committed during his time in office.
The case against a self-pardon
“I, Donald John Trump, do solemnly swear that I will faithfully execute the office of the President of the United States, and will to the best of my ability preserve, protect and defend the constitution of the United States.”
Those were the words Trump uttered at his inauguration on Jan. 20, 2017, and they’re the words some say prevent him from exercising a pardon for his own benefit.
The argument against Trump pardoning himself stems from the promise to “faithfully” execute his office as president. Some legal scholars say Trump using the pardon power for himself would constitute an act of bad faith.
WATCH: Kellyanne Conway fires back when asked why President Donald Trump “thinks he’s above the law?” in relation to recent presidential pardons
“It shouldn’t be that big of a leap, if Trump pardons himself, to see that as self-dealing,” Jed Shugerman, a professor of law at Fordham University, told Global News last week. Shugerman added that Trump would also face intense criticism if he pardoned anyone in his inner circle, including his family members, for potential crimes related to the special counsel investigation.
“It seems self-evident that there would be a corrupt, self-protective purpose to those pardons,” he said.
Shugerman also pointed out that Trump has already used his power to pardon several individuals convicted on the same charges laid by Mueller’s team, including obstruction of justice, making false statements and campaign finance violations.
“It’s almost like a lawyer gave President Trump a list of potential crimes he or his family might be convicted of, and he went down a list to pardon people who were convicted of those same crimes,” Shugerman said.
Laurence Tribe, a constitutional law professor at Harvard University, described Trump’s stance as “ludicrous” and a “legal fantasy.”
— With files from The Associated Press and Reuters