Executive Branch

Can a president obstruct justice? Trump says he has the power to pardon himself as experts weigh in

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President Donald Trump/Frederic Legrand - COMEO (Shutterstock.com).

President Donald Trump’s lawyer Rudy Giuliani on Sunday stood by broad assertions of executive power in a memo written in January by two other lawyers for the president. Trump also weighed in, tweeting that he has the absolute right to pardon himself, though he won’t need to do it because he has done nothing wrong.

The memo to special counsel Robert Mueller said the president couldn’t have obstructed justice because he has full authority over federal investigations and could even end the Russia probe, the New York Times reports. The Constitution gives the president power, “if he wished, terminate the inquiry, or even exercise his power to pardon,” the memo said.

The memo also said Trump cannot be compelled to testify in the Russia investigation. It was written in January by Trump’s then-lawyer John Dowd and another Trump lawyer, Jay Sekulow.

“It remains our position,” the memo said, “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.”

The memo also says that, “under our system of government, the president is not readily available to be interviewed.” The memo cites a 1997 case in the U.S. Court of Appeals for the D.C. Circuit, In re Sealed Case, which involved Mike Espy, the former secretary of agriculture for Bill Clinton.

The court ruled that executive privilege applied to the president and to his advisers. Prosecutors who want to overcome the privilege must show the materials sought contain important evidence that isn’t available elsewhere, the appeals court said.

Trump commented in a tweet Monday morning. “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?”

Trump also tweeted that the appointment of the special counsel “is totally UNCONSTITUTIONAL!”

In an interview with the Huffington Post on Sunday, Giuliani said that “in no case” can the president be subpoenaed or indicted, even if he committed murder. The only remedy for a president’s wrongdoing would be impeachment, he said.

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

In television appearances Sunday, Giuliani said Trump “probably” has the power to pardon himself, the Washington Post reports. “He has no intention of pardoning himself, but he probably—not to say he can’t,” Giuliani told ABC.

Harvard law professor Jack Goldsmith told the Times the law is unclear regarding “the intersection between the obstruction statutes and the president exercising his constitutional power to supervise an investigation in the Justice Department.”

Other experts made the same point, while others said the memo went too far. Norm Eisen, the White House ethics lawyer in the Obama administration, said it is absurd to argue that a president can’t be prosecuted for murder. “The foundation of America is that no person is above the law,” he told the Huffington Post. “A president can under extreme circumstances be indicted, but we’re facing extreme circumstances.”

In a Times op-ed, former deputy assistant attorney general Harry Litman said the memo’s “understanding of presidential power is radical and absolutist. It is also unsound and almost certain to be sharply rejected should it ever be proffered in court.”

Litman points to the Paula Jones civil harassment case against President Bill Clinton in which the U.S. Supreme Court said federal courts were not required to stay the proceedings. Litman argues that the same reasoning would apply to a subpoena in a criminal case.

Former acting solicitor general Neal Katyal derided the assertions of power in the memo as “a ludicrous legal theory,” in an interview with the Washington Post. “The idea that a president can’t obstruct justice died with King George III, with a brief attempt at revival by Richard Nixon,” he said.

Arguing for the points made in the memo, George Washington University law professor John Banzhaf said the Constitution suggests the only remedy for presidential wrongdoing is impeachment, the Washington Examiner reports. He also said that “a full and absolute pardon can be issued, even without naming any of the crimes which might have been committed, or waiting until formal charges are brought or even sought.”

ABA Legal Fact Check also weighed in with an analysis of the Paula Jones decision and the 1974 Supreme Court decision ordering then-President Richard Nixon to obey the subpoena of a Watergate special prosecutor.

Though the Supreme Court has never addressed whether a president can pardon himself, the Nixon and Clinton cases are among landmark decisions that focus on the limits of presidential power, according to ABA Legal Fact Check.

“These decisions collectively give the president special considerations during criminal and civil inquiries,” ABA Legal Fact Check says. “But they do not include, as Justice Warren Burger wrote in United States v. Nixon in 1974, an ‘unqualified presidential privilege of immunity from judicial process under all circumstances.’ ”

ABA Legal Fact Check provides information about legal issues that are in the news, according to a press release.

Story updated on June 8 to include information from ABA Legal Fact Check.

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