Donald Trump’s self-impeachment
In a memo from January of this year, Donald J. Trump’s lawyers Jay Sekulow and John Dowd delivered a memo to Special Counsel Robert Mueller outlining issues purportedly discussed with Mueller. The memo also expansively outlined the president’s pardon powers, including an argument the president could pardon himself.
Early on Monday, Trump followed up the release of the memo (he claims Mueller’s team leaked it, but given his rants and tweets, we can rather safely identify which side released the memo) with this tweet: “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? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!”
Most Constitutional scholars disagree with his analysis. The president is not above the law, no citizen is, and the protections and thinking of the way the checks and balances were set up in the Constitution make such arguments of the president and his “legal scholars” preposterous on their face. The United States Department of Justice includes a document, “Presidential or Legislative Pardon of the President,” that is from the Office of Legal Counsel dated August 5, 1974. The memo begins: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”
The memo then discussed potential legislative pardons. The memo has never been tested, although scholars have identified that the pardon power has a limitation that would seem to prevent a president from pardoning himself in the event of impeachment. We will see if the question becomes one that the courts must sort out. But even some of Trump’s strong supporters and allies have suggested that if he were to attempt a self-pardon, it likely would trigger impeachment proceedings.
Daniel is a lawyer writing and teaching about SCOTUS, and is the author of the book “The Chief Justices” about the SCOTUS as seen through the center seat.