Over the weekend, in “Rudy Giuliani: Trump Can ‘Probably’ Pardon Himself“, I brought you my take on recent developments in Donald Trump’s ongoing effort to subvert the special counsel investigation and just otherwise castrate the nation’s top law enforcement agencies and undermine the country’s intelligence community.
His weekend Twitter tirade suggests he is completely incredulous at the notion that he has so far been unable to completely commandeer the organs of the U.S. government and those same tweets betray an almost laughable naivetÃ© with regard to the limits of the powers afforded to a U.S. President.
On Saturday evening, The Times reported that Trump’s lawyers have been dodging a Mueller subpoena for months and on Sunday, Rudy Giuliani went on national television and reiterated something John Dowd said before he resigned about Trump being, for all intents and purposes, above the law.
You might remember when Dowd was forced to fall on his sword for the President after Trump essentially tweeted out an admission to obstructing justice late last year. Part of that harakiri effort involved Dowd saying the following (from Axios’ Mike Allen):
The “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case,” Dowd claims.
Trump’s lawyers are still going with that.
“In a brash assertion of presidential power, the 20-page letter – sent to the special counsel, Robert S. Mueller III, and obtained by The New York Times – contends that the president cannot illegally obstruct any aspect of the investigation into Russia’s election meddling because the Constitution empowers him to, ‘if he wished, terminate the inquiry, or even exercise his power to pardon'”, the Times wrote, in the article linked above.
On Sunday, Giuliani reiterated that if he chose, the President could “probably” pardon himself.
It should go without saying that if this were anyone but Trump, the conspiracy theory blogs and other far-Right portals would be losing their fucking minds trying to communicate how absolutely insane it is that we’re even having this discussion. But because they’ve inexplicably chosen a WWE hall of fame inductee as the historical figure on whose ship they’re willing to sink, they’re going to go ahead and pretend like this is some semblance of normal or justified. Fox is doing the same thing.
Of course it’s not normal and on Sunday, in a scathing Op-Ed for The New York Times, former United States attorney and deputy assistant attorney general Harry Litman wrote the following about the extent to which Trump “thinks he is a king“:
The president believes he is above the law. That’s the takeaway from the confidential 20-page memo sent by President Trump’s lawyers to the special counsel, Robert Mueller, published over the weekend by The Times. And it’s the same sentiment that Rudy Giuliani expressed on Sunday when he suggested that Mr. Trump has the power to pardon himself.
The central claim of the legal memorandum is that it is impossible for the president to illegally obstruct any aspect of the investigation into Russia’s election meddling. That’s because, as president, Mr. Trump has the constitutional power to terminate the inquiry or pardon his way out of it. Therefore – and this is the key and indefensible point – he cannot obstruct justice by exercising this authority “no matter his motivation.”
This 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.
Even granting the contention that Mr. Trump could simply terminate the investigation, it is a non sequitur to argue, as the president’s lawyers do, that as a consequence he cannot obstruct it. Imagine, for example, that the worst version of facts proves true: that Trump fired the F.B.I. director, James Comey, tried to fire Mr. Mueller, constructed a false account of the June 2016 Russia meeting, and tried to force Attorney General Jeff Sessions to reverse his recusal decision that was driven by Justice Department policy, all to protect his own skin and his family’s fortune.
If this were the case, the elements of obstruction – in brief, the interference or attempted interference with an official proceeding, such as a grand jury investigation – would be plainly met. Most important, the president would have acted with corrupt intent as it is well understood under the law.
No tenable account of executive power holds that a president’s purposes in exercising powers accorded under Article II, “to take Care that the Laws be faithfully executed,” have no import. If it were otherwise – if the president had the authority to use his constitutional powers for any reason – it would follow that he could accept a bribe for doing an official act, or, more saliently, extend a pardon to keep a witness from testifying. This would very clearly violate the maxim that the president is not above the law.
If this sounds like legal theorizing, just consider the fact that Mr. Trump’s position is soundly contradicted by the Richard Nixon case. Under Mr. Trump’s view, Nixon would not have been guilty of obstruction for ordering the F.B.I. to stand down on the investigation of the Watergate burglars or paying off the defendants to keep them quiet.
Subsequent investigations into alleged abuses of presidential power – Iran-contra as well as Whitewater – took it as accepted law that the president is capable of obstructing justice.