Monday June 4, 2018
Rudolph W. Giuliani was an ardent supporter of President Trump during the 2016 campaign, and the former New York mayor was considered for the post of attorney general. (Mike Segar/Reuters)
President Trump’s attorney Rudolph W. Giuliani publicly pressed Trump’s expansive view of executive power this weekend, arguing on two Sunday TV shows that the president probably has the sweeping constitutional authority to pardon even himself.
“He probably does,” Giuliani said, when asked on ABC’s “This Week” if Trump has the ability to pardon himself. “He has no intention of pardoning himself, but he probably — not to say he can’t.”
Giuliani’s comments came less than 24 hours after the revelation Saturday that the president’s legal team argued in a secret January memo to special counsel Robert S. Mueller III that Trump could not have obstructed an FBI probe into Russian interference in the 2016 election because, as president, he has total control over all federal investigations.
The 20-page letter, written before Giuliani joined Trump’s legal team by two of the president’s lawyers at the time and first reported by the New York Times, was hand delivered to Mueller’s office, and also argues that the president cannot be compelled to testify.
But while arguing that the president has the theoretical ability to pardon himself, Giuliani and other Trump allies on Sunday nonetheless rejected the reality of such a brash move — in part because of the political backlash they said could lead to Trump’s impeachment.
On NBC’s “Meet the Press,” for instance, Giuliani framed the pardon question as purely hypothetical and politically implausible. “It’s not going to happen. It’s a hypothetical point,” he told host Chuck Todd.
He went on to describe such a move as “unthinkable,” and said it would probably lead immediately to impeachment.
Former New Jersey Gov. Chris Christie, who is in regular touch with the president, was even more blunt than Giuliani, appearing on the ABC news program shortly after Trump’s attorney.
“Listen, there’s no way that’ll happen, and the reason it won’t is because then it becomes a political problem,” Christie said when asked about the notion that Trump might pardon himself. “If the president were to pardon himself, he’ll get impeached.”
The reality, however, is more nebulous. The Republican Party, which currently controls Congress, has so far failed to assert any clear red line over which Trump could walk that would prompt them to take action against their party’s leader. And Republican lawmakers have remained largely silent as Trump has repeatedly gone to war with his Justice Department and the FBI, intentionally and routinely degrading public trust in the institutions tasked with holding him accountable for misbehavior.
On Sunday, House Majority Leader Kevin McCarthy (R-Calif.), who is considered the front-runner to become the next House speaker, seemed to argue the opposite of Giuliani and Christie, saying the key focus of Mueller’s probe is, simply, whether the Trump campaign and Russia had colluded during the 2016 election.
“What I was concerned most about, like most Americans, was there any collusion?” McCarthy said. “There was no collusion.”
He concluded: “Let them walk through their investigation. But I think, if there is no collusion, it’s time to wind this down.”
In the letter to Mueller, Trump’s lawyers at the time — John Dowd and Jay Sekulow — push an expansive view of presidential power. They argue that Trump has authority to “order the termination of an investigation by the Justice Department or FBI at any time and for any reason,” and also that as the nation’s chief law enforcement officer, the president could “even exercise his power to pardon if he so desired.”
“The intent behind the letter is rather obvious — this is position bargaining,” said Jonathan Turley, a constitutional law professor at George Washington University Law School. “But the position laid out is not as strong as claimed. The letter, for example, suggests that the president can refuse to comply with a subpoena. The existing case law favors the special counsel in forcing the president to appear.”
The assertion of broad presidential powers — including the ability to shut down an investigation or self-pardon — has been raised by Trump’s legal team as part of a protracted negotiation with Mueller about Trump’s possible testimony.
Trump’s lawyers appear determined to limit the scope of questions if the president does agree to testify. Giuliani said Sunday that it remains an open question whether the president will sit down with Mueller and his investigators as they work to conclude the investigation. He added that Trump wants to testify but that he and his team are leaning against such action.
An agreement in advance could mean that Mueller wouldn’t need to issue a subpoena. But if no agreement is reached, and Mueller proceeds with a subpoena, the president could challenge the constitutionality of that move in court — a legal tangle that Giuliani said could take a year to resolve.
On “Fox News Sunday,” Corey Lewandowski, Trump’s first campaign manager and now an unofficial White House adviser, portrayed Trump as a cooperative witness, albeit one who will participate in an interview with Mueller only under certain favorable conditions.
“What Giuliani and his team are saying is, you don't need to [go the] subpoena route, but if you do, we will fight it in court,” Lewandowski said. “The president has been very clear. He has offered to sit down with the Mueller investigators, but he has said and the Giuliani team has said this, they want to understand what the scope of questions are going to be before they sit down and do that.”
The president and his allies have long privately played out the strategy that burst into public view this weekend. As early as last summer, for instance, as Mueller’s probe dragged on, the president began asking advisers about his power to pardon aides, family members and even himself. His lawyers at the time discussed his pardoning powers as well.
The question of whether a president can self-pardon has long been a “parlor game” among constitutional scholars, Turley said. There’s no precedent for it and thus no case law. Turley said he believes a president can pardon himself — but added that would not protect a president from impeachment.
“A president cannot pardon out of an impeachment,” Turley said. Congress, he said, “can use his pardon as an abuse of his office.”
[Trump’s pardon-palooza: Presidents and the constitutional power to pardon]
Ethan Leib, a professor at Fordham Law School, said he believes a president can’t self-pardon because that violates the oath of office — in which the president swears to “faithfully execute” his duties — and the stipulation in Article II of the Constitution that the president “shall take care that the laws be faithfully executed.”
“The Constitution is clearly prohibiting the president from engaging in self-dealing,” Leib said.
Giuliani also offered another, inadvertent window into his hesitancy to let Trump testify, when fielding questions on a different topic: why the White House and Trump’s lawyers first — and falsely — denied a Washington Post report last July explaining that the president had dictated the misleading statement his oldest son, Donald Trump Jr., initially released to explain away his campaign meeting at Trump Tower with a Russian lawyer promising dirt on Hillary Clinton.
At the time, Sekulow and White House press secretary Sarah Huckabee Sanders claimed Trump had not, in fact, dictated that statement. But the letter that Dowd and Sekulow himself sent to Mueller states the opposite — writing that “the president dictated a short but accurate response” on behalf of his son.
Pressed on “This Week” about the shifting explanations, Giuliani said, “I mean, this is the reason you don’t let the president testify.”
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