This week the news-organs are saturated with clips of smarty-pants reporters heckling Press Secretary Sarah Huckabee Sanders at a White House press-briefing about Mr. Trump “pardoning himself.” Ms. Sanders replied that the president has no need to do this, as he has done nothing wrong. But this didn’t satisfy the reporters, who desperately wanted Ms. Sanders to admit that the president does believe he can pardon himself, so they can trumpet the headline that Mr. Trump thinks he is “above the law.”
Scores of talking heads, as well as Mr. Trump’s consigliere, Rudi Giuliani, have gravely weighed in on whether the president can pardon himself, but none in my hearing has addressed the operative question: “pardon himself from what?” Only when this key question has been asked and answered can the issue of presidential self-pardon be properly placed in context.
The dream of wet-behind-the-ears reporters is the delicious prospect of Mr. Trump trying to evade legal action when he’s arrested, indicted, and convicted of a crime – all of which they consider quite likely. Probably a majority of media people believe Special Prosecutor Robert Mueller will charge Mr. Trump with obstruction of justice or some related crime, even if he can’t find evidence that the president “colluded” with Russian agents to influence the 2016 election. One way or another, left-leaning media-hounds expect Mr. Mueller to bring charges that will destroy the hated upstart who stole the presidency from Hillary Clinton.
The problem is that no such scenario – however fondly hoped-for – can happen. No law-enforcement official, at any level, can subpoena, arrest, indict, or try a president. If that were possible, legions of county sheriffs, chiefs of police, and state attorneys general all over the country – each looking for his “fifteen minutes of fame” – would be issuing arrest warrants, impaneling grand juries, and stopping the presidential limo at roadblocks.
Once every schoolboy knew that the president couldn’t be harassed in this way, but now, not so much. Simple ignorance lets reporters and politicians fantasize about Mr. Trump being “frog-marched” out of the White House in irons. But short of an actual coup d’etat, it’s not possible.
It can’t happen because the president is the country’s top law-enforcement official. No law-enforcement agent, at any level, is above him in legal power and authority. All agents and officials in the Department of Justice are employees of the Executive Branch, which reports to the president, as do all cabinet departments. In the Trump era, media-savants and opposition pols have tried mightily to define the Special Counsel as legally superior to the president, but the idea won’t fly. Mr. Mueller was appointed to his post by Rod Rosenstein, a DoJ official who is Mr. Trump’s subordinate. How can he appoint a special counsel who outranks the president? This level of magic would amaze even The Great Houdini.
Should a significant body of government officials – a court, perhaps – decide that a special counsel does have such power, a true Constitutional crisis would erupt. And should that view somehow gain traction and prevail, our entire system of Constitutional government would collapse in a pile of rubble. Under the threat that an agent of the Executive Branch might appoint a counsel who has law-enforcement power over the chief executive of the country, no president would be able to govern, and we should descend into anarchy.
Those who imagine that a president’s immunity from arrest and prosecution gives him absolute power have either not read the Constitution or else dislike what it plainly says. The power to indict (i.e., impeach) a president belongs only to the House of Representatives, and the power to convict a president for “high crimes and misdemeanors” is the Senate’s. As the Constitution does not specify what such offenses might be, the Congress is free to decide what they are in any given instance. The House can impeach on any charge by a simple majority-vote, but the Senate can convict only by a 2/3 majority-vote. Only then can a president be evicted from office. The bar is set very high, as our Founders intended.
Two presidents have been impeached in our 229-year history, but both avoided a fatal 2/3-vote in the Senate. Andrew Johnson came closest to the brink in 1868 when he escaped conviction by a single senator’s vote for disobeying the Tenure of Office Act. That law, which Congress had passed over Mr. Johnson’s veto, prohibited him from replacing any of Abraham Lincoln’s cabinet secretaries. When Mr. Johnson fired Secretary of War Edwin Stanton, the House passed an article of impeachment, and the Senate tried the president on that charge. After the Senate failed to convict, the Supreme Court ruled the Tenure of Office Act unconstitutional. (Had they acted sooner, all the impeachment “fun” could have been avoided.)
In 1998, President Bill Clinton was impeached for perjury and jury-tampering in connection with a lawsuit brought by former Arkansas state-employee Paula Jones, who charged that Mr. Clinton had sexually harassed her while he was governor. Liberal media ambitiously pounded the narrative that the issue was only “about sex,” even though any ordinary citizen would have gotten jail-time if guilty of the actual charges. Ultimately, Mr. Clinton skated on both impeachment articles when the Senate didn’t reach the required 2/3-majority. Every Democrat senator voted to acquit on both articles. Several Republican senators also voted for acquittal, stating that they believed a conviction would harm the country. (After he left office, Mr. Clinton was disbarred by an Arkansas judge from practicing law for five years.)
Many Democrats believe that Richard Nixon would have been impeached, convicted, and sent packing, had he hung on through the Watergate-scandal. But Mr. Nixon cheated them of that “victory” by resigning. I doubt that his expulsion would have happened, but it undoubtedly would have hurt the country, if it had. Even so, the trauma of Mr. Nixon’s resignation paralyzed the nation and kept President Ford from acting when North Vietnamese troops violated the 1973 truce, invaded South Vietnam, and overran the country in the spring of 1975. Diehard Democrats consider the Nixon/Watergate-affair one of their greatest triumphs, but it was a complete mess from start to finish.
To close the loop on the self-pardon question: the correct answer is obviously “none of the above.” Since the president can’t be charged by legal officers at any level, he has no need to pardon himself. He can be indicted – i.e., “impeached” – and ultimately convicted only by the Congress. In such case there is no Constitutional provision for a self-pardon.
This should close the pardon-argument, but nothing can be settled because the partisans who seek to destroy Donald Trump are so deranged by hatred that they seem willing to see the country hurt if that will help them achieve their objective. They depict themselves as patriots who are merely trying to “help” the country, but on this score they are completely deluded. Believing you can help the country by hurting it is a total non sequitur reminiscent of “We had to destroy the town in order to save it…”
An important adhesive that has held our republic together is an implicit “compact” between all political factions that:
- Each will accept the results of an election; and
- All will close ranks behind every duly elected president to unify and support the nation.
Well within my lifetime statesmen of both parties honored that compact. But if either party has now abandoned it, then we are headed for some very turbulent and uncharted waters.
The key to our survival as a nation was expressed perfectly by the great statesman John Adams. I cite his 1798 declaration as food for my readers’ reflection and prayer:
“…we have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution is designed only for a moral and religious people. It is wholly inadequate to the government of any other.”