Trump Calls Special Counsel ‘Unconstitutional’
Posted June 4, 2018 8:58 p.m. EDT
Updated June 4, 2018 9:00 p.m. EDT
WASHINGTON — President Donald Trump declared Monday that the appointment of the special counsel in the Russia investigation was “totally UNCONSTITUTIONAL!” and asserted that he had the power to pardon himself, raising the prospect that he might take extraordinary action to immunize himself from the continuing inquiry.
In a pair of early-morning tweets, Trump suggested that he would not have to pardon himself because he had “done nothing wrong.” But he insisted that “numerous legal scholars” had concluded that he had the absolute right to do so, a claim that vastly overstated the legal thinking on the issue.
In fact, many constitutional experts dispute Trump’s position on his pardon power, an issue for which there has been no definitive ruling.
Trump’s assertion that “numerous legal scholars” believe he could pardon himself ignores the one official opinion on the subject. In August 1974, just days before former President Richard M. Nixon resigned, the acting head of the Justice Department’s Office of Legal Counsel, Mary C. Lawton, said in a memorandum that “it would seem” that Nixon could not pardon himself.
She wrote that such a pardon would appear to violate “the fundamental rule that no one may be a judge in his own case.” But she did not explain how that principle would limit the constitutional power of the president to pardon.
Trump also did not elaborate in the tweets about the legal basis for his claim that the appointment of Robert Mueller III, the special counsel in the Russia case, was unconstitutional. In that tweet, he insisted that “we play the game because I, unlike the Democrats, have done nothing wrong!”
Confronted with Trump’s tweets, senators from both parties reiterated support for the special counsel investigation and questioned the basis for Trump’s assertions. Democrats were equally eager to blast his claims of the authority to pardon himself, comparing his Twitter pronouncements to the monarchical origins of the American Revolution.
“No president has the power to pardon himself or herself, if they did the presidency would function above and outside the law,” said Sen. Chuck Schumer, D-N.Y., the minority leader, on the Senate floor. “If a president can pardon himself, then it’s virtually a monarchy, as far as the president is concerned.”
Republicans were more reticent, but made clear that any attempt to shield himself from the force of the law would be politically dangerous for Trump.
“Politically, it would be a disaster,” said Sen. Lindsey Graham, R-S.C., who as a House member helped prosecute the impeachment case against Clinton over obstruction of justice.
Sen. Chuck Grassley, R-Iowa, chairman of the Senate Judiciary Committee, told reporters that “if I were president of the United States and I had a lawyer that told me I could pardon myself, I think I would hire a new lawyer.” For many months after Mueller’s appointment in 2017, Trump avoided directly challenging the special counsel. His lawyers at the time argued that the best way to bring the investigation to an end was to cooperate fully and avoid public criticism.
But that strategy changed after Trump overhauled his legal team, and in recent weeks, the president and his new lawyers have become openly dismissive of Mueller and his team of prosecutors.
Still, Monday’s tweets by the president went further than before in trying to undermine the legal basis for the investigation into whether people on Trump’s campaign colluded with Russian meddling during the election, and whether anyone in the administration tried to cover up their activities.
The president’s assertions came in tweets just a day after Rudy Giuliani, one of his lawyers, told HuffPost that Trump was essentially immune from prosecution while in office, and could have even shot James Comey, the former FBI director, without risking indictment while he was president.
Giuliani also said over the weekend that the president “probably” had the power to pardon himself, but said on NBC’s “Meet the Press” that it would be “unthinkable” for him to do so.
Doing so, Giuliani said, would “lead to probably an immediate impeachment.”
But he “has no need to do that,” Giuliani added. “He didn’t do anything wrong.”
Trump’s statement about pardons on Twitter went further than Giuliani and raised the prospect that the president might try to test the limits of his pardon power if Mueller tried to indict him for obstruction of justice in the case. Mueller has indicated he does not plan to seek an indictment, according to Giuliani.
In his tweet, Trump again called the investigation a “never ending Witch Hunt” and said it was being led by “13 very Angry and Conflicted Democrats.”
The comments by Trump and Giuliani about the legal limits of presidential power follow a report in The New York Times that the president’s lawyers had written a 20-page memorandum in January arguing that Trump could “if he wished, terminate the inquiry, or even exercise his power to pardon.”
In the memo, sent to Mueller’s office in January, Trump’s legal team said that the president could not, by definition, illegally obstruct any part of the Russia investigation because the Constitution gave him the power to end it in the first place. The president also tweeted Monday morning about trade, asserting that Canada has “all sorts of trade barriers” on U.S. agricultural products. “Not acceptable,” he said. He also bragged about his accomplishments at the 500-day mark in office.
Shortly after, the White House echoed that sentiment with an email to reporters titled “President Donald J. Trump’s 500 Days of American Greatness.”