US President Donald Trump has concluded that “...I have the absolute right to PARDON myself,….” It is a legal paradox built on circular reasoning and corrupt impulses that Trump’s legal team helped establish via a secret letter/memo to Special Counsel Robert S. Mueller in late January of 2018. According to the legal rationales of his lawyers, the President cannot be held legally culpable for any of his actions, unless he is impeached, because he has the power to issue pardons and the authority as the head of the Justice Department to shutdown investigations, among other rationales used to support absolute Presidential powers. Their justification is, however, just that. President Trump wanted a legal justification to conclude he was above investigation, prosecution, and punitive action, so he compelled his lawyers to create one then they found a handful of legal arguments and precedents to support that conclusion.
Other Presidents and political figures have, of course, commissioned similar legal memos, mainly to establish some form of a legal shield, but they are not legal decrees. They are simply academic exercises created by professionals to appear as though they hold legal weight. It is somewhat equivalent to a lawyer pretending to be a Supreme Court Justice. It is analogous to copying and pasting random words from the Bible to justify the moral standing of someone who does as he pleases. With that in mind, the unfortunate truth about the justice system is the willingness to prosecute a criminal act and the legal arguments used to hold someone to the letter of the law often play a greater role in what is considered legal than actual laws and the US Constitution.
In other words, unless someone holds Trump accountable for any wrongdoing or his legal rationales are successfully challenged in court, the proclamations of Trump and his legal team are actionable until proven illegal. Until Trump acts on his rationales and he is impeached, or sued, for his actions, his Administration can make all of the legal claims they want to make. They can even act on their assumptions. Worse yet, an unsuccessful legal challenge, which fails to utilize effective counterarguments or move a Court sympathetic to the President, might establish the validity of a illegitimate legal argument, thereby authorizing members of the Executive Branch to act with impunity. Should the Supreme Court, or a lower court, determine the President is only legally culpable once he has left office or been impeached, assuming he does not actually have the power to proactively issue himself a blanket pardon, justice would depend solely on politics, which is the very opposite of what justice is and what America’s Founding Fathers wanted when they offered the President a layer of protection from politically-motivated prosecutions.
Clearly, Trump’s goal is to shield himself from any and all legal consequences for anything he might say or do wrong. As the President of the United States, however, his stances hold weight. The precedents he is establishing as a President will be embraced by his successors and public officials following his lead. Through his absolute contempt for justice, Trump is choosing to undermine the legitimacy of the US justice system, which erodes the faith of the American People in justice and emboldens authoritarian leaders around the world who also refuse to be held culpable for their wrongdoings. On the other hand, legal arguments, legal precedents, case history, and even laws are not the ultimate determinant of what the President can do or what is legal. At anytime, any given legal argument, legal precedent, court case, or law can be overridden should it be determined that it runs afoul of the US Constitution. The US Constitution is what determines whether a legal argument is valid or invalid.
According to the US Constitution, “…he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment….” Obviously, the President has the power, not the right, to issue pardons. He does not necessarily have the absolute power nor the power to pardon himself before or after an impeachment. As it also says, …“[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors….” it is clear the Founding Fathers wanted the President held accountable for any crimes he may have committed. The Constitution also says the US House of Representatives has the sole power to start impeachment proceedings and the US Senate has the power to try all impeachments, which means a President is likely protected from legal proceeding until he leaves Office or political leaders take action.
As a legal framework, the US Constitution leaves a great deal of room for interpretation. This was done to empower future Congresses to address situations as they arose. Unfortunately, Congress has not been particularly proactive while Donald Trump is someone who likes to push the limits, thus the legal framework for curtailing the President’s behavior is likely insufficient. Under Trump, it is being tested, thereby pressuring the Courts and the Legislative Branch to address questions that have not been answered. President Trump, however, may want to recognize the Constitution only explicitly authorizes him to do a handful of things. The primary responsibility of the Executive Branch is to execute the decrees of the Legislative Branch, i.e. his power is constrained by what Congress has authorized him to do. He might also want to recognize “…[j]udgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law….”
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