President Donald Trump is already in danger of impeachment due to his violation of the Emoluments Clause of the U.S. Constitution, but more serious trouble could be in store given the multiple investigations into collusion between Trump's associates and the Russians. In this unprecedented climate, many are wondering if Trump will have the power to pardon himself.
Given the net that is closing in on Russia's involvement in electing now-President Donald Trump, and possible collusion between Trump associates and the Russian government, it is natural that people might be curious if the presidential pardon power could be used to self-pardon.
And as I discovered Monday morning, that curiosity is already being reflected in Google's search suggestions:
Wow. I typed in "can a ", look at the 4th suggestion. pic.twitter.com/bVfTUyjFJR
— Tommy Christopher (@tommyxtopher) January 23, 2017
According to Google Trends, searches for the term "pardon" spiked to 100 on a scale of 1-100 on January 18, just before Trump's inauguration, but also just after President Obama's last round of presidential pardons. However, the term "Trump pardon" spiked to 80 on Inauguration Day.
SECTION 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
There is nothing in the Constitution to prevent Trump from pardoning himself, although he cannot shield himself from impeachment. The expansiveness of Trump's ability to self-pardon is vast, if then-President Gerald Ford's pardon of Richard Nixon is any indication. Ford's pardon was not specific to a particular accusation, but covered the entirety of Nixon's presidency:
Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.
A Trump self-pardon would be vulnerable to legal challenge, but the current and likely future state of the Supreme Court looks pretty good for him.
Prominent Trump supporter Newt Gingrich has already advocated for a Trump self-pardon, and aside from the investigations roiling over possible collusion with Russia, members of Trump's team have been making some suspiciously self-insulating statements. Then-Vice President-elect Mike Pence took pains to isolate himself from knowledge of collusion in a recent interview, and over the weekend, White House counselor Kellyanne Conway made a similarly suspicious remark, and conspicuously left open the possibility of some sort of interference (emphasis mine):
STEPHANOPOULOS: ...intelligence agencies and the FBI are now investigating possible contacts between Trump associates and the Russians during the campaign. Will President Trump pledge to allow those investigations to go forward without any interference from anyone in the White House?
CONWAY: Well, our executive branch does not believe in interfering with what the legislative branch chooses to do. We believe in federalism. I would say that —
STEPHANOPOULOS: But these are — these are — these are in the — in the government. These are the agencies of the government of your administration, who are now investigating.
CONWAY: Well, same thing. We're not going to comment on that if they feel that they need to do that. But I will say that these media reports struck us as brand-new information. We had no idea what's going on. I was the campaign manager, contemporaneous with some of those events. And I assure you that I wasn't talking to Moscow. I was talking to people in Macomb County, Michigan, which is how the president became the president.
STEPHANOPOULOS: So you’re confident nothing will come of this investigation, but you’re saying the White House will not interfere with it in any way?
Notably, Conway does not say that no one in Trump's campaign spoke with Russia; she claims only that she did not speak with them. More to the point, and chillingly, despite Stephanopoulos' generous interpretation, Conway did not promise not to interfere with the agencies. She singled out the legislative branch, which is immune to the pardon clause. When pressed on the agency investigations, she said "We're not going to comment on that."
Unfortunately, there is not much to be done at this point, other than to learn lessons like the one The New York Times has just learned. The time to hold Trump accountable was before he assumed the power to legally absolve himself from that accountability.