Note: Slate published this post as “Trump Can’t Escape the States.”
There are more and more signals that Trump is exploring firing Mueller and pardoning anyone and everyone in his circle. So what would happen next? The bottom line is that those moves would backfire spectacularly.
First, can Trump pardon himself? That’s surprisingly hard to answer. The constitutional text gives no answer, and the Convention debates aren’t particularly helpful. Some people cite the Latin phrase “Nemo judex in causa sua” (One can’t be a judge in his own case) as some kind of answer, but the pardon power is executive, not judicial, so a president isn’t formally a judge in his own case. Plus we don’t live in Rome, even if the Latin sounds wicked smart. The bottom line is that the only significant barriers to self-pardons are politics (impeachment) and federalism (state powers).
Presidential pardons can’t apply to state prosections. So state attorneys general, especially NY’s Eric Schneiderman, DC’s Karl Racine, and Delaware’s Matthew Denn should think about cancelling their summer vacation plans. (Yes, Delaware. Go Google “quo warranto.” Or see my old post or see below.) And maybe they should open up some office space for Bob Mueller and his A-team when he inevitably gets fired for getting closer and closer to hard evidence of serious crimes.
Anyway, three big points: 1) This is your increasingly regular public service announcement that the president cannot pardon people for state crimes. Even if Trump pardons Kushner, a state prosecutor can bring charges under state law any time. Similarly, Trump can be prosecuted under state law. Nixon’s attorney general concluded in 1974 that a sitting president can’t be indicted, but there is no constitutional text or precedent for such a conclusion, and it was obviously an interpretation that benefited Nixon. I think this is an open question, and on balance, I think the better argument is that the president can be indicted.
2) Pardons will backfire. If you’re pardoned, you can’t plead the 5th Amendment, the privilege against self-incrimination, because you can no longer face a penalty for incrimination. So if Kushner, for example, gets pardoned, he can still get a subpoena to testify. If he tries to plead the 5th, he would be help in contempt of court and face jail. If he testifies and lies, the pardon for old crimes does not extend to new crimes post-pardon. He would face jail for perjury. So ultimately, Trump pardoning Kushner, Flynn, etc. would actually make it more likely that they would have to testify.
[Update on pardons: Upon reflection, I overlooked that one of my points, that state prosecutors can charge state crimes even after presidential pardons, conflicts with another point: that pardoned people can’t plead the 5th. If a federally pardoned person might face state charges, they can still invoke the 5th Amendment’s privilege against self-incrimination. But even if they can take the 5th, the danger of state conviction under a mountain of documented evidence would still be enough to get someone like Flynn or Manafort to flip and be a witness against Trump.]
3) Pardons can be their own basis for impeachment. Impeachment is for high crimes and misdemeanors, which are not the same thing as regular crimes in the books. If a president abuses his or her power, that abuse can be the basis of impeachment even if that abuse isn’t formally covered by any criminal statute. For example, if Trump simply disregarded Supreme Court rulings on immigration (or if he disregarded the law to sabotage health care), Congress could impeach and convict. Abuse of the pardon power could be the same. I’d go further and argue that the use of the pardon to obstruct a criminal investigation is, well, obstruction of justice.
A president has the power to order a military strike, but not if his intent is to murder someone who has dirt on him or who is sleeping with his wife. Similarly, Trump has the power to fire FBI directors, but his intent can be criminal and violate the obstruction statutes (18 USC 1503, 1505 and 1512(c)(2)), as I’ve written before. So too does a president have the power to pardon, but not for bribes, for example. And in this case, Trump has the power to pardon, but not to obstruct justice (under the same statutes).
4) OK, on to the Mueller question. Can Trump fire Mueller? I’ve been reading a lot about this, and I’ll rely on Jack Goldsmith, who was part of the Comey/Mueller high speed thriller in 2003: It turns out that there is no clear answer.
So let’s assume that Trump will fire Mueller. It turns out that there are many ways for him to get back on the case:
A) A state prosecutor, with the help from a state attorney general or governor, could hire Mueller and his A-Team of lawyers. They’d have subpoena power under state criminal law.
B) State attorneys general could use their quo warranto power to investigate the Trump Organization, fraud, and money laundering from Russian sources.
C) A Congressional committee could hire him, such as the Senate Intelligence Committee. Or Congress could create a Joint Select Committee.
D) Congress could pass a new Independent Counsel statute that circumvents the president. Congress would need a veto-proof 2/3 supermajority of each House. Don’t hold your breath on that one.
E) The civil litigation on emoluments (there are now three suits) and the very intriguing new suit (Cockrum) against the Trump campaign for hacking conspiracy can also pursue many of the same questions, and Mueller and his lawyers could be called in as a witness in these cases.
The bottom line is that there are many paths to continue this investigation. If Trump pardons people or fires Mueller, those moves will backfire almost as badly as firing Comey.