My, we haven’t seen this many “America is Becoming Nazi Germany” headlines since the hot days of the 2016 election, when every liberal with access to a keyboard was warning us that Donald Trump was the second coming of Hitler himself. Once Trump and his lawyers began asserting that the president has the absolute right to pardon himself for any federal crimes he may be accused of, the doors were open for every armchair constitutional scholar in the country to throw their two cents into the pile. Well, in many cases, it was worth much less than that.
But for all the hullaballoo over what an unprecedented claim this is to make and how absurd it is and how Trump could be tried and imprisoned tomorrow by Robert Mueller, it is instructive to look back and learn that, actually, this isn’t a novel claim at all. In fact, a writer for Dan Abrams “Law and Crime” blog made the exact same case on the eve of the 2016 election. Except he wasn’t talking about Donald Trump; he was talking about the presumed winner of the election, Mrs. Hillary Rodham Clinton.
From writer Chris White:
It is Friday, January 20, 2017 and Hillary Clinton has just been sworn in as the 45th President of the United States after narrowly defeating Donald Trump in November. Republicans managed to hold both the House of Representatives and the Senate. A few weeks after winning the election, however, the Department of Justice handed down a multi-count indictment against Clinton over her handling of classified information and her involvement in an alleged pay for play scandal with the Clinton Foundation during her time as Secretary of State. It is a scenario that several of our commentators, and twitter followers have asked us to analyze.
Could a future President Hillary Clinton pardon herself?
The short answer is she could certainly try, and may very well get away with it. What’s more, there is likely little Congress could do about it — even with a Republican controlled House of Representatives and Senate.
So White goes on to explain that the Constitution frames the president’s pardon power without restriction, except that it cannot be used to override congressional impeachment. And while it does not specifically say that the president may pardon him or herself for federal crimes, the fact remain that it’s an open question. The president can claim he has this power; his critics can claim that he doesn’t. But until this is litigated in court, the truth is that we don’t know. At the very least, it is possible that Trump could pardon himself and there is not a thing Congress can do about it.
Hopefully, Robert Mueller will understand the futility of charging the U.S. President with the imaginary “obstruction” crimes he’s dreamed up to keep his appointment secure. But if he doesn’t, and Trump is forced to pardon himself…well, it won’t mean we’ve elected some kind of dictator in the making. It will simply be an exercise of a power that has always belonged to the president. That power may or may not come with a substantial political cost, but that’s for the voters to decide. That’s as it should be.