Update, June 9, 2018: Neil Lloyd points to 1) essentially the scenario I describe in the first paragraph of this post, and 2) a “150-year-old [U.S. Supreme Court] case frequently quoted as the definitive authority for the president’s unfettered prerogative to pardon, Ex Parte Garland” which also established “that, at least in some circumstances, the limit of the pardon power can be a legal question,” by which he means that it is subject to court review. Such a use of presidential power, he notes, would “facilitate one or more crimes.” Accordingly, he calls for the Supreme Court to review the matter. I’m unclear on who would have standing to bring this case but I guess somebody had standing to bring Garland.
It’s becoming much too easy to imagine waking up one morning to learn that Donald Trump has simultaneously fired Robert Mueller, who is investigating allegations of Trump campaign collusion with the Russians in the 2016 election and obstruction of justice, and has issued a blanket pardon for himself and all who he perceives remained loyal to him and were convicted or even face trial under Mueller’s prosecution or any of a number of legal challenges Trump faces.
In this scenario, Trump justifies the pardons by repeating his claim that the Mueller investigation is a hoax and a “witch hunt” and justifies firing Mueller by saying his investigation is now moot. He thus solves—or at least thinks he does—a basket-full of his problems. And he is hailed by authoritarian populists for his decisiveness.
My thinking relies heavily on what Jonathan Chait wrote a while ago:
A history professor of mine once attempted to explain to our class why Adolf Hitler invaded the Soviet Union, when the virtual impossibility of a land invasion of a country as vast as Russia was already well known in 1941. The answer, he concluded, was that Hitler was put on earth to invade Russia. His loathing of Bolshevism, his twisted Darwinian mania for the acquisition of land and resources, and his fixation with his own military genius all led him to a decision that was both inevitable and impossible.
This is a good way to think about President Trump’s approach toward the Robert Mueller investigation. Trump is not a Nazi or a fascist, and I am not drawing any moral parallel between the two. The similarity, rather, lies in the way an apparently irrational decision can be made logical and necessary by a certain kind of twisted internal logic that can escape outsiders. I have long believed Trump is headed toward a confrontation with Mueller, and those who doubt he will finally take the plunge are making the mistake of judging Trump by the standards of a normal president and not his own demonstrated pathologies. The sacking of FBI staffer Andrew McCabe for alleged unauthorized leaking to the news media, and comments by Trump’s lawyer John Dowd calling for the firing or Robert Mueller add to an ominous drumbeat.
This is the sort of forecast that I think only becomes more probable the longer the investigation goes on and particularly as Mueller indicts people closer to Donald Trump or possibly but improbably Trump himself. Now, here we have Trump tweeting that he will not pardon himself because he has no reason to, which only adds fervor to speculation that he will do just that. I don’t know if Chait will go here, but it seems to me his logic applies just as certainly to the prospect of Trump pardoning himself as it does to the increasing probability that Trump fires Mueller.
Those who have a faith in the U.S. political system that I do not share will insist that there are checks and balances in that system and that surely no president would go so far. See Chait, above, on “demonstrated pathologies.” I imagine such voices are getting rather faint as Trump continues to push the boundaries of his power in an authoritarian direction.
But I should not speak of such voices as if I were not among them. Indeed, I have thought that by August of this year, Republicans would be so alarmed by their prospects in the midterm elections that they would find a way to get Trump out. But a couple months ago, Eric Levitz pointed out, first, that Trump seems less restrained than ever and, second, that events have been moving in the opposite direction from my forecast as a Republican-controlled Congress shows little inclination to assert those checks and balances and as he replaces “adults in the room” with ideologues. Jennifer Rubin, who has been fairly consistent in criticizing this same Congress for its negligence, repeated her condemnation just the other day.
I am not known for my optimism anyway but at this particular moment, I appear to have been entirely too optimistic.
- Neil Lloyd, “Presidential Pardons Are Reviewable by the Courts,” Slate, June 8, 2018, http://amp.slate.com/news-and-politics/2018/06/the-supreme-court-could-review-a-trump-self-pardon.html↩
- The suggestion that Donald Trump might fire Robert Mueller never goes away, even as Republicans try to convince themselves that he won’t: Alexander Bolton, “GOP leaders to Trump: Leave Mueller alone,” Hill, March 20, 2018, http://thehill.com/homenews/senate/379419-gop-leaders-to-trump-leave-mueller-alone; Jonathan Chait, “Trump Is Taking Out His Enemies And Turning Toward Robert Mueller,” New York, March 17, 2018, http://amp.nymag.com/daily/intelligencer/2018/03/trump-is-taking-out-his-enemies-and-turning-toward-mueller.html; Chris Cillizza, “The White House just let slip a big secret about firing Robert Mueller,” CNN, April 10, 2018, https://www.cnn.com/2018/04/10/politics/donald-trump-robert-mueller-fire-fbi/index.html; Jonathan Easley, “Anger at Mueller burns hot on the right,” Hill, November 25, 2017, http://thehill.com/homenews/administration/361610-anger-at-mueller-burns-hot-on-the-right; Susan Hennessey, Quinta Jurecic, and Benjamin Wittes, “Trump’s Effort to Fire Mueller: Reactions to the New York Times Report,” Lawfare, January 25, 2018, https://www.lawfareblog.com/trumps-effort-fire-mueller-reactions-new-york-times-report; James Hohmann, “Prospect of Trump firing Mueller keeps becoming more untenable,” Washington Post, June 16, 2017, https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2017/06/16/daily-202-prospect-of-trump-firing-mueller-keeps-becoming-more-untenable/5942f946e9b69b2fb981dd36/; James Hohmann, “Five takeaways from Trump’s thwarted effort to fire Mueller,” Washington Post, January 26, 2018, https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2018/01/26/daily-202-five-takeaways-from-trump-s-thwarted-effort-to-fire-mueller/5a6aa8d130fb041c3c7d73cc/; Peter Nicholas, Aruna Viswanatha, and Erica Orden, “Trump’s Allies Urge Harder Line as Mueller Probe Heats Up,” Wall Street Journal, December 8, 2017, https://www.wsj.com/articles/trumps-allies-urge-harder-line-as-mueller-probe-drags-on-1512748299; Politico, “Trump Tried to Fire Mueller. So What?” January 26, 2018, https://www.politico.com/magazine/story/2018/01/26/trump-tried-to-fire-mueller-so-what-216539; Michael S. Schmidt, Maggie Haberman, Charlie Savage and Matt Apuzzo, “Trump’s Lawyers, in Confidential Memo, Argue to Head Off a Historic Subpoena,” New York Times, June 2, 2018, https://www.nytimes.com/2018/06/02/us/politics/trump-lawyers-memo-mueller-subpoena.html; Niall Stanage, “Republicans fear disaster if Trump fires Mueller,” Hill, March 20, 2018, http://thehill.com/homenews/the-memo/379230-the-memo-republicans-fear-disaster-if-trump-fires-mueller; Jeff Stein, “There’s now a bipartisan bill to protect Mueller’s investigation from Trump,” Vox, August 3, 2017, https://www.vox.com/2017/8/3/16090436/mueller-trump-bill-senate; Melanie Zanona, “Ryan: I’ve ‘received assurances’ Mueller won’t be fired,” Hill, March 20, 2018, http://thehill.com/homenews/house/379289-ryan-ive-received-assurances-mueller-wont-be-fired; ↩
- Maegan Vazquez and Veronica Stracqualursi, “Preet Bharara says Trump pardoning himself would be ‘almost self-executing impeachment,'” CNN, June 3, 2018, https://amp.cnn.com/cnn/2018/06/03/politics/rudy-giuliani-donald-trump-pardon-himself/index.html; Morgan Winsor, “President Trump ‘probably does’ have the power to pardon himself: Giuliani,” ABC News, June 3, 2018, https://abcnews.go.com/amp/Politics/president-trump-power-pardon-giuliani/story?id=55611418↩
- Del Quentin Wilber, “Trump Sought Comey’s Loyalty, Ex-FBI Director to Say,” Wall Street Journal, June 7, 2017, https://www.wsj.com/articles/trump-told-comey-i-need-loyalty-i-expect-loyalty-ex-fbi-director-to-say-in-prepared-remarks-1496858755↩
- Warren Richey, “Mueller aside, Trump now faces legal peril from a host of sources,” Christian Science Monitor, May 11, 2018, https://www.csmonitor.com/USA/Politics/2018/0511/Mueller-aside-Trump-now-faces-legal-peril-from-a-host-of-sources↩
- Jonathan Chait, “Trump Is Taking Out His Enemies And Turning Toward Robert Mueller,” New York, March 17, 2018, http://amp.nymag.com/daily/intelligencer/2018/03/trump-is-taking-out-his-enemies-and-turning-toward-mueller.html↩
- Jack Quinn and Rob Weiner, “Presidents can be indicted,” CNN, May 22, 2018, https://www.cnn.com/2018/05/22/opinions/presidents-can-be-indicted-opinion-quinn-weiner/index.html↩
- Dana Bash, “Giuliani: Mueller’s team told Trump’s lawyers they can’t indict a president,” CNN, May 16, 2018, https://www.cnn.com/2018/05/16/politics/rudy-giuliani-robert-mueller-indictment/index.html↩
- Jordan Fabian and Mallory Shelbourne, “Trump: I have the right to pardon myself,” Hill, June 4, 2018, http://thehill.com/homenews/administration/390516-trump-i-have-the-right-to-pardon-myself↩
- Eric Levitz, “Donald Trump Has Never Been More Dangerous Than He Is Now,” New York, March 21, 2018, http://nymag.com/daily/intelligencer/2018/03/donald-trump-has-never-been-more-dangerous-than-he-is-now.html↩
- Jennifer Rubin, “What GOP cowering has gotten us: Talk of self-pardon and absolute power,” Washington Post, June 4, 2018, https://www.washingtonpost.com/blogs/right-turn/wp/2018/06/04/what-gop-cowering-has-gotten-us-talk-of-self-pardon-and-absolute-power/↩