We must be careful here to not conflate two issues...the criminality of a presidential action must be viewed entirely apart from the prospect of impeachment, which is a political act. No one here has argued that a pardon impedes an impeachment process. More importantly, while I agree a President cannot pardon himself from a criminal prosecution, it is imperative that his successor do so with the exception of a crime of violence (murder, assault, rape, etcetera). The Constitution is designed to provide "criminal" immunity to the Chief Executive, while allowing for the removal of a "criminal or unjust" leader through a structured political process...this is done with good reason, and taken directly from the lessons of the Roman Republic and its ignominious end which arose, in great part, from the criminalization of Consular actions.
I won't quibble with you about the above paragraph.
Jim Acosta's assertion that the president considers himself above the law is not frightening at all...in a real sense the President IS above the law. He is NOT, however, above removal through the Constitution's designed political mechansims. So, rather than frightening, it should be comforting that the President is above the law IN THE SENSE that he cannot be prosecuted criminally while in office...were he not so, each Executive would face a continuous threat of endless prosecution from any Judiciary officers who opposed him, were unethical, or who had no respect for the balance of powers set forth in our founding document. So, as usual, Jim Acosta is flat out wrong.
I will respectfully quibble with that second paragraph. (See below.)
I specifically question your statement that there is at least “a sense†in which the President is above the law. I think that a better way to describe the President’s situation is to say nothing more than the fact that the prosecution of a sitting President has to follow a special protocol, one surely intended for the peace and safety of the United States—and certainly not intending to proscribe criminal justice for a sitting POTUS (which proscription would amount to a breach of justice).
As you realize, the Constitution merely adds an
extra (first) step in meting out justice to a rogue POTUS. That extra step definitely is a matter of
law--the Law that is the Constitution itself. Trump is completely under that law.
Someone might say
Well, although our POTUS is certainly and completely under the Law that is the Constitution, a sitting POTUS is not under the criminal law that applies to everyone else—inasmuch as a sitting POTUS cannot be criminally prosecuted. In that narrow but real sense, he is positioned above the criminal laws that apply to everyone else. Okay--but not okay. The important fact is that a POTUS
can be ultimately prosecuted for a crime—as anyone else could be prosecuted. As practically everyone on this thread has already said, the Constitution necessarily protects the
nation by protecting the noble
Office of POTUS against criminal prosecution, not protecting the
person in that Office. To appreciate the distinction I am making, I would point out the impeachment protocol specified in the Constitution is a pretty quick procedural step that can get a POTUS thrown out of his Office and shortly thereafter thrown
into jail. So, I would say that the “narrow but real sense“ in which the
person of the President is above “criminal law†is a
spurious “sense†after all. I realize that I am discussing semantics, but semantics are important. For example, if Trump were to tweet out a statement that there is a “narrow but real sense†in which a POTUS is above the law, he would get burned at the stake for his semantics—fanning the flames of the furor over his dopey defense of self-pardoning. It’s safer for him to avoid any proclamation that he is above the law in any sense whatsoever.
The safest course of all would be for Trump to recant his dopey self-pardon defense and then shut up.
***
President Trump has another problem worth discussing along these lines. In view of the confusion inherent in this very odd topic, I think we ought to pose (privately) the following questions: 1) Does President Trump
believe that he is under the law flowing down from the Constitution? I would certainly hope so. 2) Would he even
say that he is under that law? I assume that he would always say that he is.
So far, so good.
Unfortunately, Trump has unwittingly contradicted any professed submission to â€the law†in a roundabout way that Jim Acosta and millions of other folks quickly and (I believe) correctly sensed (see below):
Long before the infamous press conference (one handled as well as possible by our heroine Sarah Sanders), Trump’s legal team, speaking for Trump, had already declared openly that a sitting President cannot be indicted for a crime. Please correct me if I am wrong, but I got the impression (from reading the reportage about the press conference) that the really big uproar in the presser happened when Acosta zoomed in on the Trump team’s more recently leaked threat to the effect that
Trump would simply pardon himself out of any indictment.I certainly don’t fault Trump’s lawyers for saying that a sitting POTUS cannot be indicted. If Acosta objected to that, so what? But it did seem to me, based on the snippets that I saw from the presser, that Acosta was righteously indignant
about the President’s specific claim that he could pardon himself.(The day after the press conference, by the way, all the news was about the President claiming that he could pardon himself. I saw nothing about any Constitutional argument that a sitting POTUS cannot be indicted in the first place. The next thing I read was Trump’s tweet that he has an absolute right to pardon himself.)
I flatly submit that the arrogation of a prerogative of a self-pardon—and the presentation of that claim to the enemy team—was a major blunder by Trump and his team. No matter what Trump and his lawyers would like to believe (perhaps), Trump’s legal claim is a
ridiculously false claim that gives the appearance of pretty incredible hubris on the part of a President of the United States. The fact that Trump personally doubled down on Twitter made the whole mess even worse. Trump might very well wind up digging himself into deeper political trouble, perhaps under pressure from a cadre of badgering reporters, by publicly characterizing the self-pardon “loophole†as establishing a
â€narrow but very real sense†in which the POTUS certainly
is above the law.
Again, the Constitution
obviously does
not permit self-pardoning. The whole idea of pardoning
oneself is patently
absurd. (See my forthcoming post about this.)
No one has to be a Constitutional scholar to realize any of this. One only needs to be humbly sincere—which characteristics of humility and sincerity are widely regarded as seriously lacking in our current “a__hole President†(a term of affection used by one ardent Trumper I met). Whether or not Trump has the ability to face his own self-deception, his claim of a Constitutional prerogative of self-pardoning nets out as yet another political blunder. He has created (or perhaps enhanced) a pretty sleazy image for himself—this time involving an ostensibly self-serving attempt to upend the Constitution that he has sworn to uphold. (Our President should have thought longer and harder about the self-pardon theory. He seems to make far too many snap judgments and far too many ill-advised retorts to his adversaries. And I’m not impressed by anyone on his legal team—especially not Giuliani. [My reasons for loathing Giuliani have to do with his own slipshod interpretation of the Constitution in other very important Constitutional matters.)
So, yeah, Jim Acosta’s insinuations about our POTUS are not without merit, whether Trump realizes it or not and whether TBR’s Trumpers realize it or not. I am appalled that a shill like Acosta has taken the moral high ground away from Trump (who happens to be doing a very good job overall in the White House). The worst thing about the infamous exchange between Sarah Sanders and Jim Acosta is the fact that Trump’s awful interpretation of the Constitution fuels the MSM’s never-ending narrative that our current POTUS is a lying narcissist and a power-mad monster.
We can bet that this matter is not going away unless and until Trump recants his position concerning “self-pardons.†Even if he does so, it is political toothpaste that will be hard to put back into the tube.
Further, while the Trump legal team's position may be in error it certainly does not reflect a "breach of justice" as you state, rather, it is a position that fails to account for...as you say...natural law, under which no man may serve as his own judge under the law.
All of this said, Trump's lawyers are not playing a "nasty little game", what they are actually doing is playing politics...OK, I guess that is a nasty game but both sides play it...Schumer, the DNC and their ilk being the prime example of "nasty" little political players. I'd argue that the legal team knows Trump will never issue a self pardon...on the contrary, it appears he has no reason to do so as there is simply no evidence he's committed any crime...but making they argument that he CAN do so is simply posturing to send the signal that they will not be railroaded by the grotesquely biased Mueller team nor will they go quietly into the goodnight that the Left so desperately is seeking to manufacture from the ether.
Next, I would point out that I never said that the Trump team has perpetrated a breach of justice. Rather, I said that self-pardoning by a sitting President, if allowed, could
precipitate a breach of justice.
The sort of breach to which I was referring ain’t gonna happen, of course, because the self-pardon would never be allowed anyway. But that’s not good news. (See below.)
Here’s a possible scenario: Mueller presses forward to indict Trump for Mueller’s favorite crime of obstruction of justice. Next, if a crookedly stupid federal judge were to allow the unconstitutional criminal prosecution of a sitting POTUS, and if Trump were to respond to the indictment by issuing a self-pardon, the judge would almost certainly tear Trump’s head off for daring to try that ploy. I suspect that the court would allow the prosecutor to say that the very attempt to self-pardon, although not clearly a crime in itself, actually does fit the overall picture (at least) of obstruction of justice.
(Hmmm…a reasonable judge might even declare that the self-pardon attempt is at least an impeachable crime in and of itself—given that it is so obviously disallowed by the Constitution and so obviously contemptuous of the Body Politic.)
The ruling against Trump’s attempted self-pardon could even wind up getting Trump impeached while the improper but court-authorized prosecution went forward. A big part of the impetus for impeachment, of course, would be, not merely the fact that Trump claimed and tried to exercise a right of self-pardon but also the fact that he is under arrest while still the POTUS. If Trump were to be impeached/convicted/removed in Congress, it would conceivably lend a kind of bogus legitimacy to the unconstitutional indictment and Trump could wind up in prison.
Even if Trump winds up only being removed from the Presidency. Mueller and his Deep State cronies would be perfectly content with that outcome. I’ll even bet that Mueller is right now salivating at the prospect of indicting Trump even if doing so would be flagrantly outside the guidelines of the DOJ. (Mueller is a highly motivated rogue prosecutor bent on taking Trump down in any way possible. Mueller cares nothing about DOJ policy—even if that means getting his hands slapped occasionally. [Getting his hands slapped would be better than going to jail for the corruption and conspiracy charges that will eventually be leveled against him by President Trump.])
Finally, let me say that I agree with Maj. Bill White that we shouldn’t be squeamish about defense lawyers using sleazy arguments to fight back against sleazy prosecutors What I have been trying to say in this post, however, is that the sleazy self-pardon defense is so bad as to be politically and perhaps even legally
counterproductive. It's too dangerous to whisper to an enemy leaker, much less to assert boldly in a tweet.
Put simply, its become crystal clear that the President has done nothing worthy of impeachment or criminal prosecution...and his team is fighting back in a political way against what is little more than a political and unethical hit job from the Left. I may not approve of Rudy's tactics, but they are understandable in light of the lynch mob approach they face from the Dems.
I respectfully submit that your summary paragraph puts things too simply, for the reasons I have given in this post. My summary is as follows:
A self-pardon, if attempted, would be struck down by a federal judge in a New York minute. The claim of a prerogative of self-pardon would be thereby exposed as nothing by sleaze. Worst still, and more realistically, even claiming in advance a prerogative of self-pardon could wind up serving as both the
trigger for an illegal
indictment and the subsequent
trigger for
impeachment. In short, I really do fear that Trump
will be railroaded if he keeps up his legally and
politically stupid position.
Why can’t Trumps’ lawyers even visualize this worst-case freight train coming at them? I suspect it’s because they are so busy fashioning a cool stalemate defense based on silly word game in the Pardon Clause. My goodness, this is not the time to put forth a repugnant theory of self-pardon, especially when the client is a guy like Trump.
(By the way, I haven’t even mentioned the fall-out that Trump will face when he starts arresting Deep State bad actors and shipping them off to Gitmo and military trials for sedition and treason. That plan is definitely in the works, and it will freak out America.)
@Maj. Bill Martin @Oceander @Weird Tolkienish Figure @Emjay @Sanguine
