Friday, July 21, 2017

Post: Trump Interested in Pardon Power

The Washington Post reports that "some" of President Trump’s lawyers "are exploring ways to limit or undercut special counsel Robert S. Mueller III’s Russia investigation, building a case against what they allege are his conflicts of interest and discussing the president’s authority to grant pardons." This all comes from "people familiar with the effort." The Post also reports that the President has asked his advisers about his power "to pardon aides, family members and even himself in connection with the probe, according to one of those people."

On the other hand, the Post reports that "a second person" says Trump "simply expressed a curiosity in understanding the reach of his pardoning authority, as well as the limits of Mueller’s investigation."

Trump's lawyers are said to be working "to corral the probe and question the propriety of the special counsel’s work" and are "actively compiling a list of Mueller’s alleged potential conflicts of interest" which could "serve as a way to stymie his work."

The Post boldly predicts that, if the President of the United States pardons himself, "in the face of the ongoing Mueller investigation, it would set off a legal and political firestorm."


Prof. Brian C. Kalt believes (as does the Editor of this blog) that "the weight of the law argues against a president pardoning himself," but allows for the notion that the question is "open." We are reminded of Jerome Frank's definition of "the law" - "a good lawyer's guess of how a particular judge might rule in a particular set of circumstances." But we also believe there is little or nothing in constitutional law which does not assume that, in the instance of clemency, there is the person granting clemency and there is a recipient. These are assumed to be separate, distinct actors. This assumption has been more than a mater of semantics, or theory. It has been a functional assumption. Prisoners have rejected conditional commutations of sentence, for example - ask President Obama. The Supreme Court has also often seen delivery and acceptance of an offer of clemency (by the intended recipient or his/her representative) as vital to understanding its validity - ask Isaac Toussie, pardon, then un-pardoned by George W. Bush. Etc. See Post story here.

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