To suggest oh, this area of the law is so much vaguer than any—it’s not.
DERSHOWITZ: No, no, no, it is. Let me tell you, we don’t know what—first of all, you talk about the Israeli person, we’ve had foreign people involved in American elections in the very beginning (inaudible).
That’s perfectly legal to have a foreign person involved as long as they don’t make substantial campaign contributions. There’s a volunteer exception, there’s another exception that says that if you’re doing it for your own purpose—
ABRAMS: You’re—you’re—you’re intentionally making this more complicated than it needs to be. Bottom—
DERSHOWITZ: Boy, it’s complicated enough.
ABRAMS: It is, but you know what, they’re going to figure out whether they’re—under current law, the same way they do in every other area of the law, was a—was a law violated?
It’s just not that hard, and to sort of throw your arms and say oh, we just can’t—we can’t interpret this area of the law.
DERSHOWITZ: You and I can’t agree—
ABRAMS: You’re a law professor, law professors point to specific difficult questions. That’s what you’ve done for a living.
DERSHOWITZ: —never see the basis for criminal prosecution. And unless you know with absolute clarity where the line is and you make—
—decision to be or not to be a felon, it should not be crime, crime should not be matters of a degree.
Can Trump Pardon Himself? The Answer Is: No One Actually Knows32
President Trump has tweeted that he has the authority to pardon himself. His lawyer, Rudy Giuliani, has said that this is probably correct. In response to this assertion of presidential power, academics, pundits, and talking heads are weighing in.
So let me weigh in as well. The answer is crystal clear: No one knows, and we will probably never obtain a definitive answer to this fascinating hypothetical question.
The more important question is, why did President Trump feel the need to assert a power he will almost certainly never to try to exercise?
Here is what I wrote in The Hill in July 2017 about this very question:
No president has ever tried it. No court has ever ruled on it. The Framers of our Constitution never opined on it. History provides no guidance. There is a clean slate.
Yet pundits and academic know-it-alls will express certainty on both sides of this issue. That’s what pundits and academics do. Rarely do they acknowledge they don’t know, because as experts they are supposed to know. But this is one question whose answer they cannot know.
They will have opinions, as we all do. But many will deliberately confuse the “is” with the “ought.” If they want the answer to be no, they will pretend the answer is no. If they want the answer to be yes, they will pretend it is yes. That’s the way some pundits and academics advocate: by claiming to be describing what they are not so subtly prescribing.
This has been the case especially with regard to Trump. Too many academics have said that non-criminal conduct by Trump and his administration is a crime, when they wish it were a crime, so that Trump can be removed from office. But wishful thinking is not a substitute for rigorous analysis, which has been sorely lacking among some of my fellow liberal academics.
So let’s rigorously analyze the question of whether a president can pardon himself. The preliminary question is whether a sitting president can be indicted, tried, and convicted for an alleged crime committed before he assumed office or while serving in office. The answer to that question probably is no, as most authorities suggest.
That has been the Justice Department’s view for some time now. It is also the view of most experts that once a president leaves office—by his term ending or by impeachment or resignation—he could be prosecuted. If that were the case, there would be no reason for the president to even consider pardoning himself now. He could wait until his last day in office.
Why the last day? Because if he can be prosecuted as soon as he leaves office, pardoning himself would protect him from that possibility, if the self-pardon were valid. Why would he not do it any earlier? Because he might well be impeached if he pardoned himself, and the pardon power does not extend to impeachment.
But he couldn’t be impeached on his last day or after he leaves office. If he had doubts about the validity of a self-pardon, he could also make a deal—explicit or implicit—with the vice president to resign a day before his term was up in exchange for a pardon from the one-day president.
So timing would be everything. Will we ever know for sure whether a self-pardon is constitutionally permissible? Unlikely.
First, a president would have to pardon himself. The political cost of such an action would be very high. Second, a prosecutor would then have to try to prosecute the former president. Third, the former president would have to raise the pardon as a defense.
Finally, the courts would have to decide whether, under our system of separation of powers, the courts have jurisdiction to review a presidential self-pardon. This last contingency is interesting, because as Justice Oliver Wendell Holmes reminded us, the power to pardon is not a mere “private act of grace,” but rather an important part of our “constitutional scheme,” of checks and balances and separation of powers.
But the pardon power is not without limit. A president could almost certainly be prosecuted after leaving office for accepting a bribe to grant a pardon. Although he would be prosecuted for accepting the bribe, the granting of the pardon would be the quid pro quo, and thus an essential of the crime.
James Madison wrote in The Federalist Papers that no person “is allowed to be a judge in his own case.” Would violation of this principle bestow jurisdiction on a court to invalidate a self-pardon? The answer to that question remains unclear.
I’m relatively certain these contingencies will never come to pass. So we will have to learn to live with the uncertainty of never knowing whether a president has the constitutional authority to pardon himself.
Trump Will Not Pardon Himself or Testify in Sex Cases33
From an interview by Chuck Todd on Meet the Press, June 5, 2018.
CHUCK TODD: Welcome back. On this question of whether the president—on the president pardoning himself, as you heard Giuliani say right there, politically, it could be a nonstarter. But what about legally? That question hasn’t really been asked before, and many legal scholars say we don’t know what that answer would be.
So we’re going to continue our constitutional law class right here. Joining me now is one such legal scholar and a frequent defender of President Trump’s current legal predicament. It’s Alan Dershowitz.
He is a Professor Emeritus at Harvard Law School, author of the upcoming book, The Case Against Impeaching Trump.
Professor Dershowitz, if any day we need to make sure to use the professor title, it is on a day like this. Thank you for coming on, sir.
DERSHOWITZ: Well, thank you.
TODD: Let me start—
DERSHOWITZ: Sure.
TODD: Let me start with this, you wrote that we don’t know whether or not the president can pardon himself.
DERSHOWITZ: That’s right.
TODD: In a tweet storm last night, Senator Ted Cruz did cite a 1974 Justice Department memo that made a finding that said it wasn’t true.
And it wrote, in part, in this—and I’m curious of your take on it. This is from August 5, 1974. Presidential or legislative pardon of the president under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.
I do note the date, August 5, 1974, three days before Richard Nixon would resign the presidency. What do you make of that finding? A finding is not a ruling—a Supreme Court ruling. That, I understand, but what do you make of that rationale?
DERSHOWITZ: It’s a logical argument against self-pardoning. Madison made the same point during the constitutional debates. On the other hand, the constitutional text itself says a president may issue pardons
in any case, except in cases of impeachment. That suggests one of two things.
Either the president can pardon himself or, more likely, that the Framers contemplated that a president couldn’t be prosecuted. And if he couldn’t be prosecuted, there would be no need to pardon himself. He certainly couldn’t be prosecuted while he was president.
Of course, Richard Nixon was pardoned when he left office. At the time he left office. So it would be [a] great law school exam question because no one knows the answer. And I have to tell you, anybody who tells you definitively—
TODD: Sure.
DERSHOWITZ: —that either it can be done or can’t be done is pulling your leg. Nobody knows the answer to the question.
TODD: Well, right, you have to have—we’d have to have an instance for it to be tested into the courts, and I think we’re all hoping we don’t ever get to a situation like this.
DERSHOWITZ: It won’t.
TODD: But do you—
DERSHOWITZ: It won’t ever happen, yes.
TODD: Do you think it’s so unclear that it’s something that should be dealt with in the Constitution itself? That if we believe that’s the case, then instead of worrying about a ruling or a finding, you pass a constitutional amendment that says the president’s powers of pardon are unlimited unless it involves himself. His or herself.
DERSHOWITZ: I think that would be a big mistake. You don’t amend the Constitution unless there are absolutely compelling reasons. I guarantee you no president will pardon himself or herself. There are much easier ways to do it.
If, for example, the president feared that he would be prosecuted after he left office or even if he was impeached, on the verge of being impeached, he could make a deal with his vice president that he would leave and retire earlier like Nixon did and then have the vice president pardon.
So I don’t think you amend the Constitution based on an unlikely hypothetical.
And the other point that I think is very important to make is that, you know, we hear the cliché thrown around and weaponized now that the president believes he’s above the law. I think that’s a misunderstanding of what they have been arguing.
What they’re arguing is that the law permits the president to be exempt and immunized from certain kinds of criminal or civil actions that other people can be subjected to.
We know already the Constitution does that for members of Congress. Members of Congress cannot be prosecuted, questioned, or sued for much of what they do on the floor or on the way to the Senate.
Judges can’t be prosecuted or sued.
TODD: Right. Members of the military.
DERSHOWITZ: Prosecutors can’t be—
TODD: Members of the military, individually, carrying out—
DERSHOWITZ: Well, some of the members of the military.
TODD: Yes.
DERSHOWITZ: Yes, it turns out none of them are above the law. What they’re—they are subject to different rules under the law.
TODD: Right.
DERSHOWITZ: So I think we should be very careful when we throw around the term “above the law” rather than within the law.
TODD: Fair enough. Let’s talk about, though, this idea of what power the president has inside the executive branch on the justice system and—because this is—
DERSHOWITZ: That’s a great question, yes.
TODD: Mr. Giuliani and I had an interesting back-and-forth. So for instance, one of the things he said on Sunday to me that before he sat down with an interview, he wants to make Rosenstein and Mueller produce sort of the evidence that triggered the investigation in—specifically.
And I said to Mr. Giuliani, well, if you guys have this broad interpretation of the president’s executive authority when it comes to investigations, then can’t he just order the Justice Department to produce this information?
DERSHOWITZ: And there are—
TODD: Where are you on this?
DERSHOWITZ: There are two answers to the question if you look at the constitutional history.
Jefferson ran the Justice Department like it was his own little, you know, house. He told the prosecutors who to prosecute. He, in fact, gave immunity to witnesses by giving them pardons if they would testify against his archenemy, Burr.
Lincoln told prosecutors who to prosecute. Roosevelt did.
So, constitutionally, the president does have that authority. But traditionally, we want to see a separation between that one particular department, Justice, and the presidency.
TODD: Right.
DERSHOWITZ: You know, the president does have a right to demand loyalty of his cabinet members. And the attorney general serves two roles, and it’s a constitutional flaw. One here is be loyal—
TODD: I was just going to say I think—
DERSHOWITZ: Yes.
TODD: I’m glad you used the word “flaw” because I was about to ask you, is this is a flaw?
DERSHOWITZ: It is a flaw.
TODD: Yes.
DERSHOWITZ: It is. He can demand loyalty from the man who is the attorney general. That is as who is his advisor on legal affairs but not the man who is the director of public prosecution. Most Western countries divide those roles.
TODD: Right.
DERSHOWITZ: In England, there is a director of public prosecution and a minister of justice. The minister of justice is loyal to the prime minister. Director of public prosecution, no. Israel, the same thing.
In the United States, we ask the attorney general to serve in this schizophrenic role. Loyal some days of the week, disloyal or not loyal other days of the week, loyal to the rule of law.
TODD: Right.
DERSHOWITZ: It’s an impossible role. And almost every president has tried to appoint loyalists.
TODD: Right.
DERSHOWITZ: Starting, obviously, with John Kennedy appointing his brother. Ronald Reagan appointing his own personal lawyer.
TODD: Right.
DERSHOWITZ: President Obama appointing a loyalist. So the president wasn’t wrong when he said I want loyalty from my attorney general.
TODD: Right.
DERSHOWITZ: It’s the Constitution that’s wrong for allowing that kind of a division to occur.
TODD: No, at best, I keep wondering if we should at least go to the Federal Reserve model when it comes to attorney general or the Justice Department.
DERSHOWITZ: Right.
TODD: So that there are five-year terms and different parties appoint different people and all sorts of issues there. But I want to move on to a couple of quick things before I lose you and we run out of time. Number one, the president has claimed the Special Counsel isn’t constitutional.
DERSHOWITZ: He’s wrong about that. He’s wrong about that.
TODD: Yes.
DERSHOWITZ: There’s nothing in the Constitution that would preclude it. Look, Steven Calabresi, who wrote the article, is a brilliant, brilliant analyst, and he makes an important point that the Special Counsel isn’t confirmed by the Senate.
But I think in the end, the attorney general has the right to appoint a Special Counsel to make recommendations, essentially, to the attorney general. In the end, the attorney general is responsible for deciding who to prosecute, so I think the president is wrong about that.
TODD: All right. And a judge ruled today that President Trump can be deposed in a defamation lawsuit brought last year by a former Apprentice contestant. She accuses the president of unwanted sexual conduct.
Now, the president’s lawyers are appealing that deposition. Marc Kasowitz is essentially saying, you know, that this is a critical constitutional issue.
Can the president—because this involves state courts. It doesn’t involve federal courts. It’s a little bit different. What do you think his chances are on appeal here?
DERSHOWITZ: Oh, I think zero or less. In fact, the fact that it’s a state court makes it much more difficult for a federal court to intervene. It seems to me the Supreme Court has ruled unanimously in the case involving Bill Cl
inton that a president cannot refuse to sit for a subpoena.
Now, one expects this president will not make the same mistake that President Clinton did, led into a perjury trap by his lawyer, Robert Bennett, who allowed him to testify fully about his sex life, which ended up getting him impeached. I would think this president will figure out some way of not having to testify about his sex life.
TODD: And going back to Robert Mueller, if he subpoenas the president and says he wants to question him about his actions before he was president—
DERSHOWITZ: I think—
TODD: —is there any way the president can avoid that issue subpoena?
DERSHOWITZ: He can. He can but it would be a Pyrrhic victory because then the Southern District of New York would issue a similar subpoena and he would not be able to resist as Mr. Trump, businessman.
TODD: Interesting.
DERSHOWITZ: He is subject to the rule of law like anybody else is, so it would be a Pyrrhic victory.
TODD: All right, Alan Dershowitz, Professor Emeritus at Harvard.
DERSHOWITZ: Thank you.
TODD: You are churning out a lot of books here, sir.
DERSHOWITZ: Thank you.
TODD: I feel like I just promoted a pretty recent one. Now, you got a new one coming. We will see you soon. Thanks so much for—
DERSHOWITZ: And I got another one right after that. Thanks.
TODD: All right, fair enough. Thank you, Professor.
People Confuse My Advocacy34
From a June 12, 2018, interview on Outnumbered Overtime with Harris Faulkner on Fox News.
FAULKNER: Is [Rudy Giuliani] right? Could [James Comey] find himself in trouble?
DERSHOWITZ: Rudy is a friend of mine and a great lawyer, but I disagree with criminalizing political differences in this context. I have been a longtime opponent of trying to criminalize political differences against Donald Trump and people in the Trump administration. And now that the shoe is on the other foot, I take the same position. Let’s not turn disagreements into crimes. Even if he acted insubordinately, that’s not a crime. And we have to start disarming both sides and stop weaponizing the criminal justice system and using it against political opponents. So, if is he criticized, that’s fine—in the marketplace of ideas. But let’s not turn criticism into criminalization on either side.
The Case Against the Democratic House Impeaching Trump Page 16
