Judge Brett Kavanaugh’s nomination to the Supreme Court is showing that, in one area at least, the Trump administration has done an excellent job of vetting its appointees. How can you tell? Look at the quality of attacks on the man, which so far have focused mainly on how much credit card debt he incurred in buying baseball tickets.
Even most policy-based objections are no more than the hyperbole prepared in advance of any Republican president’s nominee. There is one objection from the Left, however, that relates to Kavanaugh’s legal scholarship: his opinions about whether a sitting president should be indicted while in office.
President Trump added fuel to the fire on a similar issue when he tweeted last month that “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”
Does the president have the right to pardon himself? Is he immune from prosecution? Is he, as his detractors have claimed, attempting to put himself above the law? And is Kavanaugh’s nomination intended to bolster Trump’s defenses from the Robert Mueller investigation? The answers are more complicated and uncertain than either side is willing to admit.
Prospects for a President’s Subpoenas and Testimony
Even before reaching the special prosecutor’s ability to charge the president with a crime, we have to consider how much Mueller can force Trump to comply with an investigation without his consent. Although the president has more leeway than an ordinary citizen, there is little reason to believe that he is immune from all pre-trial discovery requests.
It is not unprecedented for a president to testify under oath in an investigation of his own administration. In 1876, President Ulysses Grant agreed to issue a sworn affidavit in the investigation of his corrupt private secretary, Orville Babcock. Grant chose to comply, hoping his words would clear Babcock’s name, but later presidents have had to obey subpoenas they would rather have avoided.
When special prosecutor Leon Jaworski subpoenaed tapes and documents related to the Watergate investigation in 1973, the Supreme Court held in United States v. Nixon that the president must hand them over, subject to certain safeguards. One of the accusations against Kavanaugh is that he would overturn Nixon, which was decided by an 8-0 majority in 1974. But his objection to the case was not that the Supreme Court decided wrongly, but that it decided at all.
Nixon was one in a series of changes to the political question doctrine, a theory by which courts used to stay out of disputes that the Constitution dedicates to the political branches. Whether Kavanaugh disagrees with the precedent in Nixon or not (he only commented that “maybe” it was wrong,) the point was that the Supreme Court stepped into something that it once would have stayed out of.
It was not the last time they would do so. Jaworski wanted items, not testimony, an important distinction when considering the effect such a request has on the president. During the Clinton administration, the subject arose again. President Clinton claimed immunity from all civil suits during his term in office, but the Supreme Court in Clinton v. Jones thought that went too far. While expressing concern over the extent to which a civil suit might place unreasonable demands on the president’s limited time, they allowed the request to go forward. Given the boatload of civil suits currently filed against President Trump, the Supreme Court may have reason to reconsider that assumption.
Clinton also testified before a grand jury in the Jones case but, as with Grant’s testimony, it was voluntary, so the courts never had to reach a decision on whether such testimony by a president may be compelled. In this, Clinton protected some of the privileges of the office. Had he refused to testify, the courts may have compelled him to do so, which would have created a precedent to bind all future administrations. By consenting to appear, he lost the fight on that case but preserved the privilege for future presidents, including Trump.
Kavanaugh never objected to the mere investigation of a president and is unlikely to do so. As a young lawyer, he worked on the very investigation of Clinton that led to the ruling in Jones.
It is easy to see how the principle laid out in Jones could be abused, and a president tied down like Gulliver by the strands of a thousand frivolous Lilliputian suits against him. That said, the status of the Mueller investigation as a government action by a specially appointed prosecutor suggests that courts might give Mueller’s requests for testimony more weight since they are unlikely to set the precedent for other less worthy suits by various plaintiffs.
Trump might be able to limit discovery requests, but it is unlikely he would be able to avoid them completely. As to demands for his testimony, the law is unclear, but he might be better off agreeing to testify under negotiated conditions, rather than refusing and risking the courts deciding against him.
The Prospects for Jailing a President
Let’s take the question a step further: if Mueller or any other prosecutor discovers evidence that the president committed a crime, what happens next? Can he be indicted? Arrested? Jailed? There has been a great deal of disagreement about this question, and the Constitution provides no explicit answer.
Kavanaugh has been pilloried on the Left for allegedly suggesting that a sitting president could not be indicted. But consider the source: in the 2009 law review article from which his opponents draw their conclusions, Kavanaugh merely suggests that presidents should be immune from civil suits and indictments. In fact, he goes out of his way to say that Clinton v. Jones may well have been correctly decided to the extent that it said the president is not immune from civil suits.
On the issue of indictment, which has not been before the court, he simply offers his thoughts on a good policy for Congress to enact. “The indictment and trial of a sitting President,” he writes, “would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas.”
These are political ideas, not constitutional interpretations. While some judges confuse the two, Kavanaugh is a judicial conservative who knows that his policy preferences and the U.S. Constitution are not the same thing.
Where serious crimes would almost always result in impeachment and conviction, lesser offenses are unlikely to have the same result. Congress exercises some discretion in choosing only to use the impeachment process for serious offenses, although what constitutes a serious offense is inherently a political judgment.
Prosecutors may be less willing to cut the president some slack, especially prosecutors elected in jurisdictions are hostile to the current head of state. The New York attorney general’s office has already shown willingness to investigate Trump’s charity organization and has sued over alleged violations of law. These are civil, not criminal charges, but success in one court may encourage them to seek justice, as they see it, in another.
Could the government function if the president were sitting in a state prison? How could federal law be supreme over state law if the federal chief executive were allowed to be imprisoned by one of them? It is not specifically banned by the Constitution, but it makes a mockery of our system of federalism.
If you don’t particularly care about that, or you think President Trump is especially odious and wouldn’t mind seeing him in jail, bear in mind that allowing a president to be jailed is not something that would only happen once. Consider the time President Barack Obama ordered an American citizen to be killed without trial. That sounds like something a politically motivated prosecutor could make a lot of hay out of, and in parts of this country such an action could be very popular.
If you’ve forgotten about this incident—understandable, since the press virtually ignored this angle of the story—the killing in question was a drone strike against Anwar al-Awlaki that Obama ordered in 2011. Al-Awlaki was, unquestionably, a bad guy. He was a recruiter for al-Qaeda and the spiritual advisor of Nidal Hassan, the terrorist who killed 13 people in the Fort hood massacre.
He was also, unfortunately, a native-born U.S. citizen born in Las Cruces, New Mexico, where he spent the first seven years of his life. Al-Awlaki deserved execution, but American citizens are also entitled to due process of law. If he had been legally stripped of his citizenship, as Rep. Charlie Dent proposed in 2010, the legal uncertainty might have been avoided. Instead, the Obama administration chose to kill an American without due process.
That is arguably a greater crime than any Trump has ever committed, even if the victim richly deserved his fate. Yet no prosecutor brought a charge against Obama, or even against any member of his administration. This is likely due, in part, to the fact that no prosecutor is anxious to defend a terrorist’s rights, but also due to the custom that has developed against indicting sitting presidents.
The Prospects for Self-Pardon
Even if the president cannot be indicted or imprisoned while in office, that does not foreclose the possibility of him being convicted of a crime after he leaves office. That much is clear in the Constitution’s text: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Once a president leaves office, any protection he may have no longer applies.
But can Trump pardon himself of any alleged crimes, as he said in his tweet? Again, the Constitution is not verbose on the topic, but in this case the silence itself speaks volumes. Article II, section 2, clause 1 states with regard to pardons that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
The Constitution grants a broad power with just one limitation. That still leaves a tremendously broad range of pardoning power. Moreover, the fact that the Framers added one limitation but not others means that they knew some limit was necessary but only chose to impose that one. This was not an oversight; the power to pardon crimes was meant to be sweeping.
A recent Vox article surveyed various experts on this question, and the results were mixed. The quality of the answers, though, was revealing. Those who replied that the president could self-pardon focused on the text; those who said he couldn’t talked about how outrageous and wrong it would be.
Good Law, Bad Politics
They are both correct, in a way. It would be outrageous, but it is also not barred by the Constitution. That is an important distinction. As much as many of us revere that document and the men who wrote it, it is not a comprehensive list of right and wrong behavior. The government has powers under it that may be used in ways that don’t fit personal morals. That makes them wrong, perhaps, but not illegal. As in the case of presidential indictments, Kavanaugh is the sort of judge who understands that distinction.
Trump grasps the problem with the self-pardon when he tweets “why would I do that when I have done nothing wrong?” This is the trap of the pardon and, maybe, the reason self-pardons need not be banned: acceptance of a pardon constitutes an admission of guilt. If Trump were to pardon himself, he would avoid jail time but would have admitted to the entire country that he was a criminal.
Maybe that doesn’t matter. Who cares what they call him if he gets away with it, right? But Trump would still be in office and still have to face the one thing the pardon cannot wash away: impeachment. Right now, that is no great threat. Even if Mueller’s eventual findings demonstrate some alleged criminal behavior by the president himself, his actual guilt would still be a matter of debate. He would maintain his innocence, and his supporters might believe him and use that to justify voting against impeachment.
That argument falls to pieces after a self-pardon. Trump’s defenders in Congress would go from defending a possibly guilty man to defending an admitted criminal who wants to get off scot-free. We believe that a man is innocent until proven guilty, but one who admits his guilt has a much harder time garnering his countrymen’s sympathies. A president who takes a self-pardon is a dead duck electorally and in the inevitable impeachment trial.
All of this goes to show that law and politics diverge on these questions. There are probably ways for the president to avoid testifying in the Mueller investigation, and there are almost certainly ways to avoid indictment or arrest. Even if he is accused without being charged, he can avoid jail with the stroke of a pen. These things are legally true, but they bear a tremendous political cost, and Trump knows it.
Kavanaugh’s nomination does not change that political and legal reality. A self-pardon is legal and would keep Trump out of jail, but it would be the end of his presidency.