House Democrats want to send a message to President Trump about potentially pardoning himself or any associates who would offer him political favors: If he attempts to do so, the courts will consider it either null and void or an act of bribery.
The pardons bill is the brainchild of House Intelligence Committee Chairman Adam B. Schiff (D-Calif.), who drafted it in 2018 after Trump and his lawyers opined that the president could entice his former national security adviser Michael Flynn and his former campaign chairman Paul Manafort not to cooperate with federal investigators by dangling the promise of a pardon.
For Democrats, the issue took on new urgency earlier this month, when Trump commuted the sentence of his friend Roger Stone, who was due to start a 40-month prison term for seven felony counts, including lying to investigators and witness tampering.
Schiff’s bill requires that if the president issues a pardon for a matter in which he or she is a subject, target or witness, the attorney general must give Congress all materials and evidence from that case within 30 days. In the weeks since Trump took action to save Stone from going to prison, Schiff’s bill has been amended to also state that, if the president trades a promise of a pardon or commutation of a sentence for anything of value, that will be considered a violation of the federal bribery statute.
The committee is also expected to consider an amendment from Rep. Jamie B. Raskin (D-Md.), a former constitutional law professor, to make it clear that a president cannot pardon himself or herself. His amendment states that any such pardon would be “void and of no effect” in the courts and would not give the president “any legal immunity from investigation or prosecution.”
Trump has claimed that he has an “absolute right” to pardon himself of federal crimes, despite that statement directly conflicting with a 1974 Justice Department memo, drafted in the aftermath of the Watergate investigation and just days before Richard M. Nixon resigned the presidency.
“Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” the memorandum from the department’s Office of the Legal Counsel reads.
Still, Trump’s attitude about pardons — and what critics say is his willingness to use them to protect his political interests — has unnerved his critics, who worry the president may compromise cases that could be brought against him after he leaves office.
In 2018, reports implicated Trump as an unindicted co-conspirator — “Individual 1” — in a hush-money payment case against the president’s former lawyer and fixer Michael Cohen. While the federal courts have effectively closed additional proceedings related to Cohen’s case, and the Manhattan U.S. attorney who oversaw those matters, Geoffrey Berman, was removed from his post, it is possible that the Justice Department could pursue action against Trump in the future. Separately, Manhattan’s district attorney is pursuing a similar case, over which a president’s pardon power would not extend.
Additionally, former special counsel Robert S. Mueller III’s investigation into suspected Russian interference in the 2016 U.S. presidential election — the probe that gave rise to the cases against Trump’s associates — identified evidence of the president potentially obstructing justice. Attorney General William P. Barr determined that the evidence in Mueller’s report did not merit bringing charges, and Trump decried that report as a “witch hunt” in his papers commuting Stone’s sentence. But Mueller’s insistence that the evidence “does not exonerate” Trump could also influence future prosecutors.
Whether such cases are ever brought, however, depends on whether the five-year statute of limitations on the relevant charges has expired. That concern is at the heart of the second bill the House Judiciary Committee plans to consider Thursday.
Justice Department memos from 1973 and 2000 make clear the agency’s policy is not to indict a sitting president. But the statute of limitations on certain federal crimes is shorter than a two-term presidency.
The second bill, which House Judiciary Democrats have dubbed the “No President Is Above the Law Act,” seeks to get around this problem by freezing the statute of limitations on offenses committed before or during a president’s term for the duration that he or she is in office.
A president’s “tenure in office shall not be considered for purposes of any statute of limitations,” the measure states.
Committee Republicans are expected to object to both proposals, despite the fact that neither is retroactive. The bills also face stiff odds of ever being taken up in the Republican-led Senate.