Okay, Mr. President. We hear you're upset with a growing special-counsel investigation and exploring how to/whether you could pardon your family members, your staff and maybe yourself.
There's no indication you've got pen in hand to pardon anyone, just that you're considering what that would look like in the event that special counsel Robert S. Mueller III's investigation leads to criminal indictments for your inner circle — or even you.
I spoke with some legal and ethical scholars, and here's the best I can come up with: You could pardon whomever you wanted, including yourself, from any federal crimes and probably get away with it legally. But politically, you could be in a whole host of troubles and could even lose your job.
Let's run down how this might play out, in three plausible scenarios.
Scenario 1: Mueller charges your campaign aides or family with a federal crime
We understand he's investigating your family's financial ties, your political campaign's connection to Russia and even whether you tried to obstruct justice. We don't know what he is finding, what he will find or when/if he will find anything.
How a pardon would work: If he did charge someone in your inner circle with a federal crime, you could pardon that person/people. You have the power to pardon people for crimes and the power to commute sentences. And presidents have pardoned members of their administration before: President Gerald R. Ford pardoned former president Richard M. Nixon and President George W. Bush commuted the sentence of former aide Scooter Libby.
But: There's a reason presidents usually issue pardons on their way out the door: It's politically unpopular to pardon almost anyone.
And it would probably be especially distasteful to the American public if you pardon your friends, said Jehns David Ohlin, vice dean of Cornell Law School: “It seems utterly corrupt for a president to escape criminal responsibility by pardoning his inner circle.”
Given that your approval rating is the lowest in modern history for a president at this point in time, is this really a good idea?
Another but: Once someone is pardoned, logic suggests that they can't invoke the 5th Amendment to avoid testifying, said ethics expert Melanie Sloan. “You only have the right to exercise the 5th Amendment when there's a possibility you could incriminate yourself and be charged with a crime.” So if you pardon people and Mueller's investigation is ongoing, they could be compelled to testify against you.
Speaking of …
Scenario 2: Mueller charges you with a crime
We're not sure this is a possibility as long as you're in office. The long-held view in the Justice Department is that a sitting president can't be prosecuted. The only way around that is impeachment, which Congress has full discretion over. Mueller could challenge that, but it'd be remarkably aggressive on his part and require his investigation to fight two court cases: 1) whether you can be prosecuted 2) the crimes you would have been charged for.
How a pardon would work: You issue it and see what happens. There really is no case law about whether a president can pardon himself; it's never happened before. And Ohlin thinks it'd be difficult for anyone to sue you over it, because it's not clear who would have legal standing to argue that they were directly affected by this.
But: If pardoning your family could bomb your approval ratings, pardoning yourself could be political suicide. “It smacks of royal authority,” Ohlin said. “If a president can pardon himself, he's basically saying, ‘Well, I'm above the law,’ and that sounds like the type of royal authority we rejected when we created America.”
Even considering pardoning yourself crosses a red line ethically, Sloan says. If you went through with it, that might be the tripwire that would convince moderate Republicans to join Democrats and start impeachment proceedings. Already a House Democrat has filed an article of impeachment against you.
And all you need to get impeached is a majority of Congress to agree that you've committed “treason, bribery, or other high crimes and misdemeanors.” They can define those terms however they wish.
.@SenatorWarner, top Democrat on Senate committee investigating Russia: Pardoning anyone "involved would be crossing a fundamental line."
— Amber Phillips (@byamberphillips) July 21, 2017
If you go through with pardoning anyone related to the Russia investigation, especially yourself, both Ohlin and Sloan think impeachment is the greater danger to you than any legal consequences.
Scenario 3: Mueller's investigation leads to state or local charges for you or your inner circle
This is a possibility, given that Mueller is reportedly investigating your financial ties, and you and your family have a lot of those.
How a pardon would work: It wouldn't. The Constitution gives states the right to conduct their affairs without interference from the federal government. So your pardon pen is useless in this case.