On Monday, US president Donald Trump took to Twitter and claimed he had the "absolute right" to pardon himself.
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? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
Even as Trump and his lawyers are seeking to expand the limits of the president's authority in the face of the Russia probe, there can be no doubt about one fact: To borrow a phrase from Abraham Lincoln, as the 45th President of the United States, Trump is "clothed in immense power".
Executive powers: Commander-in-chief
According to WhiteHouse.gov, the power of the Executive Branch (one of the three branches of the US government), is vested in the President of the United States, who also acts as Head of State and commander-in-chief of the armed forces.
The president is responsible for implementing and enforcing the laws written by Congress and, to that end, appoints the heads of the federal agencies, including the cabinet, according to the website.
Executive orders, presidential memoranda and proclamations
But the US president need not wait for Congress to take action. He also has the power of the presidential pen, through which he can affect change through executive orders, presidential memorandums and proclamations.
An executive order is a legally-binding directive issued by the president to government officials and agencies which cannot be overturned by Congress, according to a report in Sky News. But executive orders are subject to judicial review.
In January 2017, Trump famously signed an executive order banning refugees from war-torn Syria indefinitely, suspending the broader US refugee admissions programme for 120 days, and halting all visa applications from countries deemed a terrorist threat — Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen — for 30 days.
Presidential scholar Phillip Cooper, in his book By Order of the President: The Use and Abuse of Executive Direct Action, has described presidential memoranda as "executive orders by a another name", according to a report in USA Today. However, there are also key differences between executive orders and memoranda: Executive orders are numbered; memoranda are not.
Memoranda are always published in the federal register after proclamations and executive orders. And under Executive Order 11030, signed by President Kennedy in 1962, an executive order must contain a "citation of authority," saying what law it's based on while memoranda have no such requirement, according to the report.
Presidential proclamations are the oldest form of presidential directive and the most sweeping. They're often directed at citizens — not just government officials — and may call on them to take a specific action, according to the USA Today report.
In April 2018, Trump signed a proclamation directing the deployment of the National Guard to the US-Mexico border to fight illegal immigration. “The lawlessness that continues at our southern border is fundamentally incompatible with the safety, security, and sovereignty of the American people,” Trump wrote in a memo authorising the move, adding that his administration had “no choice but to act.”
The power of the pardon is granted to the US president under Article II, Section 2, Clause 1 of the Constitution: “The president … shall have power to grant reprieves and pardons for offences against the United States, except in Cases of Impeachment.” The president’s power can only be used to pardon someone for a federal crime, not a state one, according to a report in PBS.
In August 2017, Donald Trump used the presidential power of the pardon for the first time for Sheriff Joe Arpaio. He recently pardoned firebrand conservative commentator Dinesh D'souza and is considering using his power to commute the sentences of Martha Stewart and disgraced former Illnois governor Rod Blagojevich.
Can a president pardon himself? No, but...
Trump and his lawyers, in a memo sent to Special Counsel Robert Mueller, have argued that he could not have possibly obstructed justice because he is America's chief law enforcement officer and oversees the Justice Department and the executive.
While constitutional scholars say that the issue of a president pardoning himself remains unresolved, a 1974 opinion from the Justice Department’s Office of Legal Opinion maintains that presidents cannot pardon themselves “under the fundamental rule that no one may be a judge in his own case”.
While that question has never been tested before the country’s highest court, Trump might well become the first sitting US president to test that theory. The opinion does say that if a president were to declare himself temporarily unable to remain in office, the vice-president could take over as acting president and pardon the president.
Impeachment, the exception to the pardon
There is one notable exception to a president’s pardoning powers Trump hasn't mentioned: Impeachment. Under the US system of checks and balances, Congress can hold presidents accountable by ousting them using impeachment trials.
Only two presidents have been impeached by the House, although both were acquitted by the Senate: Johnson in 1868 after he clashed with Congress over reconstruction of the South and Bill Clinton in 1998 on charges of lying under oath and obstructing justice concerning his sexual relationship with Monica Lewinsky. Nixon famously avoided impeachment by resigning before the House could vote.
Trump retains his pardoning powers up until a possible impeachment. And considering that impeachment trials tend to be wildly partisan affairs, it is unlikely Trump would be ousted so long as the GOP still controls the House and Senate.
With inputs from AP
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Updated Date: Jun 05, 2018 21:04:08 IST