The rocky road of Donald Trump’s presidency has not been smoothed by his recent behavior. The chief executive’s inclination to bludgeon even cabinet members with a hammer and tongs makes the White House seem weak, rather than strong. And choosing a Director of Communications who was a smart-mouthed neighborhood guy would dampen the loyalty even of serious people seeking to help a faltering Administration.
One clear sign of constitutional distress is when the President and his advisers begin to flirt with the pardon power—a safety valve included by the Founding Fathers to forgive actions taken outside the law. Article II, section 2 of the U.S. Constitution provides that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This power may seem tempting, sufficient to rescue any eager staffer who exceeds the limits of the law, all the more when the President has asked him to do so.
But self-dealing may also have a constitutional limit. Could a complicit President pardon errant members of his own cabinet or White House staffers who acted under his specific instructions? Could he pardon members of his own family? Could he pardon himself?
The puzzle of the pardon power is intertwined with issues of integrity. What would happen, for example, if serious questions were raised and conclusions drawn about the legality of the Trump family’s business affairs in Russia? Could the tip of a pardon pen really be used to avoid any liability?
Beyond the pardon power, could the President, as the chief law enforcement official, control investigations of his own transactions? Do we really want to entertain the resurrection of the Special Prosecutor Act that flourished under Jimmy Carter?
The American Republic has occasionally faced troublesome questions of White House and presidential misbehavior, not least in the Nixon and Clinton Administrations. Some useful precedents were provided by these traumas and solutions.
The modern gold standard for integrity was carved into the architecture of the Department of Justice by the staunch insistence of a woman whose name should be remembered. Mary Lawton died at the age of 58 in 1993, but her reputation is still pound sterling among lawyers and politicians in Washington.
This plain-spoken woman was ranked first in her class at Georgetown Law School and served as a senior career official in the Justice Department for 33 years, where she served in the Office of Legal Counsel as a Deputy Assistant Attorney General and later as the Chief Counsel of the Office of Information Policy and Review, now the National Security Division. She was widely admired by leaders of both political parties for keen intelligence and no-nonsense frankness. Attorney General Griffin Bell simply adored her, as did Antonin Scalia. She was the Justice Department’s expert on privacy, and a moving force in the passage of the Foreign Intelligence Surveillance Act. She also served as general counsel for the Corporation for Public Broadcasting.
But it was Mary Lawton’s laser-beam conclusions on the pardon power that may matter most. The notorious “plumbers” burglary at Democratic Party Headquarters in the Watergate Complex on June 17, 1972, was an embarrassment to both Richard Nixon and the Republican Party. As a “second-rate burglary,” it implicated members of the White House staff in their clumsy attempt to get inside information on the Democrats’ electoral strategy. It boosted the circulation of the Washington Post as two young reporters unraveled the scandal through gumshoe investigation and leaks from inside the Administration.
Faced with the threat of impeachment and removal from office, Richard Nixon resigned the presidency on August 9, 1974. It took a genuinely good man—the oft under-appreciated Gerald Ford serving as Vice President—to end the country’s misery through a pardon of President Richard Nixon on September 8, 1974.
In the midst of this catastrophe for good government, it was the venerable Mary Lawton, as the Acting Assistant Attorney General for the Office of Legal Counsel who helped to contain the escalating crisis. She was asked to advise the Deputy Attorney General at the time, Laurence Silberman, on the constitutional question of whether Richard Nixon could use his Presidential powers in order to pardon himself and thus avoid potential criminal liability.
Lawton’s conclusion was plain-spun, based on the history of the common law. In the famous and celebrated common-law precedent of Bushel’s Case, Lord Edward Coke advised the King of England that no person—including the king—could be the judge of his own case. The nature of law itself requires impartiality and objectivity.
Hence, Lawton opined, on “the question whether the President can pardon himself…it would seem that the question should be answered in the negative.” This is true because of the “fundamental rule that no one may be a judge in his own case.”
This is a matter that every President must keep in mind. If he or she is thought to have deliberately breached the fundamental legal guarantees of the Constitution and the common law, the matter passes to the House for consideration of articles of impeachment and to the Senate for trial. An issue of this solemnity will be understood by a man such as General John Kelly. One can be glad that Anthony Scaramucci was only a passing thought.