Trump just had his Nixon moment.
In asserting via a tweet that he had the power to pardon himself President Trump veered into the direction of Richard Nixon who said to David Frost in the famous 1977 interviews that “when the president does it, that means that it is not illegal, ” or he was aping Nixon from a 1973 press conference when the latter declared “I am not a crook.” In either case, Trump’s tweet shows increased desperation as his defenses against illegal behavior–whether primary liability for collusion with the Russians or other elections crimes–or obstruction of justice, fall.
Consider first the legal argument Trump made in his tweet that he can pardon himself. As I argued in Counterpunch and many others have pointed out, few if any reputable constitutional law scholars would support him on this argument. Basic principles of law such as checks and balances and separation of powers stand for the proposition that presidents are not above the law and that no person, not even the president, has unlimited authority to pardon himself from being accountable to the law. Presidents are not kings, they cannot be prosecutors, judges, juries, and executioners all at the same time.
But even more boldly, the twenty-page memo from Trump’s attorneys to the special prosecutor asserts presidents are above the law and they do not have to answer to subpoenas. It also asserts that the president as chief law enforcer can start or end criminal prosecutions at a whim. These claims rest upon an extreme legal theory of the “unitary executive” that traces back to Alexander Hamilton and which were asserted under the George W. Bush administration to support policies ranging from water boarding to his detainment of individuals accused of being terrorists. Whatever textual claims in the Constitution presidents point too, numerous Supreme Court decisions have refuted the unitary executive theory and at least since the advent of the New Deal the law recognizes that presidents do not have unlimited control over actors and agencies within the executive branch.
But brushing aside constitutional law and precedent, Trump’s language has become increasing shrill. Months ago it was that the Russians did not interfere in the elections and that claim has largely been rejected by the Senate and special prosecutor investigation. Then it was his campaign did nothing wrong, until Bob Mueller secured several indictments and guilty pleas. Then it was he did nothing wrong but he could nonetheless fire FBI director for any reason and it did not constitute obstruction of justice. Now the language has shifted.
Yes, one still sees assertions of innocence, but increasingly it is that the special prosecutor and investigation are unconstitutional, which it is not, and that is why if the president shuts down the investigation it cannot be illegal (obstruction of justice) because the president has done it. And now it is I can simply pardon myself even if I did act illegally, although I am not a crook. While in arguing this both Trump and Rudy Giuliani still claim the president does not need to issue a pardon for the former because he has done nothing wrong, resorting finally to saying no matter what I did–even if it is illegal–I can simply pardon myself is effectively saying that Trump may have broken the law but I get away with it because simply I can.
So Trump is caught in a Nixon moment. Either he is a crook but can pardon himself, or nothing he does is illegal because he is president. Like Nixon, Trump wants it both ways, asserting his innocence while tacitly admitting he has done something illegal if done by anyone else but because he is president he cannot have broken the law.
