The odds are high that the Trump administration may hinge on a Supreme Court decision

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JUNE 4, 2018

President Trump’s ongoing Twitter war against special counsel Robert S. Mueller III and the investigation of the 2016 campaign reached a new point of contention on Monday morning when Trump waded into the waters of what is and isn’t constitutional behavior.

In one tweet, Trump argued that, according to “numerous legal scholars,” he has an “absolute right” to pardon himself to protect against prosecution for alleged criminal acts. In another, he announced that the appointment of the special counsel was itself unconstitutional.

There’s certainly an aspect of this that is just Trump riffing about things he doesn’t like in hyperbolic terms, as he does when he declares various things to be illegal. The last president was an expert in constitutional law; this one doesn’t seem to be.

But Trump’s tweets reinforce an underrecognized point: The likelihood that the fate of the Trump administration will eventually be decided by the Supreme Court is greater than most people realize.

Consider three issues that seem increasingly likely to end up before the court.

Trump pardoning himself. Not to detract from Trump’s legal expertise, but the law regarding whether he can pardon himself is not clear-cut. When the subject was first broached last year, I spoke with three experts, two of whom thought Trump couldn’t pardon himself and one of whom thought he could.

The central considerations here are twofold. First, that the president’s pardon power, as written into the Constitution, is generally unrestricted. Second, that the Constitution doesn’t specifically address whether it applies to the president himself.

Trump and his team are taking that first point and extending it outward to suggest that the lack of limits in the Constitution means that a self-pardon is feasible. This was a point made to me by Samuel Morison, who spent more than a decade in the Office of the Pardon Attorney within the Justice Department.

“There are no constraints defined in the Constitution itself that says he can’t do that,” Morison said.

In 1974, though, the Justice Department noted “the fundamental rule” that no one could serve as a judge in his own case. The late P.S. Ruckman, then a political-science professor at Northern Illinois University who focused on pardon power, cited that idea in speaking with me.

“Supreme Court jurisprudence has always assumed a dichotomy — the granter and the recipient,” Ruckman said. He noted that although the president’s power to pardon had few limits, the presidency itself was limited in duration. An ability to grant a pardon to oneself — which could protect Trump from prosecution over alleged federal crimes for which he hadn’t actually been charged — could extend Trump’s power indefinitely.

The central point, though, was made by Brian Kalt, a law professor at Michigan State University. (Kalt explored this idea thoroughly for Foreign Policy.)

“We can all only speculate what would happen if the president tried to do it,” Kalt told me. “We’re all just predicting what the court would do if it happened, but no one can be sure.” A self-pardon would be challenged, and that challenge would almost certainly end up at the Supreme Court. Ruckman, and Kalt indicated that they thought the court would overturn a self-pardon, but until it ruled, the question would be up in the air.

(That 1974 opinion from the Justice Department noted a workaround, offered to the last president to seriously contemplate a self-pardon: Richard Nixon. Nixon could use the terms of the 25th Amendment to temporarily declare himself incapacitated, a procedure used, for example, when a president is undergoing surgery. His vice president would become president — and could then issue a pardon before handing power back to Nixon.)

Trump rejecting the authority of the special counsel. Trump’s other tweet Monday gets at another interesting constitutional question.

The president doesn’t have the power to fire Mueller under the terms of the special-counsel statute. That power belongs only to Deputy Attorney General Rod J. Rosenstein in this case, following Attorney General Jeff Sessions’s recusal from Russia-related issues.

But an argument has been made — one that Trump and his team probably embrace, given the letter to Mueller released this past weekend — that the existence of the investigation is an imposition on the president.

Writing for Lawfare, Josh Blackman, an associate professor at South Texas College of Law, made that case.

“The President could determine that [the special-counsel statute] violates his Article II powers over removal and foreign policy and order Rosenstein, or someone else in the chain of command, to remove the special counsel,” Blackman wrote. “Make no mistake: Mueller’s firing would likely accelerate the end of the Trump administration. But an order from the Acting Attorney General and regulations published in the Federal Register do not serve as a meaningful bulwark for the President’s exercise of constitutional authority.”

The letter Trump’s legal team sent to Mueller argues that Trump holds a broad authority over executive-branch investigations. In fact, it states explicitly that Trump could take the two actions he tweeted about Monday.

“It remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction,” the letter reads, “because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”

This is not a universally held opinion, to put it mildly. I spoke with Norm Eisen, former special counsel for ethics under President Barack Obama, who noted that there already had been determinations by the court that the president didn’t have the power that Trump’s attorneys claim. The 1998 Morrison v. Olson decision upheld the special-counsel statute, Eisen said, even after considering possible conflicts with presidential authority.

Should Trump nonetheless decide that the special counsel limits his constitutional authority and fire Mueller directly, “the legalities will need to be adjudicated by the courts and, ultimately, by the Supreme Court,” Eisen said.

“Ultimately,” he added, “what that case is going to be about is not just removal power as to Mueller; it’s going to be about the rule of law itself.”

Trump rejecting a subpoena from the special counsel. One thing that might trigger Trump to actively try to undercut Mueller’s authority would be the issuance of a subpoena from the special counsel meant to force the president to testify. Trump’s legal team, including recent addition Rudolph W. Giuliani, a former mayor of New York, has been negotiating what form any testimony from Trump might take. Ultimately, though, Trump might reject what Mueller offers — and Mueller might then need to try to force him to answer.

If that were to occur, Giuliani has argued repeatedly that his team would push back, fighting the subpoena in the courts. Giuliani told Fox News Channel’s Sean Hannity last month that “it’s pretty clear that a president can’t be subpoenaed to a criminal proceeding about him” — an argument that Louis Seidman, the Carmack Waterhouse professor of constitutional law at Georgetown University, told me was “complete nonsense.”

Seidman and I had spoken in February, when the idea of subpoenaing Trump was first broached. I also spoke with Lisa Kern Griffin, professor of law at Duke University, who pointed, once again, to Nixon.

In 1974, Nixon was successfully subpoenaed for tape recordings made in the Oval Office in an inquiry related to the Watergate break-in. He opposed a release of all of the tapes, but the Supreme Court unanimously ruled that they must be turned over. In less than a month, Nixon resigned.

“If the president does not respond to the subpoena or moves to quash the subpoena,” Griffin told me, “there will be litigation in court about the constitutionality of subpoenaing a sitting president.”

Seidman and Griffin agreed about that endpoint.

“Trump will make a bunch of legal arguments, who knows what they are, but I could imagine him saying that the special counsel is illegal, that he has exceeded his jurisdiction, that under Clinton v. Jones the president is entitled to certain accommodations that he has refused to grant,” Seidman said at the time. “He’ll just make something up, and so then it will go to court.”

Back, again, to the Supreme Court.

The natural question that follows is how the justices would decide. The answer is far from clear and depends on which issue is raised and the arguments made relevant to that subject. But it does seem increasingly likely that the influence of the Trump administration ultimately will hinge on a decision from those nine people.


Courtesy/Source: Washington Post