Trump says he has ‘absolute right’ to pardon himself and calls special counsel unconstitutional

Former FBI Director Robert S. Mueller III, the special counsel investigating Russian interference in the 2016 election, on Capitol Hill in 2017.
Former FBI Director Robert S. Mueller III, the special counsel investigating Russian interference in the 2016 election, on Capitol Hill in 2017.
(Andrew Harnik / Associated Press)

President Trump on Monday asserted two new and widely disputed claims in his continued assault on the Russia investigation: that he has “the absolute right” to pardon himself, and that the appointment of the special counsel for that inquiry was unconstitutional.

The president, who nonetheless insisted on his innocence in each of his morning tweets, wrote in the initial one, “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?”

Just over an hour later, Trump posted, “The appointment of the Special Councel [sic] is totally UNCONSTITUTIONAL! Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!” He later re-sent the tweet with the word “counsel” spelled correctly.


The president laid down his latest lines of attack against the investigation of special counsel Robert S. Mueller III even as the White House was trying to mark Trump’s 500th day in office by focusing on what it sees as his substantive achievements to date. As has often been the case, the president distracted from the message, given his own focus on the investigation of his 2016 campaign’s possible complicity with Russia’s election interference and whether he has sought to obstruct the inquiry.

Trump’s new attack on the constitutionality of the special counsel was particularly puzzling, coming more than a year after Mueller, a former FBI director, was named to the job and chosen by Deputy Atty. Gen. Rod Rosenstein, a Trump appointee.

The president’s claim that he has unfettered power to pardon himself was a response to the controversy stirred up by a weekend report in the New York Times. It said that two of Trump’s lawyers in January wrote a letter to Mueller arguing that the president’s powers are so broad as to make it impossible for him to have obstructed justice.

Many legal experts subsequently challenged that assertion, as well as the idea that Trump can pardon himself — contrary to the president’s subsequent tweet that “numerous legal scholars” attest to his absolute power.

On television interview shows Sunday, Trump’s own lawyer, Rudolph W. Giuliani, was less emphatic on the subject of the president’s pardoning power, suggesting that Trump might have the authority to pardon himself but would be unwise to actually do so.

“He probably does” have the power to pardon himself, Giuliani said on ABC’s “This Week,” though he dismissed the idea that Trump would invoke that power. On NBC’s “Meet the Press,” Giuliani said, “Pardoning himself would be unthinkable and probably lead to immediate impeachment.”


Some congressional Republicans have said that firing the special counsel or pardoning himself would be red lines that the president should not cross. Yet most have also been noticeably blase about Trump’s increasingly explicit public musings that he continues to consider both options.

On Monday, however, one powerful Republican in Congress disputed the president’s contention. “If I were president of the United States, and I had a lawyer that told me I could pardon myself, I think I would hire a new lawyer,” Sen. Charles E. Grassley of Iowa, chairman of the Senate Judiciary Committee, told CNN.

Rep. Jerrold Nadler of New York, the senior Democrat on the House Judiciary Committee, said in a statement: “President Trump is wrong. No president has ever attempted to pardon himself.”

Nadler’s statement also asserted that the nation’s founders believed “the notion of a self-pardon was inherently corrupt, and argued that the Congress would surely act to remove such a president.”

Senate Democratic Leader Charles E. Schumer of New York excoriated Trump on the floor of the Senate on Monday afternoon.

“No president has the power to pardon himself or herself. If they did, the presidency would function above and outside the law, counter to the very founding principles of our country, that we don’t have a king,” Schumer said. A president able to pardon himself, Schumer said, would make the U.S. “virtually a monarchy.”

Several legal experts pointed to a Justice Department legal brief in 1974 — at a time when the Watergate investigation threatened President Nixon — as a decisive statement on the subject. The memo states: “Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.”

Nixon, after he resigned, was ultimately pardoned by his vice president and successor, Gerald Ford.

Yet the president’s legal team has been asserting its broad view on presidential powers since at least December. Trump’s former attorney John Dowd, who has since quit, said then in an interview that Trump “cannot obstruct justice because he is the chief law enforcement officer under [Article II of the Constitution] and has every right to express his view of any case.”

A month later, Dowd and another Trump lawyer, Jay Sekulow, made that argument in their just-disclosed letter to Mueller.

At Monday’s White House briefing, Press Secretary Sarah Huckabee Sanders brushed past questions on the president’s claims about his pardon powers.

“Thankfully, the president hasn’t done anything wrong and wouldn’t have any need for a pardon,” she said. Pushed on whether the president believes he is “above the law,” Sanders declined to answer directly. “Certainly, no one is above the law,” she said.

Sanders also would not comment on new information contradicting her statement last year that Trump did not dictate a statement on his son’s behalf to explain Donald Trump Jr.’s 2016 Trump Tower meeting of top campaign aides and a group of Russians. Trump’s outside attorneys, in their January letter to Mueller, admitted that the president “dictated” the statement.

In the face of repeated questions about the contradicting claims, including her own, Sanders directed reporters to Trump’s outside lawyers.

Trump, in his tweet about pardoning himself, also reiterated his misleading criticism of the Russia inquiry and the investigators working on it. He wrote that “the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!”

Mueller is a registered Republican, as is his supervisor, Rosenstein. Several lawyers on the team are Democrats.

The investigation has thus far netted guilty pleas from five people, including three former Trump campaign advisors, among them Michael Flynn, who became the president’s national security advisor for a short time. Fourteen other people have been indicted, including 13 Russians and Trump’s former campaign chairman, Paul Manafort, as have three companies.

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Stokols is a special correspondent Twitter: @EliStokols


2 p.m.: The article was updated with a statement by Sen. Charles E. Schumer.

The article was originally published at 1:10 p.m.