July 24, 2017

Morning Joe brought on Charlie Savage, national security and legal reporter from the New York Times to talk about presidential pardon power, and whether the president can be indicted.

"We don't know in the president can be indicted while he -- there's nothing in the constitution that talks about that. the widespread consensus has been that a presied. that no matter what Bob Mueller finds about Trump, he cannot go to a grand jury and ask for an indictment while the president remains in the White House.

"What's interesting is I used a Freedom of Information Act request to go into the National Archives of the Kenneth Starr Whitewater Lewinski files, and they did a deep study of this question. A nearly 60-page memo that takes on that Justice Department analysis and comes out the other way. It has some really strong arguments for why that's probably not correct. This raises a degree of ambiguity around this question, and as Mueller's team approaches they have to decide are we going to cooperate, are we going to stonewall, are we going to fight? How fullsome are we going to be when we talk to investigators? Are we going to put forth maybe some spin that might veer into alternative facts or just admit that things might not be great?"

"It may be that this ambiguity affects things because even though it's unlikely, I would think, that Mueller would try to indict President Trump, no matter what the facts were, as a matter of prosecutorial discretion, it may be that he has that option if he decides it's necessary."

"This is a classic presidential tweet for this era because of its internal logical inconsistency," legal expert Ari Melber said.

"I point you to the middle of it. Why think of that, the argument being we shouldn't be talking about pardons, which is a direct reference to the first few words of the tweet, it is thing he brought up, which are pardons.

"As for Charlie's reporting, digging into the archives, this is more of a theoretical constitutional question. This is our long-running national law school since January, and the general view of the constitution has been the only person who is not subject to traditional federal indictment is the president, and that is not because he is above the law.

"It's because to the extent that he commits serious crimes in office, he would be indicted by the House and tried by the Senate. It is not really to say that there's no rule," he said.

"It's that the rule is because of his unique position at the top of the constitutional federal system, there's a different process. Number two, Hamilton and those memos from the DoJ from two different parties, i should mention, that Charlie cited, basically refer to the fact that there's a widespread view that if removed from office and indicted afterwards. The whole point here is not that you are above the law. It's that you have a unique role during those four or eight years."

The process, he said, would be indictment by the House and trial by the Senate.

Melber noted that the Federalist Papers talk about a president potentially being prosecuted when he leaves office.

"Obviously if self-pardons exist, and you had a criminal president, that wouldn't work or make any sense because they would have already pardoned themselves. All of that discussion from hamilton on seems to presuppose no self-pardon," he said.

Savage said the Constitution doesn't say that.

"The question is whether this premise that is derived from logic, you can't be -- the conflict of interest to pardon yourself," he said.

"What is that that turns it into an unwritten rule that restricts this otherwise broad power granted to the president to pardon federal offenses? The Justice Department a few days before Nixon resigned stated that it seems like a president shouldn't be able to pardon himself, but there's really nothing behind that sentence other than it just seems like it's wrong, and it's not necessarily clear the things that seem wrong are also the law.

"What we would need to know is for -- is to have a test of this. you would have to have him try to pardon himself, and then some time later someone trying to indict and prosecute him, and then the courts would finally have an opportunity to tell us whether this is what the Constitution means or not," Savage said.

"Unless and until that happens, it's just law professors arguing with each other, and it's one more cloud of uncertainty surrounding what you refer to earlier as the sort of long constitutional law exam that we've been living through for the last six months."

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