Recently we’ve found ourselves in unchartered waters with regards to Presidential Powers. Trump is stretching the boundaries of the authority of the President with the clear aim of protecting himself from investigation and potential prosecution of both impeachable and indictable offenses.
Several issues jump out at us and demand attention that can only come from the Supreme Court. 1.Can a sitting president be indicted? 2.Can a sitting president issue a pardon to an individual that is a witness in a case in which the president is the subject of an investigation? 3.Can a sitting president pardon himself?
We don’t know the answers to these questions because nothing has ever taken place in our history that has brought them into question. But we can examine them and apply reason and logic to determine for ourselves what the answers should be if democracy is to survive the inclinations of an autocratic authoritarian leader.
The answer to the first question must be yes. A sitting president must be subject to indictment just like everybody else. The office of the President cannot and must not offer a shield to avoid justice. The argument that is made by some is that a sitting president must be impeached first. After he’s impeached and removed from office which is a political solution, he can then be indicted for criminal actions that were the cause of his impeachment. However, this doesn’t guarantee that justice will be served and opens to the door to one man being above the law. Here’s how: Impeachment takes place in the House of Representatives. It serves the purpose of an indictment. A trial is then held in the Senate where the president is either convicted or acquitted. However, if the political climate is so toxic and so tribal that there is no possibility of reaching the necessary 2/3 majority in the Senate required for conviction, then the president could literally commit any crime and avoid prosecution because he could never be impeached regardless of the overwhelming evidence that would normally convict anybody else. He becomes shielded from prosecution by members of his tribe that refused to convict him of any impeachable offense. This results in one man being above the law and not only undermines democracy but establishes tyranny as the rule in America. The framers of the constitution would never have allowed anything of that nature to come into play. Not after fighting a bloody revolution against that very thing. They would hardly have traded one autocratic dictator for another. So if original intent is what we look for in our interpretation of the Constitution, we need to look no further than to recognize that if “All men are created equal” has any meaning at all, then all men must be exposed to justice in the same venue. No man is above the law in America, and that includes the President of the United States. Winning the office of President doesn’t mean that you can now avoid justice.
The answer to the second question must be no. The presidential pardon is a recognized power that the President holds. He can pardon anybody that he chooses. However, he cannot commit a criminal act in the process of issuing that pardon. For example; he cannot accept a bribe as part of a quid pro quo. He cannot accept a million dollars in exchange for a pardon. He cannot be part of a criminal act in the process of issuing a pardon. Similarly, he can fire anybody for any reason he chooses with certain exceptions. He cannot fire somebody for refusing to commit a crime. So all the powers of the office do come with certain limitations. They would have to. Otherwise, our fate as a nation would potentially be left to the imagination of a man with self-serving motives. We don’t know that a sitting president might be that man or not, but we can’t allow the possibility to exist without safeguarding our democracy from that taking place. Therefore, the power of the pardon must be used in ways that don’t benefit the president personally by issuing them to those that might be a witness in a case against him. That would amount to witness tampering and an obstruction of justice. If a pardon is issued to a man that is a witness to a crime that the president has committed, then it becomes impossible to pursue justice in a matter that would lead to indictment or impeachment or both of a sitting President. Once again, the President is using the office as a shield to avoid justice. This is unacceptable in a democracy. It creates an authoritarian autocracy where one man is above the law.
The answer to the final question is a resounding NO! He cannot pardon himself. He would be blocking an investigation where he is the subject. Article 2 sec 2 states; “he shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment”. And that is because “you cannot be a judge in your own case”, and the only case of impeachment where this comes into play is the impeachment of the guy issuing the pardon. The principle comes from Justinian Code dating back to ancient Rome. But you can go back further to Ancient Greece and Aristotle to see where the Justinian Code comes from. Aristotle is the father of logic and he gave us the Law of Non-contradiction. According to Aristotle, first philosophy, or metaphysics, deals with ontology and first principles, of which the principle (or law) of non-contradiction is the firmest. Aristotle says that without the principle of non-contradiction we could not know anything that we do know. Presumably, we could not demarcate the subjective from the objective in any matter of any of the special sciences, for example, biology or mathematics, and we would not be able to distinguish between what something is, for example, a human being or a rabbit, and what it is like, for example, pale or white. Aristotle’s own distinction between essence and accident would be impossible to draw, and the inability to draw distinctions, in general, would make rational discussion impossible. We can’t have rational discussion’s or debates if we can’t agree objectively that the furry thing on the couch is a sleeping cat. According to Aristotle, the principle of non-contradiction is a principle of scientific inquiry, reasoning, and communication that we cannot do without.
There are arguably three versions of the principle of non-contradiction to be found in Aristotle: an ontological, a doxastic and a semantic version. The first version concerns things that exist in the world, the second is about what we can believe, and the third relates to assertion and truth. The first version (hereafter, simply PNC…Principle of Non-Contradiction) is usually taken to be the main version of the principle and it runs as follows: “It is impossible for the same thing to belong and not to belong at the same time to the same thing and in the same respect”. The “same thing” that belongs must be one and the same thing and it must be the actual thing and not merely its linguistic expression. Also, the thing that belongs must belong actually, and not merely potentially, to its bearer.
The second version is as follows: “It is impossible to hold (suppose) the same thing to be and not to be.” Although this version is ambiguous as it stands, it is best understood as the claim that it is impossible to hold the same thing to be F and to be NOT F . In Hamlet, Shakespeare poses the question: “To be, or Not to be”…that is the question”. He doesn’t offer “to be AND not to be” because that’s not a logical possibility. It’s either/or. You either Are or you Are not. You cannot be both at the same time.
The third version is that “opposite assertions cannot be true at the same time”
Aristotle says that PNC is one of the common axioms, axioms common to all the special sciences. It has no specific subject matter but applies to everything that is. It is a first principle and also the firmest principle of all. Like modus ponens, (a deductive reasoning process presented as a conditional: If/Then. If this, then that) PNC does not function as a premise in any argument. Unlike modus ponens, PNC is not a rule of inference. Aristotle says that it is a principle which “is necessary for anyone to have who knows any of the things that are”
Justice must be impartially served or it isn’t justice. No man can be objective about himself. He sees himself through a biased and tinted lens which is always self-serving. Pardoning himself would be an obstruction of justice, because he is the subject being investigated, and he can’t be the investigator and the subject of the investigation at the same time. ( PNC…you cannot be and not be at the same time in the same context) The investigation is tainted by subjectivity when objectivity is required for justice to be served. So the Justinian Code which is based on the first Principles of First Philosophy informs our courts why no man can be the judge in his own case. Blocking the investigation by pardoning yourself when you are the subject of the investigation obstructs justice because it presents a contradiction that cannot stand without subverting justice and that’s the very thing that Rudy Giuliani says the president can do and not be indicted for. An innocent man has no need for a pardon. By pardoning himself. Trump would be admitting to criminal acts that require a pardon or forgiveness. But you cannot objectively judge yourself. Trump cannot be a criminal and NOT a criminal at the same time. A criminal cannot pardon himself. ( PNC again) Furthermore, a pardon is an admission of guilt. A criminal seeks a pardon. That admission of criminal behavior would result in impeachment, assuming that his political party would actually do it and convict him. Rudy is probably too dense to know all of this, since he’s demonstrated his ineptitude as a lawyer and displayed his inability to apply reason or any degree of critical thinking before he opens his mouth and inserts his entire foot up to the ankle, and is arguing that the laws of non-contradiction don’t apply to Trump. That’s a completely irrational position to take and sets the table for an autocratic authoritarian dictator. When laws contradict themselves then we have a breakdown on our legal system. And that would be a miscarriage of justice and an abuse of power. It would place one man above the law. The laws would no longer apply to him because theoretically he can’t be indicted. And since there’s no indication that his party would allow him to be convicted in the Senate, he could literally avoid impeachment and get away with murder. At this time they show no willingness to challenge him, and will in fact go to extremes to ignore or defend his reckless behavior to the extent of attacking the Department of Justice and the FBI itself as well as the intelligence community of the United States claiming a conspiracy among these agencies to frame him as a criminal. Ignoring the fact that the investigation of his campaign is led by a lifetime Republican and career professional with impeccable credentials, Trump, and his surrogates attack the credibility of the investigation which has already yielded 5 guilty pleas, and 35 indictments as being a “witch hunt”. It’s no coincidence that these outrageous attacks on Mueller and the Justice Department and the AG and the Deputy AG are heating up as the investigation begins to point to the Oval Office itself. It’s all getting too close to Trump and even members of his family.
The President can fire people for almost any reason, but he cannot fire somebody for not agreeing to commit a crime for him or for breaking the law in any way, like firing Comey for not letting Flynn off or stopping the investigation of his campaign. The President cannot require loyalty to him. The director of the FBI and the AG have sworn loyalty to the Constitution of the US. He cannot take a bribe of a million dollars to put a guy on the bench. He cannot end an investigation nor can he start one. He can’t launch an investigation against his political enemies and he cannot stop an investigation directed at him. In both cases, it’s an abuse of power.
The most obvious reason why none of these things can take place goes back to the very beginnings of this country. The Framers of the Constitution would NEVER have allowed any loophole to exist that would allow the existence of an autocratic regime to grab hold of power in the United States. We had just fought a revolution to break away from exactly that kind of authoritarianism. They would never allow for a monarchy or autocratic dictator to exact tyranny on the population. That would contradict everything about the constitution. It would nullify Article 3 since the executive would never have to obey the Courts. So, the Revolution and the bloody cost of it, and the drafting of the Constitution would all be meaningless if an autocracy could establish itself. The courts will never allow this to take place. They aren’t going to cut their own throats and destroy the institution of the Judiciary for Donald Trump.
Or would they?