July 22, 2017

CAN THE PRESIDENT PARDON HIMSELF? YES HE CAN! Mark Tushnet has it right.

The president’s constitutional power to pardon “offenses against the United States” is limited only by excluding “cases of Impeachment.” A self-pardon for ordinary criminal offenses does not fall within that exception, on my understanding.

A self-pardon might well be outrageously improper (unless there was the prospect of charges brought by a rogue prosecutor, whom, for some reason, the president could not control by firing him or her), but the response the Constitution creates for such misconduct is impeachment, a political rather than criminal remedy.

I think that Congress could impose some procedural rules on pardons under its Necessary and Proper Clause powers, but the power itself is plenary.

And for those saying that this is a sign of how far we’ve fallen, well, yes, but not necessarily the way they mean. People were talking about impeaching Trump before the election results were official. That fact tells us less about Trump than about the people who hate him.

Trump, as I keep saying, is a symptom of how rottenly dysfunctional our sorry political class is. Take away Trump and they’re just as awful and destructive. He just brings their awfulness to the fore, where it’s no longer ignorable. Now they’re willing to play with fire, risking the future of the polity over little more than hurt feelings, in a way that would have been unthinkable not long ago.

Related: Thomas Frank: The media’s war on Trump is destined to fail. Why can’t it see that? “Everything they do, they do as a herd – even when it’s running headlong over a cliff. . . . It happens because so many of them are part of the same class – an exalted and privileged class. They are professionals and they believe in the things that so many other professional groups believe in: consensus, ‘realism,’ credentialing, the wisdom of their fellow professionals and (of course) the stupidity of the laity. This is the key to understanding many of their biases – and also for understanding why they are so utterly oblivious to how they appear to the rest of America.”

Plus: Mueller and Trump Prepare for War with America the Loser.

Watergate ended with a whimper, not a bang. After months of sturm und drang, Richard Nixon finally mounted that helicopter, gave that famous farewell peace sign and flew away. Most Americans were relieved to see him go. Our long national nightmare was over.

If something similar happens to Donald Trump, it will be entirely different. A significant portion of the American public — myself admittedly among them — will be convinced he has been railroaded in a partisan hatchet job. The voters who elected the president are going to feel, at the very least, undermined, more likely betrayed, by their own government and public officials. Many are going to feel this has nothing to do whatsoever with justice and will act accordingly.

The exact results of this mammoth national split are not easy to predict but they could range from massive civil disobedience to outright civil war.

Our political class, oblivious to this — see above — is playing with fire, but it is too foolish and self-obsessed to realize it.