OPINION

Uncharted waters

Donald Trump--who seemed to be trying to intimidate the Justice Department and the special counsel in a New York Times interview last week--is reportedly considering a variety of dramatic moves against the Russia investigation, perhaps including firing special counsel Robert Mueller (something many have been reporting on for some time) and pardoning members of his family, campaign and administration (something which, up to now, appeared to be just the speculation of some of the most hair-on-fire observers).

These are extremely fraught waters for the president to travel in. It's certainly possible that this is just more bluster. But it's also possible he'll act. If so, here's the legal and constitutional situation as I understand it--with the major caveat that much of this is untested. Presidents just haven't done these things.

The issue with firing Mueller is that he was hired, and probably must be fired, by Deputy Attorney General Rod Rosenstein, who is the acting attorney general for all matters in this case as Attorney General Jeff Sessions has recused himself.

Trump could fire Rosenstein. It's not clear, however, whether he could find anyone in the chain of command willing to fire Mueller.

The issue with pardons is a little clearer, at least to begin with. The constitutional power to pardon for federal crimes (even if no one has yet been charged) is essentially absolute, with the main question being whether the president can pardon himself. The constraint on this power is political, not legal.

Pardoning those around him might be great for them, but it wouldn't necessarily help Trump. That's because removing them from legal jeopardy would also remove the protection of the Fifth Amendment: Because they could no longer incriminate themselves, they could be compelled to testify in court or in Congress and be held in contempt if they refused, or charged with perjury if they lied. At least it appears that is the case. What's more, once they had been pardoned, they would have little incentive to stay silent.

The only remedy for inappropriate pardons would be political. Would congressional Republicans move to impeach and convict Trump if he took these steps? We don't know. Would they otherwise move against him? We don't know.

Editorial on 07/23/2017

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