David Cole is The Nation’s legal affairs correspondent and the author, most recently, of Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law. He’s also the National Legal Director of the ACLU. Interview has been edited and condensed.
Jon Wiener: Firing the attorney general, or forcing his resignation, to stop an investigation of possible crimes by the president, seems like it would be an obstruction of justice. Is it?
David Cole: It depends on what Trump’s motive is. The president certainly has the right to terminate or ask for the resignation of any of his cabinet secretaries, including his attorney general. If he’s doing that in order to interfere with a criminal investigation of the president, then it raises serious rule of law questions, because no one, including the president, should be above the law. But keep in mind that firing Sessions doesn’t actually solve the problem for Donald Trump—because Sessions doesn’t have the power to stop the special counsel investigation. And whoever Trump appointed as Sessions’s successor would face tremendous pressure in confirmation hearings to commit to not interfering with the special counsel. So I don’t think firing Sessions really does Trump any good.
JW: Trump can avoid confirmation hearings for a new attorney general, at least for a while, by waiting for the Senate to go on its August recess and then making a recess appointment. That would avoid confirmation hearings until January 3, 2019.
DC: He could do that. It would be an act of desperation. All of the things that are on the table here—firing Sessions, using a recess appointment to take his place, seeking to fire Robert Mueller, the special counsel—they’re all things that would be acts of deep desperation, the acts of a cornered president. Any one of them would inflict great costs on the president. They would signal that he had determined that those costs were worth it. And there’s only one reason those costs would be worth it: because the facts that the special counsel might otherwise reveal in the ordinary course of his investigation would be so damaging to the president.
If he did any of these things, therefore, there would likely be significant pressure to find alternative ways to get the facts out. People would sense that Trump was seeking to hide something pretty damning, and the American people would certainly want to know what he could be hiding. A bipartisan commission would almost certainly be required. There would be calls for all of Mueller’s work to be disclosed publicly, in a report. The fact that these options are apparently under consideration only underscores that Donald Trump feels like a cornered man. You don’t even begin to go down those roads unless you are seeing your own demise if you don’t take action.
JW: The writers of the Constitution of course were well aware of the possibility that the president might commit crimes, but they also gave the president the power to grant pardons for federal crimes. The president can pardon pretty much anybody. We know from our experience with Bill Clinton: Two hours before leaving office, he pardoned 176 people, including people from the Whitewater scandal, and Marc Rich, a fugitive whose ex-wife had raised $320,000 for Clinton’s campaigns. He also pardoned his own brother. Is there anyone the president can’t pardon?
DC: Well, there’s a lively debate about whether the president can pardon himself.
JW: Strangely, that’s exactly who I had in mind.
DC: He is the only person as to whom there is a question. He can pardon anybody else for a federal crime even if they haven’t yet been indicted, as long as he’s pardoning them for acts that they’ve committed in the past. Of course, if he granted broad pardons of his close family members and high-level campaign managers in order to obstruct the investigation, the American people and Congress would have a right to demand full disclosure of the facts. No president has ever sought to pardon himself. The constitution doesn’t say anything about it one way or the other. But the common law understanding of the pardon power is that it is the authority to exercise mercy, vis-à-vis others, not to be the judge of your own cause. So there’s a strong argument that the pardon power does not in fact include the president. I don’t think we’re likely to see the president try to pardon himself unless he is in a truly desperate position. And if you’re in that much trouble, you’re more likely to resign than to try to pardon yourself and try to hold on. But with this president, never say never.