THE PARDON

Legal commentator Toobin examines the power of presidents to pardon others—and perhaps themselves.

“There is…no check or balance on the president’s power to pardon. It is the provision of the Constitution most directly descended from the authority of kings of England,” writes Toobin. His exemplar throughout is Richard Nixon, who might have pardoned those whose work led to his downfall but instead sought precedent that would allow him to pardon himself. Some of his advisers, especially Al Haig, argued that whatever the Constitution does not specifically prohibit is permitted, while a legal opinion from the Justice Department likened self-pardon to a judge conducting his own trial. Nixon negotiated a pardon from Gerald Ford, who had earlier promised the public that he would not grant one; what swayed Ford were documents that Nixon had squirreled away, much as Donald Trump did at the end of his first term. “Seen in this way,” writes Toobin, “Nixon used his papers as a form of extortion—and it worked.” Trump, too, has studied self-pardon, tweeting with characteristic bombast, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” Ford took a shellacking for pardoning Nixon, although Toobin persuasively argues that the pardon wasn’t the make-or-break reason for his defeat in the 1976 election that it has been made out to be. Interestingly, too, Toobin observes that had Nixon looked beyond his close circle of advisers, he would have discovered that the Justice Department “had no intention of prosecuting Nixon,” just as, it seems, the department is walking away from Trump.

A sharp-edged work of legal journalism that will fascinate politics junkies.