....Paul Manafort came into the campaign very late and was with us for a short period of time (he represented Ronald Reagan, Bob Dole & many others over the years), but we should have been told that Comey and the boys were doing a number on him, and he wouldn’t have been hired!— Donald J. Trump (@realDonaldTrump) June 3, 2018
With Trump, we can't be sure if a tweet is the product of a frenzy of impulsive scat-flinging as he zig-zags his way through half-assed narratives, or if it reflects a team decision about strategy going forward (for now).
The former is a characteristic defense of certain personality types but, leaving aside that explanation, what might we otherwise make of this tweet?
Trump's recent pardon of Dinesh D'Souza and his talk of pardoning Martha Stewart and commuting Rod Blagojevich's sentence were interpreted by many observers as pardon signaling to those who might otherwise flip on him. Manafort has publicly indicated that he'll hang tough, but I wonder if Trump and his advisors have concluded that Trump must distance himself from Manafort because Manafort is going to flip or because the evidence against Manafort likely implicates Trump.
In either case, Trump might be preemptively distancing and posturing as a victim of both Manafort and a negligent FBI to deny personal culpability. Will it work? Anything works with his supporters. And though his political supporters aren't a court of law, these public maneuvers may be more about avoiding impeachment by convincing congress and the senate that impeachment, even if legally warranted, would be a bad political move for any Republican who goes along with it. If impeachment is averted and either an immunity from indictment or a self-pardon argument also prevails, then avoiding impeachment is all that matters for the survival of Trump's presidency.
Then, this morning, Trump said that he can pardon himself.
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? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!— Donald J. Trump (@realDonaldTrump) June 4, 2018
It seems increasingly likely Trump's team is preparing for the possibility that evidence criminally implicating Trump will come out.
What about the assertion that a sitting president can't be indicted and the claim that self-pardon is the president's right? Though I could find no broad survey of legal scholars on these questions, I've seen enough to believe that scholars disagree on the self-pardon question. Views range from certainty in the affirmative, the negative and everything in between. No court has ever ruled on the specific question.
As for indictment of a sitting president, there has likewise been no judicial ruling on the specific question. Historically, public officials subject to impeachment under Article 2, Section 4 of The Constitution have been indicted or were near indictment without being impeached, but the question was never specifically argued as a legal defense.
In 1973, Spiro Agnew claimed publicly that he couldn't be indicted as a sitting vice president because he was only subject to impeachment and trial in the senate as a remedy for criminal accusations. As undeterred prosecutors neared an indictment, Agnew saw the writing on the wall and negotiated a deal. He pleaded to tax evasion in federal court on the very same day Nixon accepted his resignation. Which came first? Don't know, but it doesn't matter because the question of immunity from indictment while in office wasn't argued and settled in the courts.
Like the president and vice president, federal judges are also subject to impeachment under Article 2.
In 1986, federal judge Walter Nixon was indicted, convicted of perjury & sentenced to 5 years in prison while still on the bench. He wasn't impeached until 1989, when he was 3 months away from release from a halfway house, having expressed his intention to return to the federal bench as an active judge.
In 1983, federal judge Harry Claiborne was indicted for bribery, fraud and tax evasion. Convicted in 1984, he continued to collect a judge's salary in prison until 1986, when he was finally impeached by the house & convicted by the senate.
Neither Nixon nor Claiborne argued that they were immune to indictment, so the question was neither raised nor settled as a legal issue.
In 1981, Judge Alcee Hastings was indicted, tried & acquitted of federal crimes while he was a sitting judge. He was impeached by the house and convicted by the senate 8 years later based on the same accusations for which he'd been acquitted. Rather than ever argue that he was immune to indictment because of Article 2, Hasting argued that he could not be impeached after having been acquitted criminally because double jeopardy obtained. The house and the senate did not accept that argument.