This article originally appeared on Verdict.
In an earlier column, I wrote that the president’s attacks on the special counsel were not a threat to the rule of law. At least in the United States, anyone—even the target of a criminal investigation—can criticize the way the government goes about its business. It may be foolish, and the president may be well-advised to keep his mouth shut and his thumbs in his pocket, but like everyone else, he has a right to be an idiot. Criticism, even intemperate or false criticism, is never a threat to American values.
In addition, and contrary to what many believe, even if the president were to take steps to confuse or obstruct the special counsel—if he were to lie in an interview, for instance, or direct others to lie on his behalf—that would not be a threat to the rule of law. It would be a crime, no more and no less, and investigators deal with this sort of evasion and interference all the time. They have ample tools at their disposal to discipline targets or witnesses who think they can outsmart federal investigators by destroying or hiding evidence, dissembling to the FBI, or directing others to do the same. It happens a lot and is hardly cause for alarm.
But in the same column, I marked the line in the sand that would be a threat to the Rule of Law, if it were crossed. The president cannot fire the special counsel, since that would place him structurally beyond the reach of the law. If the rule of law means anything, it is that no one can rig the system so that the law cannot touch them. That would place an individual structurally beyond the reach of the law, which is antithetical to the idea of government by a set of preexisting rules rather than government at the whim of whoever might be in office at the time.
As it turns out, I should’ve added two other contingencies to my list, one of which would represent a threat to the rule of law, and one of which would not. The latter is easy to understand, the former—at least for some people—less so.
Delegating the Task of Firing the Special Counsel
Let’s start with the easy one. Just as a decision by the president to fire the special counsel would eviscerate the rule of law, so too would the decision to fire Deputy Attorney General Rod Rosenstein in order to replace him with a lackey who will then fire or otherwise emasculate the special counsel, as the president is apparently considering. Rosenstein, it will be recalled, assumed responsibility for the investigation after Attorney General Jeff Sessions recused himself. The president has repeatedly railed against the decision by Sessions to remove himself, which many people take as evidence that the president appointed Sessions in the hope—if not expectation—that he would rein in the special counsel. Alas, to the president’s dismay, Sessions (quite properly) bowed out, and Rosenstein has shown himself (again, quite properly) perfectly willing to let the investigation run its course.
If Rosenstein were fired, the expectation is that the president would not repeat the mistake he made with Sessions and would appoint someone only after receiving assurances the appointee would bring the special counsel to heel. But it obviously makes no difference if the president takes the forbidden step himself and fires the special counsel, or directs others to take it on his behalf. The result is the same, which is to use his position to place himself structurally beyond the reach of the law. That is the relevant transgression, and how he achieves it is irrelevant. Indeed, the only moral difference is that if he arranges for someone else to act at his stead, he is both a threat to American institutions and a coward. If the president were to fire Rosenstein, it would be, without question, an unpardonable offense.
Pardoning Those Convicted by the Special Counsel
But speaking of pardons, that brings us to another step he might take, and this one—unlike the decision to fire Rosenstein—would not be a threat to the rule of law. Last week, the president pardoned Lewis “Scooter” Libby, the former Bush Administration official who had been convicted of perjury and related offenses in connection with the federal investigation into the leak of the covert identity of CIA officer Valerie Plame. A federal judge sentenced Libby to 30 months in prison, but President Bush commuted the sentence, leaving the conviction intact. And there matters stood until President Trump pardoned Libby last week, which immediately raised the prospect that he might pardon people convicted by the special counsel, and thereby spare them from suffering any legal consequence for their transgression.
This raises an interesting question: Can a lawful decision to spare someone from the consequence of the law threaten the Rule of Law? The answer, in my judgment, is no. If the president were to take the radical step of pardoning those convicted by the special counsel, he would pay an exceedingly high political price. Indeed, some—like Senator Lindsey Graham (R-SC)—have predicted this step would be the beginning of the end of his presidency, which is obviously a political calculation, not a legal judgment. But if the president exercises his constitutional power to pardon his pals, the rule of law would nonetheless be perfectly secure. The rule of law does not require a particular form of punishment. For our purposes, all that matters is that the law be allowed to run its course, and that the community be allowed to register its moral condemnation. The former demands that the investigation be allowed to go forward; the latter demands that the public be permitted to know and pass judgment on the facts. But contrary to what some people seem to think, nothing in the rule of law demands a carceral branding.
To see why this is true, first consider that the president obviously has the constitutional power to pardon his pals. Under the Constitution, he can pardon anyone “for offenses against the United States.” He doesn’t have to ask permission or explain himself. It is the essence of a unilateral executive power. To be sure, we want to believe a president will not abuse this power, but the lawful power itself is entrusted entirely to whoever sits in the Oval Office. Its abuse, therefore, cannot be considered illegal; it is “merely” an abuse of presidential power. And the response to that sort of abuse is at the voting booth (or, in rare cases, impeachment). We start, therefore, with the realization that in pardoning his pals, the president would be acting lawfully.
Can a lawful act threaten the rule of law? To ask the question would seem to answer it, particularly for something like the pardon power, which throws its roots deep into the common law and has existed in one form or another since long before the founding of this country. It seems odd to say that an ancient practice that predates the Constitution is somehow a threat to the rule of law.
But leave aside formalistic arguments. Is there anything in the rule of law that demands a particular type of punishment? I don’t believe so. To begin with, the pardon power is almost always exercised after the investigation and prosecution have run their course and culminated in a conviction. Nothing in the pardon alters or erases these historical facts. Indeed, former Sheriff Joe Arpaio—also pardoned by the president—moved to vacate his conviction for criminal contempt of court after he was pardoned but the federal court refused, pointing out that the pardon does not “erase a judgment of conviction or its underlying legal and factual findings.” It simply prevents the particular type of punishment imposed by the criminal justice system. (Note that there is such a thing as a pre-emptive pardon, but it rarely happens. If the president were to pre-emptively pardon his cronies before the facts were known, that would present a different matter and I would almost certainly come to a different conclusion.)
And if the facts are known and unchangeable, that means the community can still register its moral judgment about what took place. Recall, for instance, that Richard Nixon was pardoned by his successor, President Gerald Ford, after Nixon resigned. By the time he resigned, the House Judiciary Committee had conducted exhaustive hearings and approved three articles of impeachment for obstruction of justice, abuse of power, and contempt of Congress. No one, I hope, remotely believes that Nixon was somehow spared the moral and political consequences of his many misdeeds merely because he was pardoned. He was still, quite obviously, punished. The community—both at the time and in the long arc of history—has registered its moral judgment about Nixon and branded him a crook, despite his oft-quoted protestations to the contrary. Nothing in the pardon could spare him from that assessment.
In the end, when people rail against the possible use of the pardon power, I suspect something very simple is going on. They hate the president and all that he does, and for good reason. And because of their visceral hatred, they want to see him and his cronies not simply punished, but publicly humiliated, and view any limitation on that humiliation as somehow wrong. And to give their hatred special legitimacy in the American system, they exalt it as an assault on the rule of law. But this conflates justice with vengeance. Bloodlust has been at the root of much suffering for thousands of years, in this country and every other. But it is no part of the rule of law.
Joseph Margulies is a Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.