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Over the weekend, one of President Donald Trumps personal lawyers, Jay Sekulow, refused to rule out the possibility that the president would pardon his associates, or even himself, in the Russia investigation. SekulowtoldABCsThis Week: He can pardon individuals, of course. Thats because the founders of our country put that in the United States Constitution: the power to pardon. But I have not had those conversations, so I couldnt speculate on that.

The issue of whether Trump could use his pardon power returns us to thedebateover whether a sitting president may be indicted or whether the Constitution requires impeachment and removal prior to indictment. Assomehave noted, that is almost a purely academic question because it is highly unlikely that Special Counsel Robert Mueller would indict Trump while still in office. In any event, there is the potential for post-presidency criminal exposure. In addition, Trumps family members and close associates could also be under investigation. This means Trump could be tempted to insulate them by granting pardons before theyre convicted of anything.

Presidents tend to save their most controversial grants of clemency for the end of their term in order to avoid the ensuing political firestorm while in office. But a Russia-related pardon would be particularly incendiary politically. That may not mean much to Trump given that a defining element of his rise has been his willingness to disregard longstanding norms and upend convention. He has mocked the disabled, attacked a Gold Star family, joked about sexual assault, savaged the free press, and fired the FBI director investigating Russian interference.

Aside from the political dynamics, granting a pardon in the context of the Russia investigation also raises fundamental questions of constitutional law.

Presidential pardon power derives from a specific grant in theConstitution. Article II, Section 2 vests the president with the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. The Presidents pardon power is limited to federal offenses, which include federal prosecutions in U.S. territories like the District of Columbia and Puerto Rico. Clemency requests, which include both requests for a pardon and requests that a sentence be commuted, typically flow through the Office of the Pardon Attorney at the Department of Justice (see the Justice DepartmentsFAQs). The Justice Department evaluates clemency requests pursuant tostandardsset forth in the U.S. Attorneys Manual. However, the president may bypass that process given that it is a power expressly reserved for the president.

A president can prospectively pardon individuals for crimes that have occurred but have not been charged. In the most famous example, President Gerald Ford pardoned Richard Nixon even though he was not under indictment. President Fordsproclamationincluded a full, free and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during his presidency. Similarly, President George H.W. Bush issued full pardons to six people implicated in the Iran-Contra Affair,some of whom still faced trial.

The Nixon pardon was a political disaster that ended Fords presidential honeymoon, but it also sparked a debate among legal commentators about whether it was constitutional. Mark Rozell gives a brief and interestingtreatmentof the debate. Some argued it was beyond the power of the president to relieve a person of criminal liability for hypothetical offenses (see Edwin Brown Firmage and R. Collin Magnumhere). However most sources suggest a prospective pardon is within the presidents constitutional authority. InEx Parte Garland, 71 U.S. 333, 380 (1867), the Supreme Court described the power in broad temporal terms:

The [pardon] power extends to every offense known to the law, andmay be exercised at any time after its commission, eitherbefore legal proceedings are taken, or during their pendency, or after conviction and judgment. (emphasis added).

A 1995 Office of Legal Counsel (OLC) opinionnotesthat presidents throughout U.S. history have asserted the power to issue pardons prior to conviction, and the consistent view of the Attorneys General has been that such pardons have as full an effect as pardons issued after conviction. It cites an Attorney General opinion from the 1850s, which defends the presidents preemptive power on the grounds that the act of clemency and grace is applied to the crime itself, not to the mere formal proof of the crime. Members of Congress have occasionally contemplated a constitutional amendment to preclude a future pardon like Nixon received, which itself suggests Congress acquiesces to the Executive Branchs view. Most legal authorities indicate President Trump has the power to grant prospective pardons for criminal acts not subject to formal charge.

Three days before Nixon resigned, OLC issued anopinionthat [u]nder the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself. Most legal experts supported that view, although the arguments as to why vary from natural law (first principles such as no man can be a judge in his own case) to constitutional structure (a self-pardon would defeat the purposes of Article I, Section 4, which expressly allows officeholders removed by impeachment to be subject to criminal prosecution). A handful of Republican members of Congress cited the possibility of self-pardon as a justification for their votes to impeach President Bill Clinton, which is discussed in the introduction to this Oklahoma Law Reviewarticle. While some doubt remains about whether the president has the authority to pardon himself, a self-pardon is most likely legally ineffective from shielding a president from future federal prosecution.

In its Watergate opinion, OLC also suggested that the president could invoke Section 3 of the Twenty-Fifth Amendment to allow the vice president, in his role as acting president, to pardon the president. If the President declared that he was temporarily unable to perform the duties of his office, the Vice President would become Acting President and as such he could pardon the President. Thereafter the President could either resign or resume the duties of his office, the opinion stated. However, if the president and vice president conspired to launder away the presidents criminal liability, it would trigger a seismic political event. It would also tarnish the vice presidents standing as a politically viable successor in the event of impeachment. However, I have not yet seen a legal obstacle to that kind of scheme.

As for the special counsel, a prospective pardon would have a narrowing effect on his authority, as it would end any criminal jeopardy arising from his investigation. However, provided there are still active leads and targets, the special counsel mandate would continue. It would raise interesting legal questions. For example, a pardoned individual could still potentially serve as an unindicted coconspirator, which triggers benefits to a prosecution such as a hearsayexceptionfor co-conspirator statements.

Congressional investigations serve legislative policy and oversight goals rather than criminal enforcement goals, so a pardon does not end an Article I inquiry. But there could be other counterintuitive effects of a pardon on the ongoing congressional investigations into Russias interference in the 2016 election and whether there was any coordination with the Trump campaign. For example, it could potentially remove federal legal jeopardy in a manner that may defeat an assertion of the Fifth Amendment privilege against self-incrimination. Were Trump to pardon his former national security adviser, Michael Flynn, tomorrow, Congress might be able to get a court order requiring Flynn to testify before the committees because he no longer faces federal criminal prosecution. That court order or resulting congressional contempt finding, in turn, could theoretically be enforced by coercive contempt (i.e., jailing until such time as the witness provides ordered testimony). Because coercion serves process integrity goals rather than criminal goals, that enforcement power probably could not be defeated by another presidential pardon.

The criminal and congressional Russian investigations should proceed with integrity and without interference. With Trump at the helm and his family under scrutiny, pardon power hangs over the investigations like a sword of Damocles. The pardon sword is largely held overhead by a thread made of political, rather than legal, fiber.

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Are There Limits To Trump's Pardon Power? - HuffPost

As part of the National Constitution CentersInteractive Constitution project, leading scholars across the legal and philosophical spectrum find common ground on the Constitutions articles, amendments and provisions. In this essay, Brian C. KaltandDavid Pozen look at how the Twenty-Fifth Amendment seeks to answer questions raised by the original Constitutions treatment of presidential and vice-presidential vacancies and presidential disability.

The Twenty-Fifth Amendment seeks to answer a series of questions raised by the original Constitutions treatment of presidential and vice-presidential vacancies and presidential disability.

First, what happens when a presidential vacancy arises? Article II, Section 1, Clause 6 of the Constitution states that in case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President. The line of succession from President to Vice President is clear, but what exactly devolves on the Vice President? Is it the office of President or just its powers and duties? When President William Henry Harrison died in 1841, Vice President John Tyler forcefully asserted that he had become President. Although Congress accepted this result, some disputed Tylers reading of the Presidential Succession Clause.

Second, what should happen when a vice-presidential vacancy arises? The original Constitution did not provide for filling such a vacancy. Prior to the adoption of the Twenty-Fifth Amendment, one Vice President resigned, seven died in office, and eight took over for Presidents who died in office: all in all, the vice presidency was unoccupied more than 20 percent of the time. This was less of a problem when the office was held in low regard, which it mostly was until the mid-twentieth century. But as the vice presidency began to grow into its modern forma sort of deputy presidencyit became more worrisome for the office to be vacant. These worries were sharpened by Congresss design of the 1947 Presidential Succession Act, which places the Speaker of the House and the President Pro Tempore of the Senate immediately behind the Vice President in line for the presidency, even when they do not belong to the Presidents political party.

Third, what happens if the President becomes unable to discharge the powers and duties of the office? Several Presidents suffered debilitating illnesses and injuries. For weeks and months at a time, the country was left without effective or accountable presidential leadership. Article II, Section 1, Clause 6 provided for the Vice President to step in when the President had an inability to discharge [his] powers and duties, but it provided no decision-maker, no procedures, and no definition of inability. Nor did it make clear whether the Vice President would act as President only until the President recovered, or instead would become President for the duration of the term. No Vice President wanted to seem like a usurper. In practice, power was never transferred and presidential inner circles typically concealed the Presidents condition. This pattern came to be seen as increasingly irresponsible with the advent of nuclear weapons during the Cold War; the nation needed a fully functioning presidency at all times. In 1958, President Dwight D. Eisenhower sought to break the pattern by being more open about his health and by entering into an agreement with Vice President Richard Nixon that provided for Nixon to serve as Acting President in the event of presidential inability.

The assassination of President John F. Kennedy on November 22, 1963 brought renewed attention to these questions. Led by Senator Birch Bayh, Congress gave them focused consideration and, in July of 1965, sent the Twenty-Fifth Amendment to the states for ratification. Less than two years later, the necessary thirty-eighth state legislature ratified it.

In response to the first question, regarding presidential vacancies, Section 1 of the Twenty-Fifth Amendment formalizes the Tyler precedent. It confirms that when the President is removed from office, dies, or resigns, the Vice President becomes President. When President Nixon resigned in 1974, Vice President Gerald Ford became President under Section 1.

In response to the second question, regarding vice-presidential vacancies, Section 2 of the Twenty-Fifth Amendment requires the President to nominate a replacement Vice President when that office becomes vacant, subject to confirmation by a majority of both the House and Senate. In 1973, Gerald Ford became Vice President through Section 2 after Vice President Spiro Agnew resigned. When Ford took over the presidency the following year, he promptly invoked Section 2 to nominate Nelson Rockefeller to fill the resulting vice-presidential vacancy.

In response to the third question, regarding presidential inability, Sections 3 and 4 of the Twenty-Fifth Amendment establish two procedures for transferring authority to the Vice President as Acting President. Building on the Eisenhower-Nixon precedent, Section 3 allows the President to transfer authority temporarily, by submitting a written declaration that he is unable to discharge the powers and duties of his office. The President can reclaim those powers and duties later by submitting a second declaration to the contrary. President Ronald Reagan (once) and President George W. Bush (twice) transferred authority to their Vice Presidents under Section 3 for a matter of hours while they underwent planned surgeries.

Section 4 addresses the dramatic case of a President who may be unable to fulfill his constitutional role but who cannot or will not step aside. It provides both a decision-maker and a procedure. The initial deciding group is the Vice President and a majority of either the Cabinet or some other body that Congress may designate (though Congress has never done so). If this group declares a President unable to discharge the powers and duties of his office, the Vice President immediately becomes Acting President. If and when the President pronounces himself able, the deciding group has four days to disagree. If it does not, the President retakes his powers. But if it does, the Vice President keeps control while Congress quickly meets and makes a decision. The voting rule in these contested cases favors the President; the Vice President continues acting as President only if two-thirds majorities of both chambers agree that the President is unable to serve.

Section 3 and (especially) Section 4 are long and complicated by constitutional standards. Nevertheless, they leave a number of issues unsettledmost significantly, what counts as presidential inability. At the Constitutional Convention in 1787, delegate John Dickinson asked, What is the extent of the term disability in the proposed presidential succession clause, and who is to be the judge of it? No response is recorded. By giving the President, Vice President, and Congress important and distinct roles, the Framers of the Twenty-Fifth Amendment went a long way toward answering the second part of Dickinsons question, rather than try to resolve the first part.

Brian C. Kalt is Professor of Law and The Harold Norris Faculty Scholar at Michigan State University College Of Law. David Pozen is Professor of Law at Columbia Law School.

For further discussion between Kaltand Pozenon the Twenty-Fourth Amendment, read the following Matters Of Debate:

The Unusual, Imperfect, Excellent Twenty-Fifth Amendment By Brian C. Kalt

The Deceptively Clear Twenty-Fifth Amendment By David Pozen

Filed Under: 25th Amendment

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Interactive Constitution: The Twenty-Fifth Amendment - Constitution Daily (blog)

With the news cycle centered on Russia and Republican health-care flops, Attorney General Jeff Sessionss swift and quiet assault on the Fifth Amendment has gone largely unnoticed. In a reversal of one of the few conservative legacies of the Obama administration, the Trump Justice Department plans to restore the ability of police to seize money and property from suspected criminals without due process. The Department of Justice formally announced on Wednesday that it will roll back heavy restrictions imposed on law enforcement by former Attorney General Eric Holder, and thereby encourage law enforcement to plunder private property and cash in order to . . . fund law enforcement.

The process of civil asset forfeiture, referred to in Sessionss order as federal adoptions, has long attracted criticism from proponents of civil liberties. The process allows police to seize property that they suspect may have been illegally obtained. It involves local government essentially stealing from citizens who have not yet been tried for or found guilty of a crime, and it seems to directly violate the due process guarantees within the Fifth and Fourteenth Amendments. In a few notable cases, such as that of small-business owner Lyndon McLellan from North Carolina and college student Charles Clarke, citizens have been robbed of hundreds of thousands of dollars without so much as being charged with a crime. The practice emerged during Prohibition and has exploded during the War on Drugs, evolving into a multibillion dollar industry for the police state.

House Republicans Justin Amash and Darrell Issa have rightly slammed Sessionss reinstatement of the practice. Amash derided the Justice Department order as unjust and unconstitutional, while Issa called once again on Congress to pass the Due Process Act, which he reintroduced in the House earlier this year.

But this is not enough. The party of small government and individual liberty must act as such and condemn the Justice Departments foray back into the murky, abusive, and authoritarian waters of asset forfeiture.

This is not your usual political mudfight. Indeed, before you cry Never Trump! consider, first, that the congressman who has most vocally denounced the practice, Darrell Issa, has been quite friendly with Trump. Moreover, opinions on this matter do not break down neatly along partisan lines. Before she was known as the eternally silenced, intersectional, resistance-princess-in-waiting, Kamala Harris was the relatively lackluster attorney general of California. And, despite selling herself as a progressive from Berkeley, Harris became famous for continually overlooking prosecutor misconduct and youve guessed it for becoming one of the countrys most aggressive proponents of civil asset forfeiture.

Harris was not merely doing her job. In 2011, she actively fought a California bill that would have curbed civil asset forfeiture. Four years later, she sponsored a bill to expand the abilities of prosecutors to seize assets of those charged with a crime prior to the commencement of criminal proceedings. That year, the state stole $50 million worth of private property and funds from California citizens.

To rebuke the Reagan legacy, Harris has billed herself as smart on crime rather than the Sessions-adopted tough on crime. In practice, their ideologies are reflective of the same, constitutionally hostile statism that conservatism must reject.

Thankfully, many conservatives do. Justice Clarence Thomas has excoriated the practice, describing it as policing for profit and calling into question its constitutionality. Indeed, as recently as last month, Thomas called upon the Court to reconsider whether their rulings on the matter are consistent, a concern that was reflected in Senator Mike Lees castigation of the DOJs order today. Rand Paul cited the Fifth Amendment in his condemnation of the order. Marco Rubio will likely also denounce the bill, as his historical opposition to civil asset forfeiture has been so strong that it led him to refrain from voting to confirm Loretta Lynch, who backed the practice, as attorney general. Senator Mike Crapo has also stood with Lee to call on the DOJ to reform it.

Alas, there seems to be a bipartisan momentum against reform. In four years, Donald Trump may very well face Harris in his quest for reelection. If so, Harris is bound to amplify the Democrats recent return to defending civil asset forfeiture, which began with the replacement of Eric Holder with Loretta Lynch, and has more recently continued with Harriss Senate colleague, Dianne Feinstein, floating legislation to bring even cryptocurrency back into the purview of forfeiture. Americans of all political persuasions deserve a good deal better than this.

READ MORE: Editorial: Jeff Sessions Should Drop His Expansion of Civil Asset Forfeiture Civil Asset Forfeiture: Where Due Process Goes to Die Justice Thomas Defends Victims of Policing for Profit

Tiana Lowe is an editorial intern at National Review.

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On Civil Asset Forfeiture, Jeff Sessions Is the New Kamala Harris - National Review

A federal appeals-court panel has overturned the convictions of two former Rabobank traders in the scandal over attempted manipulation of the London interbank offered rate, or Libor, saying the men's Fifth Amendment right against self-incrimination had been violated.

The three-judge panel of the Second Circuit U.S. Court of Appeals in New York dismissed the charges against Anthony Allen and Anthony Conti, both former Rabobank traders who were convicted on conspiracy and wire-fraud charges in November 2015.

In a unanimous 81-page ruling Thursday, Second Circuit Judge Jose Cabranes wrote that the two men's convictions were tainted because a witness against them had been aware of testimony authorities in the U.K. had forced them to provide. Essentially, that testimony was used against them, Judge Cabranes wrote, and it was "not harmless beyond a reasonable doubt."

The ruling is a blow to authorities' attempt to pursue the traders and bankers involved in the scandal over Libor, a key interest rate that international banks charge each other and a global benchmark underpinning the costs of hundreds of trillions of dollars of financial products.

More than a dozen major banks allegedly rigged Libor to benefit themselves and have paid billions of dollars in fines and settlements. At least nine people, including Messrs. Allen and Conti, have been convicted or pleaded guilty to Libor-related charges in the U.S. and the U.K. Rabobank agreed in 2013 to pay more than $1 billion in settlements to U.S., U.K. and Dutch authorities, including a $325 million settlement with the U.S. Justice Department.

Write to Michael Rapoport at Michael.Rapoport@wsj.com

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Appeals court scraps Rabobank traders' convictions - MarketWatch

NEW YORK The head of an advanced-materials manufacturer said he met with President Trumps chief strategist, Steve Bannon, on Monday to persuade him that the United States should nationalize the countrys only mine of rare earth minerals, which are used in military applications.

The staff understood the urgency of the matter, Michael Silver,chief executive officer of closely held American Elements Corp., said in a phone interview after his White House meeting, which he said was also attended by presidential deputy assistant Sebastian Gorka and White House Chief of Staff Reince Priebus.

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The rare-earth mining operations in Mountain Pass, Calif., the last remaining assets of bankrupt Molycorp Inc., were bought in June by a group that drew objections from rival bidders, who said the winner has ties to the Chinese government.

The mine should be converted to a national laboratory dedicated to rebuilding Americas rare-earth mining industry so the world knows it is safe to build high-tech manufacturing plants in the US, Silver said.

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The production of rare-earth minerals used in applications from hybrid electric cars to iPhones and military hardware such asnight-vision goggles and guided weapons is dominated by low-cost Chinese companies. Molycorp Minerals and its parent, Molycorp Inc., filed for bankruptcy in 2015 after prices for the minerals fell below the mines costs to produce them.

Silver said he was invited to brief the president on the issue on Tuesday. The White House didnt respond to requests for comment.

Silver said hes proposing the US government apply the Takings Clause of the Fifth Amendment and acquire Mountain Pass by eminent domain.

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Any attempt to make the mine commercially viable would fail because no one can compete with China, which accounts for almost all the worlds rare-earth production, Silver said.

The perception is the only place in the world you can go for reasonably priced rare earth materials for your product is in China,he said. You have to change that perception.

Los Angeles-based American Elements manufactures metals and chemicals andhas a catalog of more than 15,000 products, according to its website. Silver said his company did business with Molycorp before its Mountain Pass became idle. Silverwas among the first Americans to set up a production and distribution supply chain from rare earth mines in Inner Mongolia and China to North America and Europe, according to documents on the company website.

The sale of Molycorps last remaining assets to one of two groups of creditors that had feuded over the facility was approved after complaints that the winning bidder, which is majority-owned by JHL Capital Group LLCand QVT Financial LP, had recruited an affiliate of Shenghe Resources Holding Co., which allegedly is tied to the Chinese government.

JHL Capital founder James Litinsky, who has been helping lead the effort to revive the mine, declined to comment.

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Trump urged by CEO to nationalize the only US rare-earths mine ... - The Boston Globe