It is a mistake to twist the Constitution in order to fashion a weapon to punish Donald Trump.
Philip Bobbitt is the Herbert Wechsler Professor of Jurisprudence and Director of the Center on National Security at Columbia Law School and Distinguished Senior Lecturer at the University of Texas. He is a Fellow of the American Academy of Arts & Sciences and a former trustee of Princeton University. He has served in all three branches of government, during seven administrations, most recently as a member of the External Advisory Board of the CIA. He has published ten books, chiefly on U.S. constitutional law, nuclear strategy, and the history and evolution of the State. His most recent work is Impeachment: A Handbook (with Black, New Edition) (2018).
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Trying Donald Trump after he has left office would be to subvert the law in an effort to punish someone who subverted the law.
The controversial member of the president’s impeachment defense team argues that the withholding of military aid to Ukraine did not violate the Impoundment Control Act.
The House should subpoena those witnesses whose testimony would speak to the president’s personal culpability in the withholding of appropriated military assistance to Ukraine.
There are ... incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it. Among these, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. The President cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office ...
Joseph Story, Commentaries on the Constitution of the United States, § 1563 (1833)
Laurence Tribe has proposed a novel argument to assert that a sitting president can be indicted. Because I feel so strongly otherwise, and because I have such regard for Professor Tribe, I want to reply to his claims.
There appears to be some confusion surrounding the question of whether a president can pardon himself. There are many judgments to be drawn from the familiar forms of legal argument—history, text, structure, prudence, doctrine and ethos—all of which cohere around the conclusion that such a pardon is not constitutionally permissible, a conclusion also reached by the Office of Legal Counsel (OLC). These arguments are discussed in more detail in “Impeachment: A Handbook,” by Charles L. Black, Jr. and Philip Bobbitt, forthcoming from Yale Press in September.