When Ted Cruz was a child, he memorized parts of the U.S. Constitution and visited Rotary Clubs to talk about our foundational document using mnemonics. In 2012, Fox newsman Chris Wallace asked Cruz for his favorite passage. Cruz replied: “Well, Article I, Section 8, which enumerates the powers of Congress. The way we memorized it was TCCNCCPCC Pawn momma ran. Taxes, credit, commerce, naturalization, coinage, counterfeiting, post office, copyright, courts, piracy, Army, war, Navy, militia, money for militia, Washington, D.C, rules, and necessary and proper.”
Damn, the only part of that I could remember was Pawn momma ran.
Cruz always has been proud of his constitutional scholarship, and he wrote major portions of former Governor Rick Perry’s book Fed Up! Our Fight to Save America from Washington. So when President Trump tweeted on Monday that he could pardon himself if indicted by special prosecutor Robert Mueller, it was a little surprising that Cruz chickened out when asked whether Trump could legally pardon himself. Here’s what Trump tweeted:
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
And here’s what Cruz had to say when reporters caught him in a congressional hallway.
Alright, folks. Here's the audio pic.twitter.com/3UhsX3f8Jh
— Haley Byrd (@byrdinator) June 4, 2018
Democrats and some academics, like Jack Pitney, a political science professor at Claremont McKenna College in California, were quick to point out that Cruz had written about the limitations of presidential pardon power in 2015.
He wrote about the pardon power here (see, esp. footnote 79). https://t.co/xNxJpskpLe
— Jack Pitney (@jpitney) June 4, 2018
Cruz’s Democratic challenger in the general election, Beto O’Rourke, also chimed in:
This one takes 18 characters not 18 seconds: nope, POTUS can't. https://t.co/fHNXm3MsDO
— Beto O'Rourke (@BetoORourke) June 5, 2018
Even in his final response to the tempest, Cruz wussed out on the core issue. In a tweetstorm of his own, Cruz called the response “knee-jerk partisanship and dishonest journalism.”
As for me, I still haven't studied the issue at that level of detail, and I don't intend to — because this is nothing more than an academic debate.
— Ted Cruz (@tedcruz) June 5, 2018
Cruz danced around the issue like a barefoot kid trying to get from the community swimming pool to a parent’s car on a hot Texas summer day. However, I’m going to have to give him a bit of a pass because Cruz was not asked about presidential pardon power in general—which is what Cruz has written about before—but specifically whether Trump could pardon himself. And, frankly, that is an unanswered legal question at this point. Even the American Bar Association‘s webpage on presidential pardons says, “it is unsettled whether a president can pardon him- or herself.”
Before moving on to the legal issues involved, let me give you some thoughts on why Cruz would have acted like a political weenie on a constitutional question that has been rattling around Washington since the summer of 2017. Cruz is seeking reelection, and there is no profit for him in ticking off Republican voters.
Trump’s legal team has been working hard to discredit Mueller’s investigation of Trump’s ties to Russia and the possibility that he obstructed justice in firing former FBI director James Comey. Trump has called the investigation a “witch hunt,” and seems to be floating the self-pardon argument with the expectation that enough people agree with him. A CNN survey at the beginning of May found Republicans were turning against the idea of Trump testifying in the investigation. A CBS survey found more than half of Americans believe the investigation is politically motivated.
That question has not been specifically put to Texas voters yet, but a recent Quinnipiac University Poll found that support overall for Trump was tied among state voters at 47 percent favorable/unfavorable. But 88 percent of the Republicans surveyed held a favorable view of Trump as president, as did 40 percent of the independent voters. The Republican base vote in Texas is several percentage points higher than the Democratic base vote. So all Cruz has to do to win reelection is get the GOP base to turn out and then capture a small percentage of the independents. Why risk angering the base when, minus an actual indictment, taking a stand on whether a president can pardon himself is either academic or mere political positioning? However, Cruz probably would not have avoided the debate if the question had been about President Obama.
Nothing in the language of the Constitution specifically forbids a president from pardoning himself. Article II, Section 2 simply states, “He shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” What is clear in that statement is that a president has the power to issue pardons unless someone is impeached, and the president lacks the power to issue pardons for crimes committed in the individual states. Maybe it was an oversight, or maybe the founders could not conceive of a situation where a president might contemplate pardoning himself.
But it happened in August 1974, when Justice Department lawyer Mary C. Lawton was asked to pen a memo on whether President Richard Nixon could pardon himself. Her conclusion was that he could not. She cited the common law idea that a man cannot serve as his own judge. What gets left out of a lot of partisan looks at the Trump situation is that she also described a workaround: A president under the Twenty-Fifth Amendment can declare himself temporarily unable to perform his duties and then have the vice-president as acting president pardon him before he resumes his duties. That is almost exactly what happened when Vice-President Gerald Ford became president upon Nixon’s resignation and then pardoned the former president.
Even if Trump can pardon himself, that would not prevent Mueller from turning investigation materials over to the attorney general of New York. Given the nature of this investigation, if there is a violation of federal law, quite likely there also is a violation of New York law, and Trump could not pardon himself from a state indictment.
Trump lawyer Rudy Giuliani over the weekend on ABC’s This Week said he believes Trump has the power to pardon himself but that the backlash would lead to impeachment. Former New Jersey governor Chris Christie said a self-pardon would create a political problem. “If the president were to pardon himself, he’ll get impeached,” Christie said.
Since last summer, numerous legal scholars have written on the subject. Alan Dershowitz described the issue of self-pardon as undetermined. In an editorial written in July 2017, Laurence Tribe, Carl Loeb, and Richard Painter argued against Trump’s ability to pardon himself. Yesterday, CNBC asked eleven legal experts if Trump can pardon himself and got eleven variations of yes and no.
As a legal issue, the debate can only be answered by the U.S. Supreme Court, and then only if an indictment is brought against Trump and he decides to pardon himself. Given Cruz’s affinity for constitutional issues, though, it is hard to imagine that he has not given thought to this subject—and even an on-the-one-hand-but-on-the-other-hand weasel-word answer would have been better than an I-don’t-know.
While the national media made a big deal out of Cruz taking an eighteen-second delay before answering, to me it was refreshing. Cruz is a politician with a prepared talking point for any question you throw at him, and some answers appear almost verbatim year after year. So anytime he has to search for an answer or think one up on the fly, it’s a positive, even if the end result is a punt.