Bennett Gershman writes: Barely six months in office, President Donald Trump has unleashed more unresolved constitutional questions than any president in history.
Can Trump be indicted for federal crimes such as obstruction of justice? A federal investigation of Trump by Special Counsel Robert Mueller is considering exactly that question, but the Constitution does not give a definitive answer.
Short of impeachment, can Trump be removed from office? The Constitution’s 25th Amendment says he can be if he is “unable to discharge the powers and duties of his office.” But what if he is perfectly capable of discharging his duties, even if he is doing it corruptly? The Constitution does not provide a clear answer. Can Trump receive “emoluments” from foreign governments? Article II, section 1 of the Constitution says he cannot, but what exactly is an emolument? Does Trump’s retention of his business empire, which he refuses to disgorge, prohibit his continued receipt of financial gain from foreign governments, as a recent lawsuit by attorney generals from the District of Columbia and Maryland allege?
And finally, can Trump issue pardons, even to himself, in order to undermine Mueller’s investigation? The question has never before been squarely considered. To be sure, Article II section 2 of the Constitution gives a president extremely broad pardoning power, and presidents historically have used that power broadly, without needing to justify its use. But can a president’s grant of pardons be so extreme, and so detrimental to the integrity of the Republic as to constitute by itself an obstruction of justice? Indeed, that this question is being raised is a sign of how low this country has sunk since Trump became president. [Continue reading…]