Bob Bauer, President Joe Biden’s lawyer and former White House counsel to President Barack Obama, said Congress should pass legislation barring the president from pardoning himself.
While on the Stay Tuned with Preet podcast hosted by Preet Bharara, Bauer said the Constitution doesn’t forbid self-pardons and suggested Congress work to make roadblocks to prevent them from happening.
“The Office of Legal Counsel, although the legal analysis was fairly threadbare, indicated that self-pardons were dubious, a dubious exercise of constitutional authority, not an erroneous exercise of constitutional authority,” Bauer said.
While it may be very difficult to get a sitting president to sign legislation that would “put up roadblocks to the exercise of any kind of self-pardon,” Bauer thinks it is in the best interest of Congress in an effort to preserve the balance of powers.
“Congress could put itself clearly on record of its understanding that the president could not thwart the criminal justice process by, in effect, making himself or herself virtually immune from any liability for misconduct in office or, for that matter, any liability for misconduct before taking office,” Bauer said. “I mean, Congress has a stake. It enacts criminal statutes. And the president, with a self-pardon, could literally undercut Congress’s ability to perform its constitutional responsibilities.”
Former President Donald Trump was convicted in May of 34 counts of falsifying business records in New York, and he will be sentenced in September.
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Trump also faces criminal charges for his role in the 2020 election interference case in Georgia, as well as federal charges for his involvement in the 2020 federal election interference revolving around the Jan. 6 Capitol riot, but it is unlikely for a trial to begin before the election. If elected, Trump would only have the power to pardon himself from crimes brought by federal prosecutors.
“The Congress has to take steps to make it painful for the executives to go run completely off the rails,” Bauer said. “The Congress has tools available to do that, all the way from exercise the appropriations power, oversight, investigations, and of course, at the end of it, impeachment.”