Gingrich’s Defense of a Self-Pardoning Administration: From Bad (12.19) to Much Worse (12.21)

On the Diane Rehm Show of 12.19.16, former Speaker of the House Gingrich offered that a Trump Administration could simply pardon its own advisors to remove those advisors’ unlawful conflicts of interest:

I think in the case of the president, he has a broad ability to organize the White House the way he wants to. He also has, frankly, the power of the pardon. I mean, it is a totally open power, and he could simply say look, I want them to be my advisors, I pardon them if anybody finds them to have behaved against the rules, period. And technically under the Constitution he has that level of authority.

An administration like this would be – not merely technically, but in fact – a lawless one (where law was used to negate the demands of the law).

Two days later, Gingrich repeated his assertion that a president could act this way (revealing it as a trial balloon of sorts, “I’m not saying he should. I’m not saying he will’):

The Constitution gives the president of the United States an extraordinarily wide grant of authority to use the power of the pardon. I’m not saying he should. I’m not saying he will. It also allows a president in a national security moment to say to somebody, “Go do X,” even if it’s technically against the law, and, “Here’s your pardon because I am ordering you as commander-in-chief to go do this.”

Under this reading of the Constitution, what couldn’t a commander-in-chief do, in the name of national security?  The answer is that there is nothing he could not do, or (affirmatively formulated) that he could do anything and thereafter pardon those responsible.

Note also the change in circumstances on which Gingrich grounds his remarks: on 12.19 he’s talking about conflicts of interest within an administration, but by 12.21 he’s discussing use of state power under a claim of national security. Perhaps Gingrich thinks the change in circumstances limits the scope of how a president might use the pardon power, but it fact his later example actually expands dramatically the power of the chief executive.

The 12.19 example’s use of pardons might involve wrongful but non-violent business conflicts; the 12.21 example’s use of pardons would exonerate the use of violent force (whether used abroad or domestically) of any possible magnitude against supposed national enemies.

Gingrich’s new second formulation is worse than his first: any location, any amount of force, thereafter subject to pardon by the president of the United States.