Trump and the ‘Rule of Necessity’
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
Following are remarks for President Trump, drafted by The New York Sun as a public service:
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Good evening. In little more than two months we Americans will go to the polls to choose a new Congress. It will be the 116th convened under the Constitution that I have sworn before God to preserve, protect, and defend. The Democrats have made it perfectly clear that if they win control of the House, their first move will be to start impeachment proceedings against me. That makes this an apt moment for me to share with you a sense of my thinking.
So today I want to talk with you about the “rule of necessity.” It is a venerable principle in law. I have been thinking about it because I have come to see that a special prosecutor operating against the president under whose authority he is appointed is a constitutional contradiction — even, when it becomes a politically motivated witch hunt, an outrage. It is calculated to hamstring the president that millions went to the polls to elect.
Therefore the time has come for me to step up. For most of my presidency so far, I have been told I can’t do this. The reason is that I myself could be one of the targets of the prosecutors convened under my authority. The prosecutor may even be targeting my own children. What this means, say the Democrats, is that I have a conflict of interest that makes it inappropriate for me to act. The argument is that I must recuse myself from any question related to the special investigation.
This is where the “rule of necessity” comes in. This isn’t something I’ve made up or pulled out of my hat. You can look it up in a legal dictionary. The simplest definition I’ve found is in Merriam-Webster’s law dictionary. The “rule of necessity,” it says, is a rule “permitting or requiring a judge or other official to adjudicate a case despite bias or personal interest when disqualification would result in the lack of any competent tribunal.”
Mark the way that is phrased. It’s not just that there are circumstances where the rule of necessity “permits” a person to act despite a conflict of interest. There are times when the rule “requires” him to act, even in the face of a conflict of interest. It requires him to act when disqualification — recusal, it’s sometimes called — would result in the “lack of any competent authority.” Meaning a person properly invested with the authority to act.
Though the rule of necessity is a long-standing principle, it is rarely invoked. Most of our 800 or so federal judges can easily recuse themselves. There are scores of other district or circuit judges who can fill in. This is much harder at the Supreme Court; there are only nine justices, and a district judge can’t substitute. Justice Antonin Scalia made that point in refusing, after a duck-hunting trip with Vice President Cheney, to step aside from a case against Cheney.
Recusal, though, is impossible with a president. That’s because there are certain powers the Constitution grants to only the president. He could no more ask someone else to substitute as commander-in-chief than he could ask, say, the Postmaster General to step in and veto a piece of legislation. I couldn’t ask my agriculture secretary to nominate a chief justice. Nor could I ask Mike Pence to grant someone a pardon.
No, if someone is going to be pardoned around here, I’m the only official who can do it. The Chief Justice can’t do it. Nor can the Speaker of the House. Nor the Secretary of State. And if it is deserved, I must — in line with the rule of necessity — do it, even if there is a conflict of interest. I, and I alone, must decide whether the prosecution was just, the jury was correct, the consequences too dire, or mercy and compassion called for.
All of those factors have, in varying degrees, been part of my decision to sign, as I am announcing here that I’ve done this morning, a full and unconditional pardon for Paul Manafort for all the crimes of which he has been accused or convicted or awaiting trial. I want you to know that if the special prosecutor veers from his original mandate, I intend to exercise, whenever the rule of necessity requires, the pardon power — and all my constitutional authorities.
Let me add just one thought. It will be said that this is designed to protect me personally. In truth, it does the opposite. Now that Mr. Manafort has been pardoned, he will have a harder time taking shelter under the Fifth Amendment’s protections against self-incrimination. It will be easier for Congress, in say an impeachment proceeding, to compel Paul to answer questions. It will be harder for him to claim he’d be incriminating himself.
I do not fear what he will say. If I am to be investigated, though, an impeachment proceeding is the only lawful and constitutional way. You will have a lot to say about that when you go to the polls in a few weeks. A vote to give control of the House to the Democrats will launch an impeachment process intended to overturn your decision in 2016. A vote for the Republicans will be a vote of confidence in the growth and jobs by which we will make America great again.
Photo above: President Trump speaking to the press in the Oval Office in 2017; White House photo via Wikipedia.