Rudy Giuliani: Here's what Trump's talking about when he floats pardoning himself and lashing out at Mueller

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Rudy Giuliani.

• Rudy Giuliani responded to President Donald Trump's tweets Monday asserting he has the right to pardon himself and that the special counsel probe is unconstitutional.
• Giuliani told Business Insider he believes Trump is "making it clear that he's not going to" pardon himself.
• On whether Mueller's appointment was unconstitutional, Giuliani said Trump was simply "throwing out an idea."

President Donald Trump's attorney, Rudy Giuliani, responded Monday to the president's assertions that he has the right to pardon himself and that the special counsel Robert Mueller's probe is unconstitutional.

Trump started an early-morning firestorm when he claimed to "have the absolute right to PARDON myself," even though he said he has "done nothing wrong." The president insisted that "numerous legal scholars" agree with his position, although the legal thinking on the issue is mixed at best.

No court has ruled on whether a president can pardon himself, although the Department of Justice wrote in a 1974 opinion just days before then-President Richard Nixon resigned in disgrace that the president "cannot pardon himself."

In an interview with Business Insider, Giuliani said he believes the president is "making it clear that he's not going to" pardon himself.

"He doesn't have to do it, because he's done nothing wrong," Giuliani said. "If you just look at the Constitution, it says the president can pardon and there are not words of limitation. Somebody could probably argue that there is a limitation, but it hasn't been decided by the court."

Trump's comments came a day after Giuliani said on NBC's "Meet the Press" that it would be "unthinkable" for Trump to pardon himself, which the president could "probably" do, because it would lead to near certain impeachment proceedings in Congress.

Giuliani also told The Huffington Post that Trump is basically immune from prosecution while in office, saying the president would have to be impeached before he could be faced with any indictment. As an example, Giuliani said Trump could've "shot" FBI Director James Comey, whom Trump fired last year, and still not be charged with a crime until he was impeached.

"If a president pardoned himself, he would surely be impeached," Giuliani told Business Insider. "And that's the power. It's also the issue that's come up where I said if he shot somebody, he can't be indicted. ... But he can be impeached, and then indicted."

A Saturday New York Times report detailed a 20-page memo Trump's lawyers sent the special counsel, arguing that Trump could "terminate the inquiry, or even exercise his power to pardon" if he so wishes.

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Donald Trump

"I think the Dowd memo takes the most extreme position," Giuliani told Business Insider, referring to Trump's former lawyer in the investigation, John Dowd. "Some of it, I'm not even sure I agree with completely. I agree with about 80% of it."

Giuliani said if Mueller's team seeks to compel Trump to sit down for an interview by issuing a subpoena, the president's legal team would take the battle to court and assert that the special counsel doesn't have that authority.

"Because they only have the authority given to them by the Justice Department, and the Justice Department has withheld the authority to indict the president or subpoena the president," he said.

Giuliani repeatedly cited a 2000 Justice Department Office of Legal Counsel memo, which followed President Bill Clinton's scandal. The memo said that while the Constitution does not give the president immunity from prosecution, the president cannot be indicted. The federal statute governing the special counsel, meanwhile, says that they "shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice," though there is an exception for "extraordinary circumstances."

Pointing to the memo authored by Dowd, Giuliani said they should have mentioned the Justice Department memo.

Giuliani says the president is 'throwing out an idea'

Shortly after tweeting about his right to pardon himself, Trump tweeted that Mueller's appointment "is totally UNCONSTITUTIONAL!"

"Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!" he continued.

That idea is undermined by a federal judge's ruling last month in a lawsuit filed by former Trump campaign chairman Paul Manafort in US District Court. US District Judge Amy Berman Jackson dismissed that lawsuit and upheld the legality and scope of Mueller's probe.

Giuliani, in response to that tweet, said he thinks the president is "throwing out an idea."

"There are certain people who have argued ... that it is an illegitimate investigation," he said. "Now if an illegitimate investigation of the president amounts to an unconstitutional one, I'd have to do more research on that."

Giuliani, the former New York City mayor and US attorney said Trump "is not a lawyer" but "he's got good instincts, and he's turned out to be right on most of this stuff. "

"So I wouldn't dispute it with him but that's not a legal opinion, like the OLC memo," he said.