Can presidents pardon themselves?
The answer, surprisingly enough, is not that clear.
But since the New York Times is reporting that the president is considering proactively absolving himself after the breach of the Capitol, the question is still relevant.
This isn’t the first time the issue has come up in recent years. Trump lawyers have previously explored the potential uses of presidential pardons — including whether the president can pardon himself — as part of an effort to undermine special counsel Robert Mueller’s Russia investigation, according to a Washington Post report in July 2017. The summer before, Trump’s attorney Rudy Giuiliani said that the president has the power to pardon himself, although he insisted that doing so would be “unthinkable.”
I first published this story in 2017, a few days after Trump initially floated the possibility of a self-pardon. What I found is still relevant today. I reached out to 15 legal experts then and asked them if the president has the constitutional authority to pardon himself.
As it turns out, this is something of a legal gray area. The overwhelming consensus was that Trump could make a plausible legal argument that his pardoning powers extend to himself, mostly because the Constitution isn’t clear about this — and, frankly, because this is just not a situation the framers expected.
Almost all the experts agreed about one other fact: If Trump did make a move like this, it would be both an admission of guilt and a potential constitutional crisis.
You can read their full responses below.
The president’s constitutional power to pardon “offenses against the United States” is limited only by excluding “cases of Impeachment.” A self-pardon for ordinary criminal offenses does not fall within that exception, on my understanding.
A self-pardon might well be outrageously improper (unless there was the prospect of charges brought by a rogue prosecutor, whom, for some reason, the president could not control by firing him or her), but the response the Constitution creates for such misconduct is impeachment, a political rather than criminal remedy.
It’s a historical anomaly that the pardon power is even in the Constitution, considering that it is derived from royal grants of clemency and the framers of the Constitution, who had just revolted against a tyrannical king, were leery of putting too much power in the hands of a single person. A worst-case scenario like the current crisis is probably one of the reasons why.
That’s why it’s useful to look at Alexander Hamilton’s defense of the pardon power, which he lays out in Federalist No. 74. Hamilton notes that “humanity and good policy” require that such a power ought to remain in the hands of the president — rather than dispersed among the many members of Congress — because “the sense of responsibility” he would feel in having such enormous power over another person’s fate would ensure that he exercised it with “scrupulousness and caution.”
Hamilton also argued that the president would be less susceptible to political pressures and partisanship than Congress in cases like treason or after times of national crisis, when forgiveness and reconciliation might be warranted.
This is obviously not dispositive, since the text of the Constitution doesn’t impose any limitations on pardons except that they can’t be used in cases of impeachment. However, Hamilton’s concept of the pardon power was predicated on the idea that the president would be exercising it for the benefit of another person or the country — not for his own personal gain.
Of course, presidents can deceive themselves into thinking that their bad acts are justified for the common good (Nixon, anyone?), but the point of the pardon power was to bestow mercy on another, not to enrich oneself.
The president is considering pardoning himself as a way to avoid a Department of Justice investigation into his electoral campaign? This is theater of the absurd. The fact that we’re even talking about it is a measure of how far we’ve fallen under Trump.
As is the case with a number of important constitutional issues, the answer to the question here of whether or not the president can pardon himself exists in gray area. Or put more bluntly, the answer is, “Who the heck knows?” This is partly because this is simply not a question we ask ourselves very often.
Let’s take a step back and remember the unique reality we all now inhabit. This is not an issue which the courts have been asked to answer. Why? Because a president is rarely in the position of asking whether he will pardon himself.
The Constitution means whatever the courts say it means. If the US Supreme Court decided tomorrow that the word “emolument” actually means “sunglasses,” then that is the law of the land. Congress would have to ratify an amendment to the Constitution to change or override that interpretation. Article II, Section II of the Constitution provides that the president “shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
Shortly before President Nixon resigned from office, the Office of Legal Counsel issued an opinion in which they cautioned that no one may be a judge in his own case. (This is also a principle of so-called “natural law.”) This meant, the OLC said, that the president cannot pardon himself.
In addition, the language of the clause and Supreme Court case law seems to assume that there is someone giving the pardon (let’s call this person Mr. President) and someone receiving the pardon (let’s call this person Mr. Not President). Put another way, the language seems to assume there is a grantor and a recipient who are two different people.
But a conclusion based on natural law and an assertion that the language “seems to assume” something is hardly a conclusion you want to take to the proverbial bank.
The recent revelation that President Trump has asked his lawyers whether the president of the United States has the constitutional authority to pardon himself is absolutely stunning. President Trump’s inquiry on the scope of the president’s pardon power demonstrates consciousness of guilt. Only if President Trump believes that he may be guilty of a crime would he be interested in pardoning himself. This is not the behavior of an innocent man.
Further, the view that the president has the power to pardon himself contradicts a central tenet of American democracy: “No man is above the law.” In a democracy based on the rule of law, no one may engage in criminal conduct with impunity, including the president of the United States.
I believe the president can pardon anyone, including him or herself. But the pardon cannot stop an investigation and, in a well-functioning democracy, should provoke an impeachment. The Constitution specifically provides that the pardon power does not prevent — or undo — an impeachment. I’m not sure if these Republicans would impeach, but I think that is the only check on the president.
A validity of a presidential self-pardon is an issue of genuine uncertainty. Although theoretically interesting, this is one of those questions that seemed “purely academic” and of no real practical consequence, and yet here we are.
There are two potential checks on the pardoning power that should be noted upfront. First, the Constitution specifically rules out the possibility of pardoning someone for impeachable offenses. Moreover, I think Congress could certainly regard an “abuse” of the pardoning power as an impeachable offense in and of itself (even if we were to think that such a pardon should be regarded as legally valid).
There are fair questions as to what should count as an abuse that would rise to that level, but a self-pardon should certainly do it. In this context, I think a pardon of any member of the Trump family for offenses committed as part of the presidential campaign or its aftermath would be an impeachable offense.
Second, the value of a pardon is that it provides legal immunity from criminal liability for some action, and in order to invoke that immunity, the pardon must be presented to a court in response to a prosecution. At that point, the judiciary would have to make a ruling on whether to accept the pardon as valid.
In the case of a self-pardon, ultimately the US Supreme Court would have to render its own conclusion on whether the courts should accept such a pardon as constitutionally valid, and there would really be no option but to reach an independent judgment on that question and not simply defer to the judgment made by the president.
But substantively, can the president pardon himself? The pardoning power is vested solely in the president, and the constitutional text only identifies a single qualification on that power (does not apply in cases of impeachment).
Our legal tradition nonetheless recognizes implicit limits on that power (e.g., pardon can only be issued after the offense has been committed). There is no well-established legal tradition regarding self-pardons. All that might suggest that the president could do it, and then take his chances in an impeachment.
The text of the Constitution says that the president has no pardon power over impeachment. If the president were to pardon himself to preempt a legitimate investigation into potential criminal wrongdoing, it would have no effect on congressional investigations. In the debates surrounding the framing of the Constitution, the framers were very clear: No one, least of all the president, can be above the law.
If President Trump does this, and it does not immediately provoke an impeachment inquiry — that is, if the Republican majority can excuse such a blatant disregard for the rule of law — then we are in a full-blown constitutional crisis. The Saturday Night Massacre pales by comparison. That was a stupid burglary. This is potential collusion with a foreign power over the most important electoral contest in the United States.
News that the president allegedly asked his lawyers to investigate the viability of a “self-pardon” raises a number of questions, separate and apart from that pardon’s effect on any subsequent criminal prosecution. (The Constitution on its face makes clear that the pardon cannot block impeachment; whether and how it might affect a later criminal prosecution is unclear.)
First, it is surprising this kind of a request — one that ordinarily would arise in the context of a confidential communication between a client and his attorneys — found its way to reporters. If one or more of Mr. Trump’s “close advisers” (the terminology employed by the Washington Post) communicated this information to reporters, did they do so with or without the president’s knowledge? One of the president’s attorneys has already denied the Washington Post’s report as “nonsense,” but that doesn’t reveal much about the original leak.
Moreover, one might wonder if the self-pardon talk is being raised as a method of reining in the special prosecutor’s investigation, or as a means of distracting the special prosecutor’s team by forcing them to consider a series of unprecedented, even if politically far-fetched, legal arguments.
The New York Times’s report that the Trump team is investigating Mr. Mueller’s team for conflicts of interests is consistent with this tactic. The actual merits of these claims matter less than their intended strategic effect, which is to place the special prosecutor and his team on the defensive.
There is, of course, no precedent on whether a president can pardon himself. The question is mostly academic. A president can’t be prosecuted federally while in office, so a pardon would only be of legal significance after he left office, and the validity of it would likely be tested in a federal prosecution.
If such a prosecution seemed a serious possibility, the president would likely make a deal with his successor (Pence?) to grant him a pardon after he left office, just as Gerald Ford pardoned Richard Nixon. (There was suspicion of such a deal, but Ford denied it and there was no evidence of one.)
In any event, a president cannot use the pardon power to immunize himself from impeachment or from prosecution by one or more of the 50 states. Were a president to pardon himself, this would surely trigger prosecution in the states (e.g., for fraud or tax evasion). It would, therefore, be a very foolish decision. The pardon would be admissible evidence of guilt.
“I beg your pardon.” That standard phrasing exposes the oddity of the notion that a person may pardon himself. One simply does not say, “Pardon me,” while standing in front of a mirror. This also holds true in our government — in John Adams’s words, “a government of laws and not of men.”
To permit the elected leader of that government to absolve himself of wrongdoing — perhaps, for good measure, to do so on a weekly basis — would erode the bedrock of our Constitution.
It was based on this reasoning that the Department of Justice Office of Legal Counsel wrote in 1974: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” Days later, President Richard M. Nixon chose to extricate himself from scandal not by self-pardon, but rather by resignation from office. Nixon’s precedent should put an end to the current discussion.
Even if a president were to break from this tradition, it would not free him from all concerns about accountability. Congress’s powers of impeachment would remain undisturbed. The same is true of states’ powers to prosecute, for a president’s power applies only to federal crimes. Self-pardon thus would do little to advance a president’s self-interest, yet it would do much to undermine our national interest.
First, can Trump pardon himself? That’s surprisingly hard to answer. The constitutional text gives no answer, and the convention debates aren’t particularly helpful.
Some people cite the Latin phrase “Nemo judex in causa sua” (one can’t be a judge in his own case) as some kind of answer, but the pardon power is executive, not judicial, so a president isn’t formally a judge in his own case. Plus, we don’t live in Rome, even if the Latin sounds wicked smart.
The bottom line is that the only significant barriers to self-pardons are politics (impeachment) and federalism (state powers).
I don’t think a self-pardon would work. The major question is, What would happen if, after Trump leaves office, investigators determine that he committed a crime covered by a self-pardon? They would very likely bring charges against him anyway, and then it would be up to a judge to decide whether a self-pardon is valid.
The Constitution gives the president the power to pardon, but as is always the case with powers bestowed by the Constitution, the contours of that power are uncertain. A judge would probably worry that if he ruled that a president can pardon himself, future presidents will feel free to commit crimes.
While impeachment might seem like an adequate deterrent, because removal from office requires two-thirds of the Senate, presidents normally don’t need to worry about impeachment. It is possible that a judge would rule that even if a self-pardon would relieve the president of liability for a crime, the act of self-pardoning itself is a crime, obstruction of justice, that would independently create criminal liability.
The president and his legal team may consider throwing the constitutional dice on a self-pardon and winning. Of course, all issues, including ones of this magnitude, come before the court on specific facts, in a particular case, which shape or influence the outcome.
The Trump team is not shaping up the facts to its benefit. The president and his lawyers’ attacks on the attorney general, the deputy attorney general, the former FBI director, and the special counsel, Robert Mueller — along with the reports of their research into the personal background of Mueller team members — leave them open to the charge that they are considering a pardon as an act of obstruction.
This is not a case where Mr. Mueller has brought controversial charges, or where there are other unique circumstances that might arguably support the resort to an unprecedented, extraordinary, and constitutionally uncertain act. All that is so far clear is that the president does not want an investigation, not of himself or of his aides and family members, and he is not ready to let the experienced prosecution team “see where the evidence will lead.”
Perhaps he is genuinely offended by the whole process, which he may believe is rigged and running amok. Others may conclude that he has something to hide. Mr. Trump may be gambling that in pardoning himself, the courts will see things his way. They may not.
In 1993, I wrote an article critical of George H.W. Bush’s decision to pardon six defendants in prosecutions related to the Iran-Contra scandal, an episode in which his own role and prior knowledge (if any) have never, I think, been fully clarified.
I noted that the text of the Constitution did not explicitly limit the pardon power, but added this:
The courts could conceivably determine . . . that Presidents are without power to pardon themselves. General Haig reportedly presented this option to Richard Nixon, who rejected it. . . . [A] President’s capacity to pardon himself would seem to violate flagrantly the cornerstone premise of due process and the separation of powers that no person should be judge in her own cause.
Interestingly, the chief objection to conferring the pardon power on the President was the fear of some critics that the President might use her authority to shield her confederates in treason.
Although reasoning from snippets is problematic, it is worth noting the response of James Wilson to Edmund Randolph’s unsuccessful proposal during the Philadelphia Convention to bar presidential pardons in treason cases. Wilson contended that a pardon power was needed even as to the crime of treason, and if the President ‘himself be a party to the guilt he can be impeached and prosecuted.’ 2 Records of the Federal Convention of 1787, at 626 (Max Farrand ed., 1937).”
The response of Wilson — an influential framer and one of the Supreme Court’s first justices — implies that presidents cannot pardon themselves; if they could, then the scenario he offered would not be a guaranteed option.
In other words, this is a gray area, but the Constitution’s commitment to checks and balances and more generally to the rule of law strongly argue against self-pardoning.