Former President Donald Trump has said that he has the “absolute right” to pardon himself for crimes committed should he return to the White House.
But the Constitution clearly states that pardons are only for crimes or “offenses against the United States,” meaning federal crimes and not state or local lawbreaking.
So far, Donald Trump has been charged only with state crimes in New York. He faces 34 felony counts of falsifying business records related to hush money paid to an adult video star in return for her silence after an alleged extramarital affair.
What happens if he wins back the White House and goes for a pardon?
The Constitution is Fairly Clear About Pardons
The Supreme Court has examined the presidential pardon in detail and has determined that a pardon can come “either before legal proceedings are taken or during their pendency, or after conviction and judgment.”
Presidents cannot pardon themselves or any other administration office holder when it comes to impeachment.
Would the New York Governor Pardon Trump?
Sometimes governors can pardon people depending on their state’s constitution, but New York Governor Kathy Hochul, a Democrat, is unlikely to do so should Trump be convicted in her state.
Trump is being investigated for two potential federal crimes – his actions (or inactions) leading up to and during the January 6 insurrection and for mishandling classified documents. These are crimes that may fall under his pardoning powers since they are offenses against America.
However, he is facing a possible criminal grand jury for allegedly interfering with and trying to overthrow the results of the 2020 presidential election in Georgia.
This would be a local or state crime in which he could not pardon himself.
Nixon Thought About Pardoning Himself But Did Not
The Supreme Court is unclear on whether the president could pursue a self-pardon.
The possibility came up during the Watergate Scandal when President Richard Nixon was on the verge of being impeached.
Amy Howe, writing in the SCOTUS Blog, found a memorandum that would spell bad news for Trump should he be convicted of federal crimes and tried the self-pardon route.
“In a memorandum dated Aug. 5, 1974 – less than a week before President Richard Nixon resigned – acting Assistant Attorney General Mary Lawton of the Department of Justice’s Office of Legal Counsel concluded that the answer is no [whether Nixon could self-pardon],” Howe wrote.
Debate About a Presidential Self-Pardon
In an interview with National Public Radio, Michigan State University law professor Brian Kalt also examined whether Trump could pardon himself. “Allowing self-pardons would violate that principle that no one can be the judge in their own case.”
NPR host Nina Totenberg, in the same interview, added, “Until now, no president has pardoned himself. Nixon contemplated it, but faced with his own Justice Department’s legal opinion that it would be unconstitutional, he didn’t do it.”
Nixon was later pardoned by Gerald Ford in a controversial decision that was made to heal the country but served to enrage some who felt that the scandal-prone president should face criminal action for the Watergate break-in and cover-up.
What Would Trump Do?
Donald Trump is not usually scared off by precedent. He once said he could stand in the middle of Fifth Avenue in New York City and shoot somebody and then get away with it.
He may try to pardon himself and then see what the courts would do – assuming that if the case hit the conservative-led Supreme Court he may get a favorable ruling.
Of course, there are two state criminal cases, one in which he has already been charged and another in which he could be indicted where the self-pardon would not be possible. The two other potential federal crimes – January 6 activities and the mishandling of classified materials – are ones in which Trump could attempt a pardon but be overruled by the courts after a sure lawsuit filed by opponents that would fight such an act.
Hopefully, Trump’s legal team would talk him out of such a drastic and foolhardy step and there will be no attempt at a self-pardon – an act that would be sure to shake the foundations of the country.
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Author Expertise and Experience:
Serving as 19FortyFive’s Defense and National Security Editor, Dr. Brent M. Eastwood is the author of Humans, Machines, and Data: Future Trends in Warfare. He is an Emerging Threats expert and former U.S. Army Infantry officer. You can follow him on Twitter @BMEastwood. He holds a Ph.D. in Political Science and Foreign Policy/ International Relations.
