In the waning days of the Trump administration, former President Donald Trump questioned his attorneys as to whether or not he could pardon himself. The idea continued throughout his administration beginning with the Russia collusion investigation, which the Durham Report found to have been based on fabricated evidence until the end.
“As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” he tweeted on June 4, 2018.
Now with Trump facing federal criminal indictments on multiple charges, the question as to whether or not Trump could pardon himself were he to return to office. The problem is the Constitution offers no clear ability for any president to pardon himself, or at a point in the future, herself. Any attempt by Trump to pardon himself would face legal as well as political challenges that could wind up at the Supreme Court.
Former New York City Mayor and Trump attorney Rudolph Guiliani argued that Trump pardoning himself would create a pretext for impeachment.
“The president of the United States pardoning himself would just be unthinkable. And it would lead to probably an immediate impeachment,” Giuliani said.
Democrats have already signaled an interest in impeaching Trump for a third time were he to go ahead with pardoning the January 6 rioters.
The Nixon Precedent: Presidents Cannot Pardon Themselves
Former President Richard Nixon received an advisory opinion from the Justice Department on Aug. 5, 1974, five days before he resigned, that definitively stated that a president could not pardon himself.
“Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” the ruling written by Acting Assistant Attorney General Mary Lawton, the then head of the Office of Legal Counsel, wrote.
Lawton offered an option whereby the president would declare himself unable to carry out his duties in accord with the 25th Amendment thus allowing Vice President Gerald Ford to become acting president and pardon him. Nixon of course chose to resign and let President Gerald Ford pardon him over a month later.
Under a similar scenario Trump could declare himself unable to carry out his duties as president and his next vice president could become acting president and pardon him.
Legal Scholars: Presidents Cannot Pardon Themselves
Some legal scholars warn that recognizing that a president has a power to self-pardon could create a whole raft of legal and constitutional questions that go far beyond Donald Trump and would affect his successors.
Harvard legal scholar Lawrence Tribe agrees with Lawton’s ruling.
“The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself,” Tribe wrote in a 2017 Washington Post column.
“If you play this out, a president before leaving the White House, could, for instance, sell the greatest state secrets, the nuclear codes, for billions of dollars, and then pardon himself on the way out the door,” says Kenneth Gormley, president of Duquesne University in Pittsburgh and author of The Presidents and the Constitution: A Living History, told NPR.
Gormley also stated that an adversarial successor could un-pardon him after he would leave office.
Turley: Trump Could Pardon Himself
Not every constitutional scholar agrees with this.
George Washington University Law School Professor Jonathan Turley reacted to news of the Trump indictments suggesting that Trump could pardon himself if he were to defeat Joe Biden for a second, non-consecutive term.
“While a newly elected Trump could only pardon himself for the federal crimes, it is the federal case that likely represents the greatest threat to him. Moreover, the two state cases would add to Trump’s narrative of facing ‘political prosecutions’ from a ‘weaponized’ legal system on every level. Trump often campaigns on just such a primal level. He knows that a man chased by a dog can spark public outcry — but a man chased by a pack of dogs can spark public outrage,” Turley wrote, noting he would still be subject to state court judgments.
John Rossomando was a senior analyst for Defense Policy and served as Senior Analyst for Counterterrorism at The Investigative Project on Terrorism for eight years. His work has been featured in numerous publications such as The American Thinker, The National Interest, National Review Online, Daily Wire, Red Alert Politics, CNSNews.com, The Daily Caller, Human Events, Newsmax, The American Spectator, TownHall.com, and Crisis Magazine. He also served as senior managing editor of The Bulletin, a 100,000-circulation daily newspaper in Philadelphia, and received the Pennsylvania Associated Press Managing Editors first-place award for his reporting.