Can President Donald Trump pardon himself?

Now that the outcome of the 2020 presidential election is effectively settled, the question I am receiving most frequently is whether President Donald Trump can pardon himself. There is no clear answer to that question because no prior president ever has tried to do that. But there is a strong argument that such a pardon would not and should not be constitutional.

Article II of the Constitution provides the president the power to pardon all accused or convicted of federal crimes. It says that president has the power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

This language imposes some important limitations on the pardon power. The president can pardon only for federal law crimes, never for state law offenses. Even if President Trump can pardon himself, any local district attorney can prosecute the president in state court if crimes were committed and the pardon power will provide no protection. Also, the Constitution is explicit that there cannot be a pardon “in cases of impeachment.” In other words, President Trump cannot be pardoned, by himself or a future president, for any of the events that were the focus of his impeachment by the House of Representatives.

Beyond that, though, the president has the broad authority to pardon anyone accused or convicted of a federal crime. The Constitution sets no other limits on the pardon power. Although it is unseemly, President Trump can issue pardons to members of his family and most expect that he will do so. A pardon can be issued even before charges are brought against a person. For example, President Gerald Ford, upon taking office, issued a pardon to Richard Nixon, even though Nixon never had been indicted or convicted of any crime.

The hard question is whether a president can issue a blanket pardon for himself from all federal criminal liability. Trump has claimed this power. In 2018, in a tweet, he said that he has “the absolute right to pardon myself.” His supporters are urging this. Fox New host Sean Hannity said, “The president out the door needs to pardon his whole family and himself.”

I believe that it would be unconstitutional for a president to pardon himself. The power to “grant pardons” implies that it is something that is bestowed on another. The pardon power existed long before the United States and it always was understood to involve two parties. There are no instances in Anglo-American history where a person pardoned himself.

Moreover, Article II of the Constitution is explicit that the president may receive no benefit from serving in the office except for the salary that he is paid. The ability to grant a self-pardon would be an enormous benefit.

Most of all, a pardon would be inconsistent with the basic principle of the rule of law that no one, not even the president, is above the law. In 1974, the Office of Legal Counsel in the United States Department of Justice issued a written memo explaining that the president cannot pardon himself. It concluded: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” Of course, a Justice Department memo is not legally binding. But it should be remembered that President Trump and his supporters relied heavily on an Office of Legal Counsel memo from the same era that opined that a sitting president cannot be criminally indicted. That memo was the basis for why Robert Mueller would not even express an opinion on whether President Trump had engaged in obstruction of justice.

Of course, there are ways for President Trump to circumvent these limitations. He could resign from office at 11:55 a.m. on January 20 and have newly-installed President Mike Pence issue a pardon. Or Trump could invoke the 25th Amendment and have Pence temporarily take over. During this time, Pence could pardon Trump.

Perhaps none of this will come to fruition. Maybe Trump will gamble that Joe Biden, who seems to care greatly about unifying the country, would not take the divisive action of prosecuting Trump. And if Trump is contemplating running for president in 2024, he might worry about the political implications of a self-pardon.

So much about the Trump presidency has challenged constitutional norms and raised new legal issues. It should not be surprising if his actions on the way out of office do the same.

This story was originally published December 11, 2020 at 5:00 AM with the headline "Can President Donald Trump pardon himself?."