Can Trump Pardon Himself? President May Try But It’s Probably Not Legal, Experts Say
President Donald Trump has toyed with the idea of granting himself a pardon, but it is unlikely such an action would be allowed.
Trump has been in the spotlight of several Democrat-led investigations, and broached the idea more than a year before his impeachment in December 2019.
“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 in June 2018.
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? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
Trump’s claim is largely untrue, although the ability to self-pardon has never fully been tested before.
“No president has ever tried to pardon himself,” Louis Michael Seidman, professor of constitutional law at Georgetown University, told the Guardian. “I think the clearest historical analogy is when President Nixon said after he left office that if the president did it, then it wasn’t illegal. Until now, that has widely been taken to be part of the reason why President Nixon had to resign, because he had those views. It now appears that our current president has similar views and that’s just very disturbing.”
Nixon had considered the idea during his impeachment after his lawyer suggested it would be legal. However, a memorandum opinion issued by the Department of Justice on August 5, 1974, stated that a president cannot pardon himself.
Columbia Law School professor Philip Bobbitt wrote in Lawfare that the Consitution does not permit a president to self-pardon as the law would not be executed “faithfully” in such circumstances.
“When a president pardons another person for a federal crime, he is in fact executing the law—the law of the Constitution’s pardon power—despite the fact that he is relieving that person from the execution of the federal penal code,” Bobbitt wrote. “But when the president pardons himself, he assumes a power that is incompatible with, rather than a supplement to, the application of the federal criminal law. That is because as chief law enforcement officer, he could put himself beyond the applicable law simply by withholding his consent to his prosecution by the department he controls while he is president—and then assure himself that he could not be convicted after his term ended—or after impeachment—because he could pardon himself prospectively.”
He added: “Thus the law could not, in the face of such a pardon, be “faithfully” executed, because the pardon itself might be an expression of chicanery and subterfuge—in short, of bad faith.”