President Trump is investigating his own power to pardon.
According to a report published this week by the Washington Post, the president "has asked his advisers about his power to pardon aides, family members and even himself" in connection to the ongoing investigation into his campaign's relationship with Russia.
On Saturday morning, President Trump tweeted claiming "all agree the U.S. President has the complete power to pardon."
Why is it important?
As a country, we've been debating the presidential pardon since before the Constitution was ratified.
A pardon voids all legal consequences of a crime. The power is drawn from Article II Section 2 of the Constitution, which gives the president the "power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." Derived from the British monarchy, pardons were hotly contested during the drafting of the Constitution (Alexander Hamilton, for example, defended it in the Federalist Papers).
The pardon power only applies to federal law. It's a common misconception, but the president can't pardon anyone for any offense under state law—which accounts for the vast majority of crimes and prison sentences.
President Trump can pardon family members, current aides and former White House officials like Donald Trump Jr., Jared Kushner, and Michael Flynn. In fact, according to the Supreme Court decision in Ex parte Garland, the president can pardon them before they have been convicted or even charged.
But there are several important side effects of a presidential pardon:
- Once a person is pardoned, they can't invoke the Fifth Amendment right against self-incrimination in order not to testify in further investigations. Michael Flynn, for example, has taken the Fifth.
- Pardons themselves can be crimes, if they violate other federal laws. For example, Attorney General Jeff Sessions supported an bribery investigation into President Clinton's pardon of financier Marc Reich. If President Trump pardons family members or aides in order to stop the larger investigation, it may be obstruction of justice—a felony.
And when it comes pardoning himself, President Trump's power is anything but "complete."
Can President Trump pardon himself?
The president cannot pardon himself—and attempting to do so may itself be a crime.
In 1974, the Department of Justice Office of Legal Counsel found that “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” (Four days later, President Nixon resigned. President Ford pardoned him a month afterward.)
As law professor Jimmy Gurulé put it, "the view that the president has the power to pardon himself contradicts a central tenet of American democracy: "No man is above the law." No one may engage in criminal conduct with impunity, including the president of the United States." Professor Diane Marie Amann agrees: "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 is likely, in fact, that a self-pardon would be a crime. As Eric Posner wrote, "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."
Though one common view is that sitting presidents are immune from criminal prosecution, it's not clear that's true. And even if a court upholds the protection, President Trump could be prosecuted any time after leaving office. He cannot pardon himself to prevent it.
The president is well within his Constitutional power to pardon anyone for any federal offense, including himself.
No president has ever pardoned himself. No president has even tried and been prosecuted, which would then allow the courts to set precedent on the subject. But there is nothing in the Constitution that limits his power to pardon for federal offenses: The president of the United States "shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." There are no other limitations, and no court readings of this section that would lead us to think there were.
We are governed here by norms, not laws. If President Trump were to try to pardon himself, it would ignite a controversy that could—depending on Republicans in Congress—lead to his impeachment, which in turn would strip him of presidential immunity and expose him to further prosecution.
Which brings us to the one thing more important than the phrasing of the law: the interpretation of the people enforcing it. The members of the House Judiciary Committee oversees law enforcement agencies and impeachment processes. Which is why it's so significant that the chairman of the committee, Rep. Bob Goodlatte, affirmed back in 1998 that "there is also a prevailing opinion that a President of the United States can exercise the power of pardon on
- The Washington Post report on President Trump's interest in pardons
- "Some of President Trump’s lawyers are exploring ways to limit or undercut special counsel Robert S. Mueller III’s Russia investigation, building a case against what they allege are his conflicts of interest and discussing the president’s authority to grant pardons, according to people familiar with the effort."
- Alexander Hamilton's argument for pardons in the Federalist Papers
- "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.
- 15 law professors on the president's pardon power
- "The bottom line is that the only significant barriers to self-pardons are politics (impeachment) and federalism (state powers)."