Donald Trump has been exploring options for a self-pardon at least since 2017. Since Wednesday’s attempted coup at the Capitol, the chorus of voices calling for his criminal prosecution has crescendoed. The question of whether the president could escape criminal consequences for his actions and omissions through a self-pardon has again taken center stage.
Could Trump really pardon himself for wrongdoing connected to the Capitol chaos? The short answer is: possibly, but it depends on the timing.
Article II, Section 2 of the Constitution lays out the POTUS’s pardon power:
“The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
This means that pardons may only be issued for federal offenses (not civil wrongs or state crimes), and a pardon cannot override the Congress’s impeachment power. The plain text of the Constitution makes that clear.
Trump may face impeachment and state prosecution the near term. However, crimes relating to his inciting violence and failing to respond appropriately to that violence would likely be prosecuted either as federal crimes or crimes under the D.C. criminal code. In either event, convictions could be wiped away by a pardon from a sitting president.
Two main questions arise as to a potential Trump self-pardon. The first is whether Trump has the power to pardon himself while president. The second is whether Trump could exercise the power of self-pardon before he is criminally convicted.
Let’s talk timing.
As I discussed back when the potential-indictment-du-jour related to Trump’s involvement with Russia and the Mueller investigation, prosecution of a sitting president is largely accepted as an impossibility; the matter was briefed but never argued during the Watergate Scandal and was never tested thereafter.
The Department of Justice has a policy not to prosecute sitting presidents; until Trump, the DOJ policy plus the broad legal assumption that presidents are off-limits was enough to staunch any suggestion of presidential prosecution even during the hottest of political climates.
Certainly, it is possible that the DOJ could choose to prosecute President Trump in the next twelve days, but it isn’t very likely. Criminal prosecutions, if any, will almost surely come after Trump leaves office. Therefore, any Trump pardon would need to be issued by (1) President Joe Biden (after he takes office); (2) President Mike Pence (in the event that Trump is impeached, convicted, expelled from office or resigns and is succeeded by the Vice President before Jan. 20th); or (3) himself, while he is still president, but before criminal charges are brought.
Scenario (1) seems highly unlikely. Even if Biden were to pardon Trump, the timing could prove problematic as I will discuss next.
If scenario (2) occurred, Pence may have the power to pardon his predecessor just as President Gerald Ford pardoned then-former President Richard Nixon for every federal offense Nixon had “committed or may have committed” while in office.
There is some disagreement among legal scholars surrounding Nixon’s pardon. Some argued that the pardon had been improper, as it occurred before any conviction of a crime, and therefore, it exceeded the bounds of Ford’s constitutional authority. Others contended that pardons are properly timed so long as they are issued after the commission of a crime. Neither argument has ever been tested before a court, but it’s bound to be one raised if anyone tries to pardon Trump before he is convicted of a crime.
Then there’s the possibility of a preemptive Trump self-pardon. This pardon would be problematic on two fronts: such an action would test constitutional boundaries of both the recipient and the timing of the pardon power.
Most likely, any attempt by Trump to issue a preemptive self-pardon would be challenged by prosecuting authorities, and make its way through the courts. Because no president has ever attempted a self-pardon before, there is no guiding legal precedent.
The battle would be fought between those who believe a presidential self-pardon is legal—because it’s not specifically forbidden in the Constitution—and between the many, such as University of Missouri School of Law Professor Frank Bowman, who believe it’s illegal, primarily because it offends traditional legal sensibilities of fairness. Professor Bowman, author of Why A Self-Pardon Is Not Constitutional, told Law&Crime Thursday that he continues to believe that a self-pardon is not constitutionally permissible, though the question remains untested.
Former U.S. Attorney for the Southern District of New York Preet Bharara explained in the past that he, too, believes a self-pardon would not withstand legal scrutiny. Bharara told CNN:
I think (if) the President decided he was going to pardon himself, I think that’s almost self-executing impeachment. Whether or not there is a minor legal argument that some law professor somewhere in a legal journal can make that the President can pardon, that’s not what the framers could have intended. That’s not what the American people, I think, would be able to stand for.
Bharara’s interpretation may be shared by many in the incoming administration.
Merrick Garland should have one of his lawyers start on the “no such thing as a frigging self-pardon” brief so it’s ready to go on day #1
— Jennifer ‘Prosecute Incitement and Sedition’ Rubin (@JRubinBlogger) January 8, 2021
Others believe that a preemptive Trump self-pardon would actually make a subsequent federal prosecution more likely.
@benjaminwittes nicely shows that you don’t need a law degree (Ben has none) but just common sense to see why, as I’ve long argued, the pardon that Trump will “grant” himself will actually make his criminal prosecution MORE likely, not lesshttps://t.co/zQhSUOFnHH
— Laurence Tribe (@tribelaw) January 8, 2021
Benjamin Wittes, Editor in Chief at Lawfare, argued in an Atlantic piece, “The first point here is that given the possibility of such a case, the self-pardon would function almost as a taunt to the Justice Department.” While the pardon for anyone else would serve to “abort an incipient investigation immediately,” it would ensure a Trump prosecution post-haste, as the DOJ would not be able to resist the chance to clear up the impotence of an exiting president over the authority of an incoming administration.
President Trump has had his “meddlesome priest” moment since losing the 2020 election in November. The unprecedented attack on the U.S. Capitol as Congress was carrying out the business of democracy has made allies of former opponents. Questions of the 25th Amendment, impeachment, and prosecution all loom, and this time, Trump is less likely than ever to hold the power to save himself.
[image via Andrew-Caballero-Reynolds/AFP via Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.