Can President Trump really pardon himself, as he claimed in a tweet Monday? Legal scholars disagree, but even if he did, it would do little to free him from the scrutiny he is now facing. A pardon could only free him from criminal repercussions. It would have no effect on the more immediate recourse for Presidential misbehavior, impeachment.
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
The Constitution gives the President the power to issue pardons and there is nothing that explicitly says he cannot use that power to pardon himself. Still, even if Trump did pardon himself, it would not do much to change things for him in the short-term.
“The Constitution specifically provides that the pardon power does not prevent — or undo — an impeachment.,” Susan Low Bloch, a law professor at Georgetown University, told Vox News.
Impeachment
The power to pardon is only applicable in the context of a criminal case, and under longstanding Department of Justice legal interpretations, a sitting President cannot be criminally prosecuted while still in office. Article II, Section 2 of the Constitution specifically excludes cases of impeachment from the President’s pardon power. So, scrutiny into his actions could still go forward.
“[T]he pardon power does not prevent — or undo — an impeachment.,” Susan Low Bloch, a law professor at Georgetown University, told Vox News.
If Trump were to pardon himself, calls for his impeachment would certainly grow louder and Republicans friendly to the President would have difficulty defending it. Trump’s lawyer Rudolph Giuliani argued that while the President “probably does” have the power to pardon himself, even he said doing so is “unthinkable” and “would lead to probably an immediate impeachment.” Giuliani added that President Trump was not considering such a move.
The Courts
If the President decided to attempt to pardon himself, it would almost certainly be challenged in court. While the courts have never been formally faced with this question, some legal scholars think they would look dimly on an attempt by the President to pardon himself.
Mary Lawton, acting assistant attorney general, argued in a 1974 memo during the Watergate scandal that a bar on Presidential self-pardons is implicit in the principle that “no one may be a judge in his own case.”
Richard Pildes, a constitutional law professor at New York University School of Law says that courts would likely strike down a Presidential self-pardon based on the broader framework of the principles that underlie the Constitution. “[M]uch of constitutional law is based on reasoning from the underlying design of the Constitution and the structures it creates, and a presidential self-pardon is so radically inconsistent with the Constitution’s commitments to (1) limited government; (2) the separation of powers; (3) and elected officials being accountable to the rule of law that I doubt any court would uphold the legality of a presidential self-pardon,” he told CNBC.
The truth is that no one can say for certain. The question of a Presidential self-pardon is not addressed in the Constitution nor has it been considered by the courts. But, this should not be taken as the “absolute right” to pardon himself Trump claims. The President’s pardon power is at least limited when it comes to matters of impeachment. While the Constitution does not address this question directly, it’s unlikely the Founders would have intended that the President be above the law. As James Madison wrote in Federalist Papers 10, “no man is allowed to be a judge in his own cause.”
In the end, this is mostly an academic question. Trump’s tweet not withstanding, by all accounts the President isn’t seriously considering pardoning himself. That’s not surprising. It’s hard to imagine a scenario in which doing so would improve his situation in any meaningful way — and more likely it would make it worse. It would erode support for him in Congress, intensify talk of impeachment, and probably have little practical effect on investigations into his actions. So, can the President pardon himself? Maybe. But, he would almost certainly come to regret it.