The U.S. Constitution grants the president broad authority to pardon those accused or convicted of federal crimes; but, does it allow the president to pardon himself? Nobody really knows for sure.
The question has become relevant following reports Donald Trump and his legal team have been discussing the limits of the president’s pardoning power, including whether Trump has the power to pardon himself.
The internal White House discussion reportedly is part of an effort to undercut the investigation led by special counsel Robert Mueller, who is looking into possible connections between the Trump campaign and Russians who tried to interfere in the 2016 presidential election.
Vast pardon power
The section of the Constitution that deals with presidential pardons is brief: “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
That brevity means the president’s pardoning power is expansive — essentially, the president can issue a full pardon or reprieve [which reduces or eliminates a sentence] to anyone accused or convicted of federal crimes, as long as the move does not relate to impeachment.
Notably, the clause does not mention whether a president can pardon himself. And since no president has ever tried to do so, the issue has never gone to court and is therefore unresolved.
“I think the better arguments are on the side that says he can’t,” says Brian Kalt, a law professor who studies presidential power at Michigan State University. “But anyone who tells you that he definitely can or definitely can’t is talking out of school, because we can’t know until a court actually rules on it.”
Those who argue the president cannot pardon himself say that doing so would implicitly violate the Constitutional principle that someone cannot sit in judgment of themselves. Essentially, they argue, if a president could pardon himself, he would be above the law.
The argument in support of the president being allowed to pardon himself basically amounts to this: the Constitution doesn’t explicitly say he cannot. Those who espouse this view include Judge Richard Posner of the 7th U.S. Court of Appeals, who addressed the issue in a 1999 book on the impeachment of former President Bill Clinton.
“It has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself,” Posner said. “And although this conclusion has been challenged, it is unlikely that the present Supreme Court would be bold enough, in the teeth of the constitutional language, to read into the pardon clause an exception for self-pardoning.”
Never tried before
Trump wouldn’t be the first U.S. president to consider pardoning himself. During the Watergate scandal of the 1970’s, some of President Richard Nixon’s lawyers argued a self-pardon would be legal; however, the Justice Department’s Office of Legal Counsel took the position that he could not.
Nixon eventually decided against pardoning himself. After resigning, Nixon’s successor, Gerald Ford, pardoned him for all federal crimes he “committed or may have committed or taken part in” while in office.
Former President Bill Clinton was also reportedly urged by advisers to pardon himself during the Monica Lewinsky scandal of the 1990’s, but he eventually decided not to do so.
Some have argued that a presidential self-pardon would set a bad precedent, effectively making the office of the president untouchable.
Even if Trump could pardon himself, plenty of political and legal damage could still result from such a decision, warns Kalt.
“First of all, he could still be impeached for pardoning himself,” Kalt says. “Second, he could be prosecuted,” if he were found to have used the pardon to obstruct justice.
Jeffrey Crouch, a professor at American University and author of a book on presidential pardons, also sees a presidential self-pardon as extremely risky.
“An old Supreme Court case suggests that accepting a pardon is also admitting guilt,” he says. “So a president granting a self-pardon may actually be setting himself up for impeachment.”