The more prudent course—politically, at least—would be for Trump to wait until the last day of his final term, and then issue a self-pardon just before midnight, so that anything he’s done while in office and beforehand would be covered. Pretty clever, except for two problems. First, a pardon doesn’t exempt him from criminal jeopardy at the state level. Even if he fires Mueller, regular U.S. attorneys are likely to encounter the Trump name in other investigations (Trump’s former personal attorney Michael Cohen was indicted by the U.S. attorney for the Southern District of New York, whose charging documents effectively named the president as a conspirator). So Mueller might still be a ghost at Trump’s feast for the rest of his time in the White House.
Second, Trump would leave office the day after that midnight pardon—and its consequences would then depend on his successor. A Democratic president might feel compelled by the party base to pursue prosecution despite a pardon. Even a Republican successor might be reluctant to block an investigation that turned up genuine crimes. Thus, while Trump “might want to pardon himself if it looks like he might get prosecuted,” Kalt told me, “what has to give him pause is that it might not work.”
The attorney general for a new administration could begin with an investigation of the pardon itself, then probe pre-pardon conduct, and then indict Trump for any crimes that turn up, arguing that a self-pardon is void. Trump would plead the pardon and move to dismiss the charges—and the issue would swiftly move to the Supreme Court.
Would the conservative majority uphold the pardon?
Former House Speaker Newt Gingrich probably thinks so. He recently explained that a Democratic congressional investigation of Trump after the midterms would let the world know “whether the Kavanaugh fight was worth it”—since a proper Trump judge would block any subpoenas directed at the president.
One wonders how Justice Brett Kavanaugh felt hearing Gingrich’s words. He has an uphill fight to restore his reputation with the public. To be properly cynical, this justice might see a once-in-a-lifetime opportunity to dispel the cloud on his image by voting against Trump.
Adam Serwer: Trump is running out of alibis
And let’s remember how radical a self-pardon would seem. The last presidential pardon, of Richard Nixon, covered “all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”
That’s a highly unusual, perhaps unique, pardon. Ordinarily, pardons—even those granted before trial or indictment—cover specific offenses the recipient has committed or may have committed. Even presidential amnesties—such as Jimmy Carter’s in 1977, which pardoned an entire class of Vietnam War draft resisters—didn’t purport to cover any crime the draft dodgers might have committed, only those related to conscription and service, and only if nonviolent.