About the author: Garrett Epps is a contributing writer at The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.
On June 4, President Donald Trump tweeted, “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?”
Trump is not the first president to consider a self-pardon. On August 1, 1974, Vice President Gerald Ford met with Alexander Haig, an aide to Richard Nixon, who raised the possibility that the president might: invoke Section 3 of the Twenty-Fifth Amendment if impeached by the House and step aside temporarily on the grounds that he was “unable to discharge the powers and duties of his office,” then reassume office if the Senate failed to remove him; “plea-bargain” with Congress for censure instead of removal; pardon the other Watergate defendants and himself, then resign.
Or Nixon might resign and Ford might pardon him. In his 2009 book, The Presidential Pardon Power, the political scientist Jeffrey Crouch suggested that the point of the meeting was for Haig to let Ford know that, as president, he would have the power to pardon Nixon before indictment or trial.
Four days later, the Justice Department produced a memo arguing that under “the fundamental rule that no one may be a judge in his own case,” a president could not pardon himself. On August 9, Nixon resigned; a month later, Ford granted him “a full, free, and absolute pardon” for all federal crimes committed during his presidency.
Since then, the idea of a presidential self-pardon has floated on the fringes of constitutional dialogue. Scholars are split on whether the president’s constitutionally conferred power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” includes self-pardon. One side points out, correctly, that the text of the Constitution limits the pardon power in only one respect—“cases of impeachment”—and thus can be read as unlimited in every other way. But the other side notes, also correctly, that there is no mention of self-pardon in the framing or ratification debates, nor in the legal history of pardons. As the late University of Chicago scholar Philip Kurland, who during the Watergate hearings helped the Senate Judiciary Committee conclude that Nixon had obstructed justice, once summed up the literature: “Obviously there’s no answer.”
In 2018, of course, scholars’ views don’t mean much. The current constitutional rule is Donald Trump can do anything he can get away with. The president operates by hotel-burglar logic: If people don’t want to be robbed, they ought to lock their doors; if the Founders didn’t want Trump to do something, it’s their own fault for not writing “the president can’t do this.”
But even if Trump could get away with a self-pardon, would it do him any good?
The most crucial calculation for a self-pardoning president is when the pardon takes place. Suppose that Trump decides to fire Special Counsel Robert Mueller and also pardon himself and his associates for any federal crimes they may have already committed. Everybody’s off the hook.
But there’s a catch: One possible charge against Trump is that he has conspired to obstruct justice—and continues to do so. As of the date of the pardon, past acts of conspiracy could no longer be prosecuted. But if Trump blocked investigations after the pardon, he would be committing fresh acts of obstruction—which the pardon could not have covered. According to Samuel W. Buell, a former federal prosecutor who teaches a seminar at Duke University called “The Presidency and Criminal Investigations,” if the president were prosecuted for the post-pardon acts, his pre-pardon conduct could be used against him in court—for instance, as evidence of “the background and purpose” of any conspiracy he was charged with.
Moreover, the pardon itself may be a criminal act under federal law. “Lawful acts can constitute obstruction of justice when done with a bad motive,” Buell says. “I don’t see why a pardon would be any different, if it’s done for the purpose of keeping the president from being held to account.”
In his wickedly entertaining 2012 book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies, Brian Kalt, a Michigan State University law professor, imagined a president who pardoned himself regularly to cover all illegal acts committed since the previous pardon; each successive pardon would cover the previous pardon. But even an energetically self-pardoning president won’t be president forever. Eventually, one self-pardon would have to be the final one, and thus not pardonable by the president himself. The self-pardoner would be one pardon short of home free.
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.
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.
By the time Nixon was pardoned, everyone knew what he’d been up to during his presidential term. A pardon issued by Trump to Trump, however, if it were to insulate him from federal charges, might have to cover a much longer time period—he’s been running his organization since the early 1970s. And “all offenses” would thus cover a wider range of possible crimes—allegations of sexual assault, for example, and campaign-finance violations, among others. I’ve not been able to find a pardon like it.
Upholding such a broad pardon would be quite a lot to ask of Supreme Court justices, even those who owe their seats to Trump. The five votes he needs might be hard to get.
As Jeffrey Crouch points out, the use of pardons for raw personal and political advantage has become routine since the Nixon years. In late 1992, as President George H. W. Bush prepared to leave office, he and many of his associates were still under investigation by Independent Counsel Lawrence Walsh for their conduct during the Reagan-era operation that sold arms to Iran and illegally funneled the proceeds to guerrillas in Nicaragua. Four defendants had pleaded guilty or had been convicted, and two were facing trial, and new evidence had set off speculation that Walsh might summon Bush to testify before a federal grand jury—creating jeopardy of prosecution for perjury or worse.
A few weeks before Bush left office, the veteran political columnist Dan Schorr wrote a column for The Baltimore Sun, musing on whether Bush was considering self-pardon to spare himself prosecution by Walsh. (He wasn’t, Schorr concluded, while pointing out that legal experts believed that he could.) Writing in the New Orleans Times-Picayune, the columnist James Gill suggested that Bush should resign a day early and allow Vice President Dan Quayle to succeed to the office and pardon his political patron. Gill was joking—but in 2018, that scenario is hideously plausible.
In the event, Bush pardoned all the defendants, those convicted and those awaiting trial, leaving Walsh no leverage with which to make a possible case against Bush. It was effectively a self-pardon, but with no constitutional infirmity.
During the Monica Lewinsky scandal, members of Congress speculated that Bill Clinton might pardon himself. Clinton did not; he survived an impeachment trial and, at the end of his term, issued pardons of the old-fashioned corrupt variety that were aimed less at protecting himself than at rewarding political supporters. President George W. Bush commuted the sentence of I. Lewis “Scooter” Libby, a former aide to Vice President Dick Cheney, who had been convicted and sentenced for lying to federal investigators about the potential release of information identifying an undercover case officer for the CIA. (Trump fully pardoned Libby last April.)
Trump can certainly take the George H. W. Bush route by pardoning his associates, and he needn’t wait until his term is over to do so. But he still wouldn’t be out of the woods. As noted, the pardon power covers only “offenses against the United States,” so states with ambitious prosecutors, such as New York, Illinois, or California, could begin investigations of his conduct against which a federal pardon would provide no protection.
Finally, if Trump were to pardon himself, Congress could still step in and impeach him for abuse of the pardon power—possibly even after he left office. There’s historical warrant for impeachment of former officials. The most famous British impeachment began in 1787, when Parliament brought a bill against William Hastings, who had already resigned as governor-general of India; his trial dragged on for seven years before he was acquitted.
Even if Democrats don’t take control of both the House and the Senate until 2020, they can still impeach and try Trump for “high crimes and misdemeanors” after he leaves office. Conviction would carry no penalty beyond “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Given the horror with which many of his enemies regard him, a Democratic majority might be tempted to drive that stake through Trump’s political career.