I don’t believe a self-pardon’s gonna fly.
I don’t mean to say that President Donald Trump will not attempt it. He very well might.
I also don’t mean to say that it won’t be a big deal if and when he does attempt it. It will be a very big deal.
I mean, rather, that a self-pardon will not materially decrease the likelihood of his attempted prosecution by the Justice Department after he leaves office, and may even increase the chances of his indictment.
More important, it will probably not result in legal recognition that the pardon power extends to presidential self-forgiveness. To the contrary, if Trump does attempt a self-pardon in the face of a compelling federal criminal case against him, the result is likely to be Supreme Court rejection of the self-pardon’s legality.
The reason has little to do with doctrine. There is a very plausible textual case that the pardon power—which the Constitution extends to all “offences against the United States, except in Cases of Impeachment”—includes, by dint of not excluding, the issuance of a pardon to oneself. The legal scholar Paul Larkin Jr. of the Heritage Foundation recently offered strong reasons not to read into text restrictions that aren’t there—reasons rooted in the absolute nature of the pardon power, which is historically a creature of royal prerogative. There are also compelling reasons to doubt the constitutionality of the self-pardon, including those spelled out in this thoughtful analysis from Frank Bowman III of the University of Missouri School of Law, which focuses on the word grant as understood in the founding era.