The Washington Post reported this week that President Trump is considering whether to pardon himself and his associates to undermine Special Counsel Robert Mueller’s Russia investigation and the president this weekend tweeted that he has “complete power” to pardon.
There’s no question that the president’s pardon power is extremely broad, but using pardons to try to undermine or limit Mueller’s investigation could backfire.
As a starting point, when someone accepts a pardon, they lose their Fifth Amendment right and can be compelled to testify. If I were Mueller, as soon as the president pardoned Donald Trump Jr. or Jared Kushner, I would serve them with subpoenas to appear before a grand jury and answer questions that could implicate the president or other Trump associates. For that reason, I expect the president to hold off on pardoning anyone until it becomes absolutely necessary for him to do so.
{mosads}Even if the president pardoned a family member or aide, that would not end their legal liability. The Constitution only grants the president the power to grant pardons “for offenses against the United States,” in other words, federal offenses. Even if the president pardoned his son for federal offenses, state prosecutors could indict him if there was sufficient evidence to show that he committed a state crime. Because many activities violate both state and federal law, that is a distinct possibility, and state and federal prosecutors often cooperate with each other during parallel investigations.
According to the Washington Post, the president has considered the unprecedented step of pardoning himself. Can he do that? Anyone who tells you that there is a definitive answer to that question is overstating things. No president has ever tried to pardon himself, and thus no court has ever considered the issue. The Constitution itself does not suggest any limit to the president’s pardon power for federal offenses except for “cases of impeachment.” That has led some scholars to suggest that it is within the president’s power to pardon himself.
The only time that the question has come up, just days before President Richard Nixon resigned the presidency, the Justice Department’s Office of Legal Counsel concluded that Nixon could not pardon himself because doing so would violate “the fundamental rule that no one may be a judge in his own case.” That said, this rule isn’t in the Constitution and it’s possible to argue that it does not apply.
But as a practical matter, it’s hard for me to conceive of a court upholding a president’s pardon of himself. Think about the implications — can you imagine a president murdering a cabinet member or a federal judge and then pardoning himself a moment later? The specter of a president who is above the law, with the ability to commit any federal offense without recourse, sounds like something out of a horror film or a bad TV movie, not a scenario the Supreme Court would enable. If the president tempted fate by pardoning himself, I suspect that he would damage himself politically for nothing, because the pardon wouldn’t be worth the paper it was printed on.
Renato Mariotti is a former federal prosecutor in the Securities and Commodities Fraud Section of the United States Attorney’s Office in Chicago and he has prosecuted federal obstruction of justice cases. Follow him on Twitter @renato_mariotti.
The views expressed by contributors are their own and are not the views of The Hill.