On July 22, 2017, President Trump tweeted that he had the “complete power to pardon.” Roughly a year later, he tweeted about his “absolute right to PARDON myself.”
Should he lose his reelection bid to Democratic presidential nominee Joe Biden (Trump’s campaign is currently challenging vote counts in several states), a lame-duck Trump would be well-positioned to finally put these beliefs into action by pardoning himself before leaving office on Jan. 20, 2021.
Why might Trump need to pardon himself? The Mueller investigation (or, as Trump would put it, “the illegal Mueller Witch Hunt”) unveiled several instances of possible obstruction of justice. These allegations, along with potential tax fraud and running afoul of campaign finance laws, are federal charges that Trump has avoided because he is the sitting president. They could return once a new administration takes over.
At this point in his presidency, Trump has the most freedom he will ever enjoy to grant clemency to anyone he would like, including former campaign manager Paul Manafort, former national security adviser Michael Flynn and longtime friend and adviser Roger Stone (whose sentence was commuted, but not fully pardoned). If he pardons these associates, Trump would join three of his four most recent predecessors (excluding Obama) who abused clemency for personal reasons during their final months in office. George H.W. Bush and George W. Bush used clemency to assist political allies (six Iran-Contra defendants and “Scooter” Libby, respectively, although Libby just received a commutation from Bush). Bill Clinton favored helping out wealthy supporters and family members, among others (think Marc Rich and Roger Clinton). However, Trump’s legal vulnerabilities may encourage him to take abusing clemency a step further than Bush, Clinton or Bush.
May Trump self-pardon? Article II of the Constitution contains broad, virtually unlimited clemency language that allows the president to forgive any federal crime. However, the Constitution is silent on the self-pardon question, and there is no example of an American president ever following through on a self-pardon attempt. The case for a self-pardon being constitutionally allowed rests heavily on the principle that the Constitution does not forbid the practice, therefore it should be permissible. Much of the case law on the president’s pardon power upholds a broad clemency power and defers largely to the president’s judgment. The arguments against a self-pardon include the view that the clemency power should be checked by other provisions of the Constitution, and that serving as a judge in one’s own case is generally not recognized by American legal standards.
Should Trump attempt to pardon himself, a Supreme Court case suggests that such a move is akin to admitting guilt. In other words, a self-pardon would ultimately be self-defeating because it would supply the impetus needed by Congress to deploy the ultimate constitutional remedy for abuses of power: impeachment. Of course, Trump has already been impeached once. Would a Democratic House try to impeach him again if he ends up having to exit the White House early next year? Unlikely.
Under these unique circumstances, then, impeachment would seem to be an ineffective deterrent, and therefore a self-pardon might succeed. It is unclear who, if anyone, would have the necessary legal standing required to challenge a presidential self-pardon in court. And even if a challenge was successfully brought, the ultimate decision would likely rest with the United States Supreme Court. How many of its six Republican-appointed justices (including three nominated by Trump himself) would oppose a Republican president’s self-pardon attempt? Unclear.
A less controversial alternative to a self-pardon would be for Trump and Vice President Pence to use the 25th Amendment to achieve the result they want. Trump would temporarily step down from the presidency at some point before the official end of his term, leaving Pence to take over as acting chief executive. Acting President Pence would pardon Trump, who could then become president again or resign from office. If pressed by Trump, would Pence — who may hope to run for president himself at some point — agree to such an arrangement? Unknown.
Assuming Trump’s legal challenges in several states fail to impact the election result, a President-elect Biden might be set to take office in 11 weeks. Before that occurs, Trump will have plenty of time to prepare clemency warrants for any federal offender he wishes. If he is desperate enough for relief from federal charges that he is willing to endure the judgment of history, he may even add his own name to that list.
The Framers of the Constitution intended clemency to be used as an act of grace shown to an individual or for the public welfare. They endowed a broad clemency power and trusted that the president would use it responsibly. Trump may ultimately have the power to pardon himself, but that does not mean that he should do so.
Jeffrey Crouch is an assistant professor of American politics at American University. He is editor of Congress & the Presidency journal, and author of “The Presidential Pardon Power.”