Trump could pardon himself from crimes committed while in office
Unless you’ve fallen into the sinkhole on the White House lawn, you’re well aware of President Trump’s Twitter declaration that he can pardon himself just like he would anyone else.
Purportedly, conservative legal theorists agree with the president’s assertion. I’m a constitutional law expert and a liberal legal theorist who opposes almost everything that President Trump has done. Yet I find myself in agreement with my conservative counterparts. The president’s pardoning power is unlimited and it extends to the president himself.
In a time when we’re forced to question the facts with every new breath, I rely on what I know best to tell me the truth, the Constitution and the U.S. Supreme Court pardoning precedents.
The president, said the Supreme Court, “occupies a unique position in the constitutional scheme.” Under article II section 1, the entire executive power of the United States is vested in the president, and under article II, section 2, “he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” That provision doesn’t say “except for himself,” and there is no basis for reading into that provision words that are not there.
Since the Constitution imposes no limit on the pardoning power, there is no textual or structural basis for concluding that the president cannot pardon himself for a federal crime. More importantly, the Supreme Court has held that the pardoning power is absolute. It includes the power to pardon an offense prior to a charge or conviction, as President Ford pardoned former President Nixon for all crimes connected with the “Watergate scandal” when Nixon resigned from office. It includes the power to pardon for a criminal contempt of court, even though this nullifies an action of the federal judiciary. And it includes the power to impose conditions on a pardon or commutation. It is as absolute a power as any power can be.
Like for many things, the Constitution provides a remedy for presidents who abuse pardoning power. It’s called impeachment. The House of Representatives can impeach the president, and if two-thirds of the Senate agrees to convict, the president is removed from office.
Trump may pardon himself for any and all crimes he may have committed while holding the presidential office. If he is prosecuted by a subsequent administration after he leaves or is removed from the presidency, he would assert that he has been pardoned for those offenses and the federal courts likely would uphold the claim.
In the real world, however, the question of whether Trump has the power to pardon himself will not be resolved unless and until the President does pardon himself and is prosecuted by a subsequent administration after he is out of office.
Distinguished Professor Robert A. Sedler teaches at Wayne State University Law School in Detroit.