Article II, Section2 of the US Constitution states, in part, “The President...shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The power of the pardon is as close, constitutionally speaking, to an absolute power as the Chief Executive gets. A President can, at his own pleasure, grant pardons or commutations for any and all federal crimes (i.e., “offences against the United States). The pardon power doesn’t extend to state and local crimes. State governors generally hold a similar power in these cases. The US Supreme Court has established the breadth of the pardon power in law. In Ex Parte Garland (1866) the high court held the pardon power, “is unlimited…. [and] extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” This would seem to settle an issue pertinent to the present day. Specifically, can the President pardon himself?
There are many judgments to be drawn from the familiar forms of legal argument, all of which draw the conclusion that such a pardon is not constitutionally permissible, a conclusion also reached by the Office of Legal Counsel (OLC). In 1974, the OLC issued an opinion stating, “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” (OLC opinions have force of law, i.e., the opinion that a sitting President cannot be indicted during his term of office.) There is the further possibility that a President could commit crimes with the intention of pardoning himself, thus circumventing the provision of Article II, Section 3 that “he shall take Care that the Laws be faithfully executed” and the provision of Article II, Section 1 that “executive power shall be vested in a President.”
When a president pardons another person for a federal crime, he is in fact executing the law—the law of the Constitution’s pardon power. But when the president pardons himself, he assumes a power that is incompatible with the application of federal law. That is because as chief law enforcement officer, he could put himself above the law simply by withholding his consent to his prosecution by the department he controls while he is president—and then assure himself that he could not be convicted after his term ended because he could pardon himself before he could even be charged and prosecuted. Thus the law could not, in the face of such a pardon, be “faithfully” executed, because the pardon itself might be an expression of bad faith. The self-pardon might even then amount to an element of the crime for which he is pardoned.
No other person holds such extensive power to thwart federal law, because no other person could both withhold prosecution while committing crimes and then render prosecution thereafter pointless. It would be impossible to “faithfully execute” the law when the perpetrator can purposely nullify that law.
So, given the legal and constitutional arguments opposing the possibility of a presidential self-pardon, the question remains. Will Donald Trump attempt to pardon himself before leaving office? It’s possible. He has already tweeted that he has the right to do so. He has further made clear his belief in the near-dictatorial powers of the presidency. It is likely such an attempt would end up before the Supreme Court where Trump has some friendly faces to look toward. He may feel he would have the votes to sustain his pardon. It is not, however, quite such a clear issue.
Several arguments work against Trump. Not the least of these is the notion that a pardon is a de facto admission of guilt. It seems almost improbable that the Narcissist-in-Chief would allow his legacy to include even a hint that he did anything wrong. Also, said admission of guilt could impact his planned 2024 bid to return to power. A pardon removes 5th Amendment protection in the potential prosecution of others in his administration. He could be subpoenaed and compelled to testify before Congress and in open court. The one thing that may work in his favor is whether or not the incoming Biden administration will have the appetite for lengthy investigations and prosecutions. They may just allow state prosecutors have their days in court and get on with the business of governing.
Donald Trump probably can’t pardon himself. The issue has never been tested, but we live in extraordinary times. The only predictable thing about Trump is his unpredictability. Nothing would be surprising as his days in power grow short.