Donald Trump told NBC “Meet the Press” host Kristen Welker that he’s “very unlikely” to pardon himself if he becomes president again. But what if he tries?
We’d be forging new ground if he went through with it, but we aren’t drawing on a blank slate when it comes to considering the idea. The self-pardon question has been contemplated in our nation’s history, even if it hasn’t been tested.
For example, the issue arose roughly 50 years ago. Before then-President Richard Nixon resigned in the wake of the Watergate scandal — and before his successor, Gerald Ford, pardoned him — the Justice Department’s Office of Legal Counsel issued a memorandum opinion saying presidents can’t pardon themselves.
“Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” the 1974 writing said.
There’s a certain logic to that idea. But it doesn’t have the precedential force that an actual ruling from, say, the Supreme Court would. Whatever the answer, it’s unsettled, because it hasn’t needed settling.
Making things more complicated, the Constitution doesn’t explicitly prohibit or permit self-pardons. It gives presidents the power “to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” That last part shows a president pardoning themselves could lead to an impeachment that the president couldn’t then pardon themselves out of. And the “against the United States” part means presidents can only pardon federal, not state, crimes. So if nothing else, the issue arising again spotlights that difference, as Trump fights charges in two federal and two state cases. That is, whatever the presidential pardon power can do, it can’t get Trump out of trouble in New York or Georgia.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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