As special counsel Robert Mueller continues to investigate President Donald Trump’s campaign and administration’s ties to Russia, the Washington Post reported that Trump has enquired about “his power to pardon aides, family members and even himself.”
The constitutionality of self-pardons remains a surprisingly open question. Brian Kalt has been studying the subject for two decades. The matter has never been tested in a court of law, because no president has ever attempted it, although Richard Nixon reportedly considered the option before resigning. Kalt, a professor of law and the Harold Norris Faculty Scholar at Michigan State University, believes self-pardons are “legally invalid.” “A pardon is inherently something that you give to someone else,” he says. Kalt also points to the notion that one cannot be a judge in one’s own case.
But Jed Shugerman, a professor of law at Fordham University, notes that this is a judicial principle, while pardoning is an executive power. “Without a stronger hook to say that there is an implicit barrier to self-pardoning, judges are less likely to say that a self-pardon is beyond the [powers granted by the] constitution to the president,” he says.
Most pardons signed by the president are the result of a bureaucratic process in which seekers apply to the Department of Justice’s Office of the Pardon Attorney. They are typically at least five years removed from prison, and demonstrate that they accept responsibility for their crimes. But presidents aren’t restricted to granting such pardons—they can also be given to people who haven’t completed their sentences, or have yet to be charged.
A self-pardon or the pardoning of associates wouldn’t necessarily be an admission of guilt. “The power to pardon does also include the power to exonerate people, and in rare instances it has been used that way,” says Kalt. Although a pre-emptive pardon would end prosecution, it is not necessarily obstruction of justice—a president would simply be making a decision the best way to proceed in the case, just as a prosecutor has the discretion not to press charges. But his motives matter. “A pardon that benefits himself directly, like a self-pardon would, or that is part of a conspiracy where he buys the loyalty of his criminal minions by promising and giving [them] pardons—that corruption itself is a crime,” Kalt argues. The president could not then be prosecuted for whatever he pardoned himself for, but could be pursued for abusing his pardoning power.
Impeachment can’t be prevented by a pardon. That’s because impeachments are driven primarily by political rather than legal considerations—an action doesn’t have to be a crime for a president to be impeached for it. In Trump’s case that means he could forestall federal prosecution of himself or his associates, but still lose his office, in part because of the nature of the pardon itself. “It isn’t just a get out of jail free card for anything,” says Shugerman. “[It] has to actually identify the potential crimes that one is pardoned for—[Congress could] flip that same document into an articles of impeachment.” Meanwhile, a self-pardon would also likely cost the president and his party significant and electoral support. Gerald Ford lost the 1976 presidential election in part because of his pardon of predecessor Richard Nixon, which was labelled a “corrupt bargain” by Democratic opponents.
Pardons also only apply to federal prosecutions. “States also have concurrent criminal law,” Shugerman notes. Were the president to fire Mueller to halt the investigation or grant pardons to himself or his associates, state prosecutors could take up the investigation or file charges instead. “If Trump is systematically undermining the rule of law, dismantling the Department of Justice and trying to thwart all norms about law enforcement, then it winds up being the responsibility of the states to step into that breach.”
The legality of self-pardons has not become any clearer in the two decades since Kalt first wrote about them as a law student. His 2012 book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies examines the question and other unsettled areas of constitutional law. It’s better to consider these matters before they become reality ,he argues, when it’s not clear whether Democrats or Republicans would benefit from the outcome. “We don’t know, so we have to actually—despite ourselves—do what’s right, instead of what would make our side win,” he explains. But he says discomfort with hypotheticals and the desire to preserve political flexibility have always forestalled any such debate. Plus, people tend to cherry-pick the parts that serve their own ends. “It’s kind of frustrating to spend your time writing something knowing that no one is going to use your arguments because they agree with them [but] because they’re advantageous for their side,” he admits.
Kalt notes that his analysis of self-pardons has been partly based on the assumption that “the only president who would do this would be one who had nothing to lose”—one facing certain impeachment and a hostile public, and fearing prosecution. That’s not the case for Trump. “He could argue that the investigation against him is a witch hunt, that it is fake news, and that he’s pardoning himself not to plunder his office but to do the right thing,” notes Kalt. “[And] 30 per cent of the country would nod their head and agree, ‘Yeah, that’s what he’s doing.’”
The president has upset whatever assumptions he once had about what was implausible, Kalt acknowledges. Constitutional Cliffangers was written as a series of scenarios “that probably won’t happen, but wouldn’t it be interesting if they did,” he says. But during Trump’s short time in office, several have been the subject of discussion, including the prosecution of a sitting president. Kalt still doesn’t think Trump will try to pardon himself. “But he’s surprised me before.”
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