Faced with increasing public scrutiny regarding Robert Mueller’s Russia probe, President Donald Trump tweeted earlier this week that he has the “absolute right” to pardon himself.
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
However, despite Trump’s claim that “numerous legal scholars” agree with him, there are just as many who don’t. Which begs the question: who’s correct? (RELATED: Rudy Giuliani: Even If Trump Shoots Comey He Can’t Be Indicted).
The answer, unsurprisingly, is uncertain. The Constitution does not directly address the issue of a presidential self-pardon, and no president has ever attempted it. That being said, there is some historical precedent on the matter.
In 1974, the Justice Department was faced with the possibility that President Richard Nixon might try to pardon himself. In an effort to thwart such an attempt, acting assistant attorney general Mary Lawton wrote in a memo to the deputy attorney general on August 5 – four days before Nixon resigned – that the president does not have the authority to pardon himself. “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” Lawton wrote.
But despite Lawton’s assertion, as with most federal laws, there is a loophole. Alan M. Dershowitz explained in a column for The Hill how Trump could pardon himself on his last day in office:
Why the last day? Because if he can be prosecuted [for an alleged crime committed before he assumed office] as soon as he leaves office, pardoning himself would protect him from that possibility, if the self-pardon were valid. Why would he not do it any earlier? Because he might well be impeached if he pardoned himself, and the pardon power does not extend to impeachment.
But he couldn’t be impeached on his last day or after he leaves office. If he had doubts about the validity of a self-pardon, he could also make a deal — explicit or implicit — with the vice president to resign a day before his term was up in exchange for a pardon from the one-day president.
Indeed, the majority of legal scholars who argue that Trump can’t pardon himself say so simply because a self-pardon would almost definitely lead to impeachment. As Jens David Ohlin, vice dean, and professor at Cornell Law School, bluntly put it, “The self-pardon would be a disastrous move for Trump. It would accelerate impeachment.”
So, could President Trump pardon himself? Technically, yes – but he would have to wait until his final day in office. That being said, it would be an extremely corrupt and judicially unsound move; and if he wants Republicans to maintain control come November, he would do well to stop talking about it altogether.
What do you think about the legality of the presidential self-pardon? Share your comments below!
