Any move by President
“It would almost set himself up as a sitting duck to be prosecuted,” said
The Capitol siege has now scrambled political calculations, with many of the president’s allies abandoning him. The New York Times
Under such circumstances, a self-pardon may prove tempting for Trump. But many experts say the idea has weak legal foundations.
To start with, Trump has been shielded from federal criminal prosecution while in office not by the Constitution or binding Supreme Court precedent but by internal Justice Department policy. A self-pardon would challenge the constitutionality of another such policy encapsulated in a 1974 memo citing the “fundamental rule that no one may be a judge in his own case” and concluding that “the president cannot pardon himself.”
The Justice Department policy dates from the Watergate scandal, in which President
The Constitution says that a president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Some experts have said they believe this means the power is absolute. Former
But other experts say that would go against the framer’s intent. “If the president can pardon himself, there’s no recourse for federal crimes that he has committed,” said Jessica Levinson, a constitutional law professor at Loyola Marymount University, “and that’s not really how our system is set up.”
Akerman points to the verb “grant” as evidence that a pardon is something the president can only bestow on others.
“It’s a transitive verb, the object of which is somebody other than the person doing the granting,” he said. “Linguistically, it doesn’t make sense that you can pardon yourself.”
Trump may previously have thought that the Supreme Court’s 6-3 conservative majority, which includes three justices he appointed, would side with him in such a dispute. He repeatedly expressed a belief that the high court would back his legal efforts to overturn the election results. But the justices, along with several other federal judges, soundly rejected the president’s arguments. Experts say they are likely to be similarly skeptical about a self-pardon.
Jennifer Rodgers, a former federal prosecutor who teaches at Columbia Law School, said she doubts the conservative justices would side with Trump in such a case.
”You have a number of them who are self-professed originalists, so they ought to be looking at what the framers intended by the pardon power,” Rodgers said. “That leads toward saying a self-pardon is not within a president’s power.”
Still, the president may ultimately conclude that the possible benefits of a self-pardon outweigh the risks. The legal battle over the validity of the pardon would prolong any prosecution, giving him time to build a stronger defense and sapping the government’s resources.
“He would still have a benefit if it was not successful,” said
The prospect of a prolonged fight that could distract from other policy goals may be one reason the Biden administration ultimately decides not to pursue charges against Trump. During the campaign, the president-elect also expressed concern about setting a dangerous precedent of prosecuting political opponents, saying it probably would be “not very good for democracy.”
Even if it decides against charges, experts say the Justice Department could still challenge the validity of a Trump self-pardon by writing a more thorough, updated version of the 1974 memo, said Jed Shugerman, a law professor at Fordham. Though it wouldn’t have the binding legal force of a Supreme Court opinion, it might discourage future presidents from taking similar action in the future.
A Trump self-pardon could further fuel other legal risks to him. The president’s pardon power applies only to federal crimes. It offers no protection from state-level investigations like the inquiry by Manhattan District Attorney
Georgia Secretary of State
State authorities would likely use a Trump self-pardon to rally public support for cases against the outgoing president, said Rodgers.
“People will be on board a bit more with the decision to prosecute him if he does try to give himself a pardon on the way out,” she said. “A large portion of the public will recognize it as outrageous.”
(Adds background on potential state charges)
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