The Common Law
Can President Trump pardon President Trump?
Is it actually possible for President Donald Trump to pardon himself? How could that be allowed?
There's about two weeks left in the Trump presidency. He has already issued several controversial pardons. And now there's speculation regarding the possibility of President Trump "preemptively" pardoning his immediate family-member advisors, and even the possibility of him pardoning himself. Whether President Trump can pardon himself is an outstanding question that constitutional legal experts debate without consensus.
The presidential pardon power comes from the U.S. Constitution and allows the president "to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The authors of the Constitution believed the pardon power was a way to allow for the public good by an executive showing of clemency. This could be in the form of a commutation (reduction or elimination of a prison sentence) or a pardon (nullification of all legal consequences for an offense). The pardon powers have been broadly applied by courts in the past, although some legal scholars suggest that the founders wanted implied limits on the pardon power.
In practice, broad use of the pardon power has been permitted in the past. President Gerald Ford issued a "full, free, and absolute" pardon of Richard Nixon for any crimes he may have committed while he was president. And later that decade, President Jimmy Carter pardoned thousands of citizens that had previously avoided a government-imposed requirement to serve in the Vietnam war. And in the last month of his presidency, Bill Clinton pardoned his brother, Roger Clinton, who had been previously convicted of a drug offense.
So, knowing all that – can Trump actually pardon himself? The Constitution doesn't directly address the issue. No president has ever done this before so there's no court case directly on point. Simply put, it's an open question. Some constitutional scholars believe Trump can pardon himself because of the broad nature of the pardon power. Others argue a preemptive pardon for himself is unconstitutional.
President Trump has alternatives if he wants to pursue a somewhat more legally defensible pardon. For example, he could resign before President-elect Joe Biden is sworn in and allow newly installed president Mike Pence to issue his pardon. Or he could try to accomplish the same result by using the 25th Amendment, which gives the vice president all presidential powers for a limited time when the president is temporarily disabled.
While courts would likely view the pardon power broadly, the power is not absolute. The pardon power only applies to federal crimes. And it only applies for crimes committed up to the time of the pardon – it's not a get-out-of-jail-free card to commit future crimes. So, for example, a preemptive pardon of President Trump, if legal, would not prohibit his prosecution for violations of state crimes nor would it insulate him if he violates federal laws in the future.
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Marrs, Ellis & Hodge LLP, www.jmehlaw.com.
The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.