Can Donald Trump pardon himself?

The US president claims he has an ‘absolute
right’, but some lawyers and scholars disagree

In Depth

Case for the prosecution

The question of whether he should is different from whether he
can. Trump has insisted that “numerous legal scholars” have
concluded he has the absolute right to do so, “a claim that vastly
overstates the legal thinking on the issue” says The New York Times.

In fact, the paper says “many constitutional experts dispute Mr.
Trump’s position on his pardon power, an issue for which there has
been no definitive ruling”.

Democrats, including Senator Ed Markey, cited an opinion issued
by the Justice Department office of legal counsel in 1974, four
days before the resignation of Richard Nixon, which reads: “under
the fundamental rule that no one may be a judge in his own case,
the President cannot pardon himself.”

George Mason University public policy professor James Pfiffner,
who has written about the possibility of a president pardoning
himself for the Heritage Foundation​,​ told The New York Post it is “doubtful” that Trump
could do so.

He pointed to two principles outlined in the Federalist Papers,
considered to be companion materials to the US Constitution. First,
“no one is above the rule of law,” and secondly, “no man should be
the judge in a case that affects him personally.”

Case for the defence

On the question of whether Trump has self-pardoning power, “the
weight of opinion appears to be with Giuliani – he can, but he
shouldn’t”, says CBS News.

Berkley law professor and former George W. Bush adviser John Yoo
says the US constitution gives the president virtually unlimited
pardon power. Article II says he can “grant reprieves and pardons
for offences against the United States, except in cases of
impeachment.”

This interpretaion is supported by Samuel Morison, a lawyer who
formerly worked in the Justice Department’s Office of the Pardon
Attorney, who told the Post that Trump was “probably right” when
claiming he had the right to self-pardon.

Former Department of Justice official, Andrew McCarthy, goes
even further, saying Trump does not even need to wait to be charged
with a crime before issuing a pardon. The president can
pre-emptively pardon anyone, including himself, McCarthy
argues.

So what’s the verdict?

“The bottom line is that there is no valid answer to the
question, ‘Can Trump pardon himself?’” says Michigan State law
professor Brian Kalt.

“For every person who confidently asserts that he can do it,
there is another person asserting just as confidently that he
can’t,” Kalt said. Unless Trump pulls the trigger, he added,
experts can only speculate what the courts would do to interpret
presidential pardoning power.