With only two months left in the White House, Donald Trump could follow the lead of other lame-duck presidents and use the time to issue federal pardons under Article II, Section 2, Clause 1 of the U.S. Constitution. But can Trump self-pardon to protect himself from possible criminal prosecution?
That question is a legal quagmire that came up nearly 50 years ago during former President Richard Nixon’s Watergate scandal, and it’s coming up now as investigations into Trump continue.
The constitutionality of a self-pardon is ambiguous.
“When people ask me if a president can pardon himself, my answer is always, ‘Well, he can try,’” Brian Kalt, a constitutional law professor at Michigan State University, tells Reuters. “The Constitution does not provide a clear answer on this.”
In a Los Angeles Times column, however, former U.S. Attorney Harry Litman argues that there is “strong basis” to interpret Article II as prohibiting a presidential self-pardon. “A self-pardon indisputably puts the president above the law, a result that would be anathema to the framers and to our legal tradition,” he writes.
Indeed, legal experts have argued that a self-pardon would be unconstitutional because of the tenet that nobody should be a judge in their own case, as Reuters reports.
Biden might not decide to prosecute Trump.
Regardless of the self-pardon questions, Litman also has doubts that President-elect Joe Biden and his future Attorney General would try to prosecute Trump.
“It’s entirely possible, of course, that Trump has committed federal crimes in the last four years, but would any of them rise to a level that would cause Biden to put the country through the convulsions that a criminal trial of the former president would entail?” he writes. “It would deeply aggravate partisan wounds, as well as threaten Biden’s already tenuous political position as president of all the people. Biden is a healer who wants to get things done; prosecuting Trump undermines both those goals sharply.”
Trump is still under investigation in New York.
Even if Trump pardons himself against federal prosecution, he could still face charges on the state and local level. His power to pardon only applies to federal crimes, meaning he’ll have to face any prosecution that results from Manhattan District Attorney Cyrus Vance Jr.’s probe, for example.
Per Reuters, Vance’s investigation began more than two years ago and originally focused on hush money payments that the president’s former lawyer and fixer Michael Cohen paid before the 2016 election to two women who said they had sexual encounters with Trump, encounters that the president has denied.
In recent court filings, however, the district attorney suggested that the investigation could extend to potential bank, tax, and insurance fraud, and business record falsification.
“The investigation is moving forward apace; Vance is likely to reach charging decisions within a few months,” Litman writes. “And because a president can’t pardon himself (or anyone) for state crimes, his Article II powers would have no effect.”