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Can Trump Self-Pardon? “He Can Try,” a Legal Expert Says

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Jan. 8 2021, Updated 5:35 p.m. ET

Before he leaves the White House, President 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 President Trump continue.

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The constitutionality of a self-pardon is ambiguous.

According to The New York Times, President Trump has been asking about the legalities of "pre-emptive" pardons for himself (and his family members) since 2017, though it's unclear if he's inquired since the Jan. 6 riots on Capitol Hill.

“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.”

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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.

It's unclear if President-elect Biden would choose to prosecute President Trump.

Regardless of the self-pardon questions, Litman previously said he has doubts that President-elect Joe Biden and his future Attorney General would try to prosecute President Trump.

“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," he wrote.

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But since the disastrous event resulting from President Trump's rhetoric, it seems the president-elect has changed his tune. 

“The Biden Justice Department will not want to acquiesce in a Trump self-pardon, which implies that the president is literally above federal law,” Harvard law professor Jack Goldsmith told The New York Times. Despite the legality of the move being questionable, it's clear that were President Trump to pardon himself, it likely wouldn't go unchallenged. 

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President Trump is still under investigation in New York.

Even if President  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 President Trump, encounters that the president has denied.

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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.”

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