The Debate Over a Presidential Self-Pardon

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Trump’s family looks on as he departs for the final time as President. (Alex Edelman | AFP | Getty Images)

At the tail end of Trump’s presidency, it was widely speculated that he might try and issue himself a presidential pardon. Perhaps in part because the Justice Department deems prosecution of a sitting president to be unconstitutional, Trump was known to consider himself immune to all punishment by virtue of his position. However, he walked a thin line between trying to absolve himself of responsibility for his crimes while also maintaining a facade of innocence for his followers to cling to. A self-pardon would essentially be an admission of guilt — something that would not go over well with his supporters — and might also make him a target for state-level and private prosecution. Though his long list of last-minute pardons did not end up including any of his family members or himself, the issue of the constitutionality of such a move merits consideration for the future.

In 2017, Trump asserted via Twitter that U.S. presidents have the power to pardon themselves. While the former President is far from a Constitutional scholar, some argue that a loose interpretation of Article II, where the pardon clause is outlined, allows for a president to issue a self-pardon. Since the Constitution’s pardon clause does not explicitly bar a president from pardoning him or herself, it can be argued that doing so would be permissible.

Many legal scholars, however, remain skeptical of that justification. In 1974, the Justice Department wrote that based on their interpretation, presidents are not permitted to pardon themselves based on “the fundamental rule that no one may be a judge in his own case.” Still others believe that the use of the word “grant” in the pardon powers clause, because it implies an interaction between two individuals, means that a president may not both give and receive a pardon.

While scholars are divided on whether or not a self-pardon is Constitutional, they agree that an attempt to issue one would essentially declare that the Executive is above the law. No president has ever attempted to pardon himself, though Nixon and Trump have both weighed it as an option. Doing so would set the precedent that future presidents could act outside the law without fearing the consequences. It is generally agreed upon by legal experts that no one, including the president, should be considered above the law. Trump’s presidency put a lot of pressure on that idea, but the fact that he didn’t pardon himself means that at least for now, his belief that the president may evade retribution for criminal acts has yet to be validated by any court ruling.

Ultimately, to settle the debate over the legality of a presidential self-pardon, a president would need to attempt one and allow Federal courts to determine the constitutionality of the move. Before then, Congress has the option of proposing an amendment to the pardon power to prevent future leaders from abusing it and escaping legal consequence.