6

Recently, Donald J Trump stated that the right to pardon himself.

As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!

@RealDonaldTrump - 5:35 AM - 4 Jun 2018

How much truth is there to this?

closed as primarily opinion-based by Nate Eldredge, Oddthinking Jun 4 '18 at 16:53

Many good questions generate some degree of opinion based on expert experience, but answers to this question will tend to be almost entirely based on opinions, rather than facts, references, or specific expertise. If this question can be reworded to fit the rules in the help center, please edit the question.

  • 4
    Previously asked on Law.SE. It's all a matter of opinion at this point, since it's never been tried before so no court has ever ruled on it. There are "numerous legal scholars" on each side, but we won't be able to reach a definitive "yes" or "no" on this question unless it actually happens. – Nate Eldredge Jun 4 '18 at 15:10
  • @NateEldredge I do not believe that there is any law or regulation that requires the President to publicly announce all granted pardons (maybe FOIA?). How do you know Trump has not already pardoned himself and kept the pardon documents privately. – emory Jun 4 '18 at 21:07
  • @emory: Sure. I guess nobody can stop the President from writing "I pardon myself" on a piece of paper and putting it in his pocket. The question is whether it would actually protect him from prosecution, and we wouldn't know for sure unless the government actually tries to prosecute him, he asserts his pardon as a defense, and a court rules as to whether it's effective. – Nate Eldredge Jun 4 '18 at 22:51
7

It would be more more fair to say that a president "doesn't not have" the right, rather than "absolutely does".

It's a grey area, and would probably decided in a court if it was attempted and challenged. The Constitution doesn't give the president explicit power to do so, but also doesn't explicitly say a president can't do it.


Pardon Definition: Article II, Section 2 of the Constituion defines the power of the Presidential pardon:

...and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

Not much there, and since it just says "grant Reprieves and Pardons for Offenses" and not something like "grant Reprieves and Pardons to others for Offenses", it can be assumed he can pardon himself for any offenses against the United States.

Do note, that the pardon explicitly does not cover impeachment. It can be assumed that even if a president could pardon themselves, they wouldn't stay president for long.

Court Interpretation: Until such a pardon happens and is challenged in court, we won't know exactly if a self-pardon would be legal. However, this isn't the first time (and probably not last, unfortunately) that the idea of a self-pardon has come up.

Prior to resigning in the wake of the Watergate scandal, Richard Nixon, or at least his lawyers, examined whether a president could pardon himself. An Attorney General legal counsel, Mary Lawton, came to the conclusion that it is not possible to self-pardon:

Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.

...

The necessity doctrine would not appear applicable here. That doctrine deals with the situation in which the sole or all judges or officials who have jurisdiction to decide a case are disqualified because they belong to a class of persons who have some interest in the outcome of the litigation, thus depriving the citizen of a forum to have his case decided.

Essentially, Lawton provides two reasons as to why a president cannot pardon themselves: because nobody should be their own judge, and because a person cannot receive a fair trial if the judge has some interest in the outcome. However, this is just her interpretation of the legalese, and a court may decide differently.

Regardless, if a president did pardon themselves, I'm sure the impeachment process would go a lot quicker than the court case that's trying to decide whether or not they were allowed to pardon themselves.

  • If you look at references closer to the time the Constitution was written, such as the following 1885 book, "it would do no good to convict him, for he could immediately pardon himself". books.google.com/… President may pardon self of federal charges, but not of impeachment or state charges. – DavePhD Jun 4 '18 at 19:48
  • 2
    @PoleHoleSet 1885 is closer to 1789 than say the 1960's or 2018, hence why he commented "If you look at references closer to the time the Constitution was written, such as the following 1885 book". – Jacob Andrew Hollander Jun 4 '18 at 21:15
  • 1
    @JacobAndrewHollander - yeah, and 1959 is closer than 1960, but neither is "close." I feel I was was fairly explicit about this in my comment, that "closer" but still distant would not seem to translate to "more accurate." – PoloHoleSet Jun 5 '18 at 21:08

Not the answer you're looking for? Browse other questions tagged .