FACT CHECK: Can The President Pardon Himself?

Emily Larsen | Fact Check Reporter

President Donald Trump said Monday that he could legally 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?” he tweeted.

Verdict: Unsubstantiated

Constitutional scholars argue both sides. No president has ever tried to pardon himself, and no court has ruled on the matter, leaving the legality of a self-pardon an open question.

Fact Check:

Trump asserted his power to pardon himself after The New York Times published a letter Saturday from Trump’s lawyers to Special Counsel Robert Mueller that said the president “could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”

It’s unclear whether a president could legally pardon himself. No president has ever tried it. Legal scholars make arguments both for and against its constitutionality.

The most prominent government writing on the matter argues that the president cannot pardon himself. During the height of the Watergate scandal, President Richard Nixon contemplated a self-pardon. But the Department of Justice (DOJ) said in a memorandum on Aug. 5, 1974, that “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”

Nixon resigned four days later. About a month after the resignation, President Gerald Ford pardoned Nixon for all federal crimes that he “committed or may have taken part in” while in office. (RELATED: How Many People Did Reagan Pardon?)

Many constitutional experts agree with the DOJ opinion. “The idea that the president can decide whether he deserves mercy is incompatible not only with the notion that no one is above the law, but with the notion that no one can make a reasonable judgement about whether he or she deserves to be punished,” Laurence Tribe, a constitutional law professor at Harvard Law School and author of a book on presidential impeachment, told The Daily Caller News Foundation.

Other legal experts maintain that there is no constitutional restriction on presidential self-pardons.

“President Trump can clearly pardon anyone – even himself – subject to the Mueller investigation,” John Yoo, a law professor at the University of California at Berkeley, wrote in an op-ed in October 2017. In a 1998 House Judiciary meeting, Rep. Bob Goodlatte said that “there is also a prevailing opinion that a President of the United States can exercise the power of pardon on himself,” though he did not cite specific writings.

Sen. Ted Cruz said on Twitter Monday night that the text of the U.S. Constitution sets no limit on who can be pardoned.

The Constitution mentions few specific restrictions on presidential pardons. Article II, section 2 says that president “shall have Power to grant Reprieves and Pardons for Offences against the United States” – meaning that he can only pardon federal offences, not state or local ones – “except in Cases of Impeachment,” meaning that he cannot stop Congress from removing federal officials like judges and lawmakers from office.

The framers of the Constitution did not heavily debate the question of a self-pardon, but it came up a few times. Virginia delegate to the Constitutional Convention Edmund Randolph questioned whether the president should be able to pardon acts of treason.”The President may himself be guilty. The Traitors may be his own instruments,” read James Madison’s notes on the Constitutional Convention in 1787. Pennsylvania delegate James Wilson pointed out that Congress could impeach the president, and the framers ultimately decided to allow presidential pardons for treason.

At the Virginia ratifying convention in 1788, George Mason worried that the president “may frequently pardon crimes which were advised by himself.” Madison called the prospect of impeachment “a great security” against abuses of the pardon power.

There are a few instances of self-pardons by governors. In 1856, Isaac Stevens, governor of the Washington territory, tried to close the courts over a dispute with farmers. President Franklin Pierce reprimanded him for over-stepping his authority, and a judge fined him for contempt of court. Stevens pardoned himself and did not pay the fine.

Other gubernatorial self-pardons were lighthearted or superficial. Newspapers in 1911 reported that Tennessee Gov. Ben Hooper “sentenced” himself to two days in prison so he could “study conditions first hand,” and then “pardoned” himself after one day. Arkansas Gov. Orval Faubus faux-pardoned himself after being “arrested” when he showed up in McGehee, Ark., without a “shaving permit.” Residents were growing beards to celebrate the city’s 50th anniversary, according to a 1956 newspaper.

While the pardon is different at the federal level, attorneys have pointed to gubernatorial pardons when arguing for presidential pardon powers. For example, when deciding whether President Bill Clinton could give posthumous pardons, lawyers pointed to some made by governors. But legal experts told Newsweek that the historic examples do not set a strong precedent for a presidential self-pardon.

For a court to address the legality of a presidential self-pardon, a president would have to pardon himself, a prosecutor would have to try to indict him and the president would have to raise the pardon as a defense. (RELATED: Can A President Be Charged With Obstruction Of Justice?)

Those who argue that a president can pardon himself say that it very unlikely that he ever would. A self-pardon would be politically and socially damaging. “After a self-pardon, Trump could wipe out the Islamic State, trigger an economic golden age and solve global warming with a carbon-eating border wall — and no one would notice,” Jonathan Turley, a professor of Public Interest Law at George Washington University, wrote in an op-ed in 2017.

Even if a president was prepared to face public outrage after a self-pardon, he probably would not attempt to pardon himself until his last day in office, Harvard Law School professor emeritus Alan Dershowitz said in a 2017 op-ed. The president would still be vulnerable to impeachment, and a self-pardon would likely prompt Congress to remove him from office.

A president could also take a different approach and avoid testing the legal issue altogether: “He could also make a deal — explicit or implicit — with the vice president to resign a day before his term was up in exchange for a pardon from the one-day president,” Dershowitz wrote. The DOJ memorandum also mentioned that possibility.

“We will have to learn to live with the uncertainty of never knowing whether a president has the constitutional authority to pardon himself,” Dershowitz said.

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Emily Larsen

Fact Check Reporter