Presidential self-pardon would likely be unconstitutional

The tragic events of last week make even more salient the question of whether Donald Trump can pardon himself before leaving office on Jan. 20. There is no clear answer to that question because no prior president ever has tried to do that. But there is a strong argument that such a pardon would not and should not be constitutional.

There is no doubt that Trump faces possible criminal liability. Overwhelming evidence exists that he engaged in obstruction of justice with regard to the investigation of Russian involvement in the 2016 election. The Mueller report, far from being an exoneration, documented Trump's criminal activities. Mueller simply said that he would express no conclusions about Trump's criminality because Justice Department rules prevented a sitting president from being indicted.

In the last week, in an effort to overturn the 2020 election, Trump violated federal laws. His effort to pressure Georgia Secretary of State Brad Raffesnsperger to alter the election results likely violated both federal and state law. Trump's actions exhorting his followers could be seen as incitement or even a violation of the federal law which prohibits: "Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto." As Sen. Mitt Romney said what happened at the Capitol was "an insurrection, incited by the President of the United States." The United States attorney in the District of Columbia has announced that he is investigating the events of Jan. 6, including by Trump.

Whether the Biden administration would choose to bring a criminal prosecution of Trump is unknown. Joe Biden understandably wants to be a healing president and a criminal prosecution of Trump would be divisive. But to not prosecute Trump sends an undesirable message that Trump did not violate the law or that the president is above the law in his actions.

Not knowing what Biden might do in this regard may cause Trump to try and pardon himself. Can he?

Article II of the Constitution provides the president the power to pardon all accused or convicted of federal crimes. It says that president has the power "to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

This language imposes some important limitations on the pardon power. The president can pardon only for federal law crimes, never for state law offenses. Even if President Trump can pardon himself, any local district attorney can prosecute the president in state court if crimes were committed and the pardon power will provide no protection. Also, the Constitution is explicit that there cannot be a pardon "in cases of impeachment." In other words, president Trump cannot be pardoned, by himself or a future president, for any of the actions for which there is an impeachment.

Beyond that, though, the president has the broad authority to pardon anyone accused or convicted of a federal crime. The Constitution sets no other limits on the pardon power. Although it is unseemly, President Trump can issue pardons to members of his family and most expect that he will do so. I hope he will not do so, but he could pardon those who breached the Capitol on Jan. 6 and engaged in violence. A pardon can be issued even before charges are brought against a person. For example, President Gerald Ford, upon taking office, issued a pardon to Richard Nixon, even though Nixon never had been indicted or convicted of any crime.

The hard question is whether a president can issue a blanket pardon for himself from all federal criminal liability for actions already taken. Trump has claimed this power. In 2018, in a tweet, he said that he has "the absolute right to pardon myself." His supporters have urged this. Fox New host Sean Hannity said, "The president out the door needs to pardon his whole family and himself."

I believe that it would be unconstitutional for a president to pardon himself. The power to "grant pardons" implies that it is something that is bestowed on another. The pardon power existed long before the United States and it always was understood to involve two parties. There are no instances in Anglo-American history where a person pardoned himself.

Moreover, Article II of the Constitution is explicit that the president may receive no benefit from serving in the office except for the salary that he is paid. The ability to grant a self-pardon would be an enormous benefit.

Most of all, a pardon would be inconsistent with the basic principle of the rule of law that no one, not even the president, is above the law. In 1974, the Office of Legal Counsel in the United States Department of Justice issued a written memo explaining that the president cannot pardon himself. It concluded: "Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself." Of course, a Justice Department memo is not legally binding. But it should be remembered that President Trump and his supporters relied heavily on an Office of Legal Counsel memo from the same era that opined that a sitting president cannot be criminally indicted. That memo was the basis for why Robert Mueller would not even express an opinion on whether President Trump had engaged in obstruction of justice.

Of course, there are ways for President Trump to circumvent these limitations. He could resign from office at 11:55 a.m. on Jan. 20 and have newly installed President Mike Pence issue a pardon. Or Trump could invoke the 25th Amendment and have Pence temporarily take over. During this time Pence could pardon Trump. But in light of the fractured relationship between Trump and Pence, this seems less likely at this point.

Perhaps none of this will come to fruition. Maybe Trump will gamble that the Joe Biden, who seems to care greatly about unifying the country, would not take the divisive action of prosecuting Trump. And if Trump is contemplating running for president in 2024, even after the events of Jan. 6, he might worry about the political implications of a self-pardon.