President Donald Trump is expected to leave office on January 20, 2021, but during his remaining weeks in the White House, he is extremely likely to issue presidential pardons. Trump may choose to pardon former campaign officials—but there is a long-running question about his ability to pardon himself.
With possible legal troubles ahead for the president, he may be considering taking the unprecedented step in the lame-duck period. No president in American history has attempted it and there is no consensus among legal scholars as to whether it is possible.
Jeffrey Crouch, assistant professor of American politics at American University and author of The Presidential Pardon Power, believes Trump can take the step.
“No American president, including Richard Nixon, has ever attempted to pardon himself,” Crouch told Newsweek. Nixon was pardoned by his successor, Gerald Ford.
Crouch added: “Legal scholars are split between those who believe he could pardon himself—I am in that camp, although I don’t think he should do so even if he can—and Brian Kalt and others who argue that he cannot because it would allow Trump to be a judge in his own case, or be inconsistent with his other constitutional responsibilities.”
Brian Kalt, professor of law at Michigan State University, told Newsweek it was not “an open-and-shut question.”
“My standard answer here is ‘Well, he can try.’ If I were the judge, I would say no, but there have never been any cases and there are arguments on both sides,” Kalt said.
“I think that pardoning himself would not help him as much as he might think,” Kalt went on. “First of all, as a practical matter, it would make him look guilty. Note that it is incorrect to say, as many, many people do, that accepting a pardon equals an official admission of guilt.
“Second, any federal prosecutors who were thinking of going after him would not be deterred in any way by a self-pardon. They would fight the self-pardon in court and they would have a good chance of beating it. Third, it would have no effect on state prosecutions. So, what I think would happen is a firestorm of controversy but, legally, maybe not much at all.”
Crouch notes that “neither the Constitution nor case law requires the president to spell out what specific offenses are being pardoned.” It is therefore theoretically possible for Trump to pardon himself without explaining what crime or crimes are involved. However, this could lead to the pardon power itself being tested.
“The truth is, no one really knows what will happen unless Trump actually tries it,” Crouch said.
“Would the Supreme Court end up weighing in? Maybe. Could Congress impeach Trump again as punishment? In theory, yes, but he has already been impeached once, and how likely is that to happen again with a little over two months left in Trump’s term? If Trump attempts a self-pardon, the endgame is unknown.”
The president has so far given no public indication of how he might use his pardon power in the next two months. This hasn’t stopped speculation about President-elect Joe Biden pardoning Trump next year. However, the Democrat ruled that out in May.