“Pardon me.” That’s a common admission we’ve done something wrong and a request for forgiveness.
As such, I can’t pardon myself. I can only ask you to pardon or forgive me. Even “I beg your pardon,” involves two people.
However, our Supreme Court has never ruled on whether a president can pardon himself under our Constitution. It hasn’t had to. Will Trump try? He could, but I don’t think he will.
Article II, Section 2, Clause 1 of the U.S. Constitution gives the president virtually unlimited power to issue pardons to individuals or groups. But it’s not clear if he can extend that pardon to himself.
The subject came up last week as Trump pardoned former national security adviser Michael Flynn, a retired U.S. Army lieutenant general (three stars) who once led the Defense Intelligence Agency. Flynn pleaded guilty in 2017 of lying to the FBI about contacts with the Russian ambassador. Later, he reversed himself and accused the government of framing him.
The Flynn pardon, along with the commutation of the prison sentence of presidential political pal Roger Stone (pardon wipes out the crime and sentence; commutation erases the sentence only) and the pardon of political supporter Sheriff Joe Arpaio led to speculation about who is next to receive a political pardon or commutation. Paul Manafort? Steve Bannon?
Or, even more controversial, would Trump pardon himself?
Yes, President Ford pardoned Richard Nixon in 1974, but even Nixon had decided against attempting to pardon himself.
In 2018, Trump said he had the “absolute right” to pardon himself, a claim many constitutional law scholars dispute. They generally believe that the president cannot self-pardon, but the question has never been answered before by the Supreme Court, of which Trump has now appointed three of the nine sitting justices.
It’s never come up because no president has ever been charged with a crime after leaving office by a succeeding administration. However, more than a thousand former federal prosecutors signed a letter last year arguing that the president’s conduct outlined in the Mueller report would justify obstruction of justice charges in a normal case. So, Trump could be charged.
Even if a court decides that Trump could pardon himself, it will not fully insulate him from all liabilities, as the pardon would only apply to federal charges. It wouldn’t apply to state and local investigations, such as those ongoing in New York that appear most threatening to him.
Brian Kalta, a constitutional law professor at Michigan State University, said, “When people ask me if a president can pardon himself, my answer is always, ‘Well, he can try.’ The Constitution does not provide a clear answer.”
Many argue that a self-pardon would be unconstitutional because it violates the basic principle that nobody should be the judge in their own case. Kalt said, in his view, this was a strong argument. So, for a court to rule on the pardon’s validity, a federal prosecutor would have to charge Trump with a crime, and then Trump would have to raise the pardon as a defense, he said.
And that is why many, including me, don’t think the president will pardon himself. It would be an admission of guilt per Burdick v. United States, a 1915 Supreme Court decision holding that a pardon carries an imputation of guilt.
Not only that, but under Burdick, a pardon doesn’t take effect if the beneficiary does not accept it. To accept the pardon, the person being pardoned admits to being guilty. And that still wouldn’t protect him from any state or local charges.
I don’t see Trump doing that.
So, can he pardon himself? The Supreme Court has never ruled on it, so no one knows. Therefore, he can try. But I don’t think he will because he would admit guilt and that would not absolve him of all his liability.
However, based on his past behavior and temperament, he might. Your guess is as good as mine.