President Donald Trump pauses while having lunch with services members in the Roosevelt Room of the White House in Washington, Tuesday, July 18, 2017.
Pablo Martinez Monsivais—AP
By Tessa Berenson
July 21, 2017

As the special counsel investigation swirls around President Trump, the Washington Post reported that he’s trying to learn about his pardoning powers. But could he actually pardon himself?

Probably not.

The Constitution says that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

It’s true that this text doesn’t explicitly rule out the possibility of a self-pardon. (And it’s also an unanswered legal question as to whether a president can be indicted while in office.)

But a self pardon would run afoul of a bedrock legal principle in the United States, according to a 1974 memo written by the Office of Legal Counsel under President Nixon. (The Supreme Court has never actually ruled on the issue.)

“Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” the memo declared days before Nixon resigned amid the Watergate scandal.

The document does say there could be a loophole.

“If under the 25th Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President,” it says. “Thereafter the President could either resign or resume the duties of his office.”

Outside of the legal questions, there would certainly be political complications if Trump tried to pardon himself, and the blowback could result in the Republican-controlled House impeaching him to remove him from office.

“Important to remember that the pardon power is legally—but _not_ politically—absolute,” Steve Vladeck, a national security law professor at the University of Texas School of Law, wrote on Twitter Thursday. “Q, as ever, is how congressional Republicans respond.”


You May Like