Trump and some of his defenders have advanced the claim that he can pardon himself. As is to be expected, Trump tweeted his view: “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?”
Laying aside the Trump-like claim that only a guilty president would say that he could pardon himself, there is the question of whether Trump is right or not. While I am not a constitutional scholar, Trump is quite right. As Article II, Section 2, Clause 1 states, “the President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
Since there is no specification that the president cannot pardon himself, it would follow that he can do so—regarding offenses against the United States. While this might strike some people as an excessively vast power the historical context shows that it was originally limited. When the constitution was written, there were only three federal crimes: counterfeiting, treason and piracy. Since it was unlikely that the president would engage in such behavior, there was presumably little worry about a president pardoning himself.
Today the power is far greater. This is because the number of possible federal crimes is actually unknown but huge: estimates range from 3,600 to 4,500. As such, the scope of the power has increased over a thousandfold. Presumably Trump believes that the crime (or crimes) he can pardon himself for falls within these crimes. There seems to be no reason to doubt this, so Trump is probably right in his claim. While this power is considerable, it does have some key limits.
First, the president can only pardon for “offenses against the United States” and this is generally taken to exclude violations of state law. As such, Trump cannot pardon himself for breaking non-federal laws.
Second, the authors of the constitution wisely excluded impeachment. If this was not excluded, a president could simply pardon himself when impeached—thus rendering impeachment useless. So, if Trump were impeached, he could not pardon himself and avoid impeachment. However, Trump could still use his pardon power before he was impeached. The precedent has already been set that the president can pardon a person after the commission of a crime and before, during and after the legal proceedings. As such, Trump could pardon himself (and anyone else) for any violation of federal law now. Interestingly, even if Trump was found guilty of a federal offense and this caused congress to start the impeachment process, he could pardon himself for that offense. This could create a situation in which he is being impeached for something he cannot be tried or punished for. I suspect that at least some of his defenders would make the case that if he pardoned himself for the offense that led to impeachment, then he should not be impeached for that offense. While I certainly agree that he could pardon himself for such an offense and avoid punishment, this would not legitimately impact the impeachment process. After all, the question in impeachment is not whether the president has been found guilty of a federal offense, but whether he committed an impeachable offense. There is also the obvious fact that the clause specifies the pardon clause does not apply to impeachment—the authors, not being idiots, would be aware that a clever rogue would certainly try that very tactic.
While Trump can pardon himself for certain crimes, there is also the practical matter of the consequences of such an action. While Trump’s assertion about pardoning himself might simply be a Trump tweet rant, there is the possibility that his defense team decided to float the idea before politicians and the public to see the response. At this point, even some conservatives who support Trump have expressed the view that if he pardoned himself, then Congress should impeach him. Some say that it would be political suicide.
The easy and obvious reply to this view is that Trump seems to be utterly immune to political suicide. During the 2016 election, Trump’s political death at his own hand was predicted repeatedly. After he took office, the predictions continued. While it would have been unthinkable for a president to pardon himself and unthinkable for Congress to not impeach a president who did this, Trump has shown that what was once unthinkable is now thinkable. Because of this, I would not be shocked if Trump pardoned himself and Congress did not impeach him.