Yes, Trump can pardon himself — but it's a risky move that won't protect him from all prosecutions he could face

  • There is growing speculation that President Donald Trump could decide to issue himself a presidential pardon before leaving office in January, as a way to shield himself from future prosecution.
  • On Wednesday, Trump retweeted a post from GOP Rep. Matt Gaetz, which said that the president should pardon "everyone from himself, to his admin, to Joe Exotic if he has to."
  • Under the US Constitution, the president has virtually unlimited powers of clemency in federal cases. 
  • But experts say that any attempt by the president to pardon himself would likely be construed as an admission of guilt and could be successfully challenged in the Supreme Court.
  • A pardon would only apply to federal offenses Trump could be hypothetically found guilty of, and not alleged crimes investigated by state attorneys — like those currently being conducted by Manhattan's district attorney. 
  • Visit Business Insider's homepage for more stories.

In time-honored style, President Donald Trump spent Thanksgiving Eve taking part in the annual presidential turkey pardoning ceremony in the White House Rose Garden.

It's a lighthearted use of the extensive pardoning powers a president holds under the US Constitution.

But speculation is already swirling around a potentially far more serious use to which Trump could put the power, following his decision to pardon former national security advisor Michael Flynn, who in 2017 pleaded guilty to lying to the FBI about his communications with Russia.

On Wednesday, the president retweeted a post from GOP Rep. Matt Gaetz, which said: "President Trump should pardon Flynn, the Thanksgiving turkey, and everyone from himself, to his admin, to Joe Exotic if he has to."

Could Trump use the power to pardon himself? Trump clearly believes he does, as he said in 2018: "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?"

 

It's an issue he's also discussed with friends and allies, according to Vanity Fair. 

Trump has not been charged with any crimes, but faces at least nine possible lawsuits after leaving office, including a criminal probe into his business activities by Manhattan Attorney General Cyrus Vance.

But the presidential pardoning power only applies to federal crimes, so would not apply to any of the nine lawsuits currently being pursued. 

What the Constitution says

Trump enjoys broad immunities from federal probes as president, and there are currently no known federal investigations being conducted into possible crimes by Trump.

But that could hypothetically change after January 20, when he leaves office. 

The US Constitution says that the president's powers of clemency are broad, and certainly does not rule out the president pardoning himself.

It states that "the president … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

Harvard University law professor Mark Tushnet told Vox in 2018: "A self-pardon for ordinary criminal offenses does not fall within that exception, on my understanding."

The Supreme Court would likely be involved

But given that no president in US history has attempted to use the power to absolve himself, many lawyers think it's a move that would face serious legal challenges, and would likely end up before the Supreme Court. 

There are two key legal precedents that would likely come in to play during such a hearing. 

One is a 1915 Supreme Court ruling that some legal experts say means that an attempt to self-pardon for crimes constitutes an admission of guilt.

So self-pardoning would be a risky move for Trump, and could leave him legally exposed. 

However, Michigan Law professor Brian Kalt wrote in The Washington Post that it is possible to interpret the ruling as not signifying an admission of guilt — so it's a gamble Trump may wish to take. 

There is also the opinion of Mary C Lawton, the acting assistant attorney general during President Richard Nixon's administration, who in 1974 said that under the legal rule that no one can be their own judge, the president cannot pardon himself. 

It's another precedent that Supreme Court judges would likely have to weigh if they ever have to decide on the legality of a Trump self-pardon.

Jeffrey Cramer, a former federal prosecutor who served 12 years at the Justice Department, told Business Insider in 2018 that the Supreme Court would likely deem a presidential self-pardon unconstitutional.

"What's the alternative? The Supreme Court actually saying the president is above the law?" Kramer said.

But there is another last-ditch option open to Trump, if he wants to shield himself from possible federal prosecutions.

In theory, he could step down before leaving office, handing the presidency to Vice President Mike Pence, who would then be able to issue a pardon for Trump that would be free from the problems Trump would face if he issued the pardon himself.

It was the route chosen by President Gerald Ford when he pardoned Nixon in the wake of the Watergate crisis.

But it is a move that could well place Pence — who is rumored to be mulling a 2024 presidential run — in political and legal difficulties, according to CNN legal analyst Eliott Williams. 

Ultimately, the fact that a self-pardon is an option being seriously discussed highlights the legal problems that Trump could face when he leaves office. 

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