WASHINGTON – President Donald Trump’s unrestrained use of his pardon powers, which he has used to help allies, has raised a question debated among legal experts: Can a president pardon himself?
This question has been percolating since at least 2018 when the special counsel investigation on Russian election interference was well underway and some of Trump’s closest aides, including former campaign chairman Paul Manafort and former national security adviser Michael Flynn, had been indicted.
There was speculation, fueled by Trump himself, about whether he would attempt to undo the work of former special counsel Robert Mueller by issuing a slew of pardons – even for himself.
Here are answers to some of the most common questions about what Trump can and cannot do with the broad pardon powers of the president:
Can Trump pardon himself?
Justice Department policy says Trump cannot pardon himself because no one can be a judge whose official actions would directly affect himself or herself.
“Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” stated an Office of Legal Counsel opinion dated Aug. 5, 1974, days before President Richard Nixon resigned.
The opinion, though, outlines another way: The president could step down under the 25th Amendment, at which time the vice president steps in and grants him the pardon, and then the president resumes office.
Still, there is no consensus among legal experts on whether or not a president can pardon himself. Because no president has ever done so, courts have not had to tackle the question.
Can Trump really do that?:The presidential pardon power, explained
Laurence Tribe, a Harvard Law School constitutional professor; Richard Painter, a White House ethics lawyer under President George W. Bush; and Norman Eisen, a White House ethics lawyer under President Barack Obama agreed with Justice Department guidelines.
They said that the Constitution gives the president the power to act as a judge in another person’s criminal case as he sees fit. It also allows him to pardon anyone at anytime, as long as the crime is a federal offense. But it does not give him the power to make such decisions regarding his own actions.
“The Constitution specifically bars the president from using the pardon power to prevent his own impeachment or removal,” they wrote in a 2017 Washington Post op-ed. “It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision makes no sense if the president could pardon himself.”
A president might also avoid taking such action for political reasons, Brian Kalt, a law professor at Michigan State University, wrote in 1996.
“He might choose to maintain his innocence and avoid the imputation of guilt carried by a pardon,” Kalt wrote.
But John Yoo, a former Justice Department official under George W. Bush, argued that the president’s pardon powers are absolute. He can pardon anyone, including himself.
Jonathan Turley, a law professor at George Washington University, argued the Constitution does not bar presidents from pardoning whomever they want.
“There is no language specifying who may or may not be the subject of a pardon. The president is simply given the power to pardon for any federal crime,” Turley wrote in a 2018 USA TODAY op-ed.
What is a preemptive pardon?
A preemptive pardon is granted to someone who has not been charged or convicted of a crime. The Supreme Court held in 1866 that a president can issue pardons “at any time after” an offense is committed, “either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”
On Tuesday, the New York Times reported that Trump’s personal lawyer Rudy Giuliani discussed a possible preemptive pardon that would shield him from the prospect of federal criminal charges arising from his work as the president’s aggressive defender-in-chief.
The pardon discussion involving Giuliani prompted a swift denial from the former mayor.
“NYT lies again,” Giuliani tweeted. “Never had the discussion they falsely attribute to an anonymous source. Hard to keep up with all their lies.”
Giuliani’s attorney, Robert Costello, maintained that Giuliani had no need for a pardon.
“Rudy Giuliani did nothing wrong,” the attorney said. “That’s always been our position, and that hasn’t changed.”
Federal investigators in New York have been examining Giuliani’s business dealings with two men who were indicted last year on campaign finance violations. Ukrainian-born Lev Parnas and Igor Fruman of Belarus are accused of conspiring to circumvent federal campaign finance laws by funneling foreign money to U.S. political candidates in a scheme to buy influence.
Preemptive pardons are unusual but not unprecedented.
President Gerald Ford pardoned his predecessor, Nixon, for any crimes he might have committed related to the Watergate scandal. President Jimmy Carter preemptively pardoned hundreds of thousands of men who avoided the draft during the Vietnam War.
President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger and former CIA official Duane Clarridge before they were tried on charges tied to the Iran-Contra scandal. The two have been charged, but Bush pardoned them before their trials were set to begin.
Can a pardon be reversed?
Generally, pardons are irreversible. Congress and courts can’t reverse them, but a president can – to some extent.
In 2008, President George W. Bush took the unusual step of revoking a pardon he gave to Isaac Robert Toussie, a real estate developer convicted of mail fraud after learning that Toussie’s father was a major Republican donor. Bush was able to revoke the pardon, which he granted just the day before, because the pardon attorney had not signed the grant of clemency.
Still, the Supreme Court has not tackled the question of when a pardon is no longer revocable.
“Some people would argue that as soon as the president signs a warrant that the pardon is effective. Others could just as plausibly argue that there also has to be some form of communication or delivery to the person who’s pardoned. And that the president, until that occurs, could change his mind, so I think the operative question here is going to be what constitutes delivery and we don’t have a Supreme Court opinion on exactly what that would be,” Dan Kobil, a law professor at Capital University in Ohio, told NPR in 2008, shortly after Bush reversed the pardon.
What is the difference between pardon, clemency and commuting a sentence?
Clemency is a broad term that encompasses both pardons and commuting a sentence. Pardons and sentence commutations are the two common forms of clemency, which is a way to provide relief to someone who had been convicted of a crime.
A pardon forgives past crimes and restores a person’s civil rights. A commutation reduces a person’s sentence, either partially or completely.
Roger Stone gets clemency:Trump grants clemency to ally Roger Stone after railing against ‘unfair’ conviction, sentencing
Trump’s use of his clemency powers has drawn scrutiny because he has granted these to people with personal or political connections to him or in cases indirectly tied to him. And he has done so often without consulting with the Justice Department’s Office of the Pardon Attorney, which traditionally advises the president on who qualifies for clemency.
Most notably, Trump pardoned Flynn, who pleaded guilty to lying to the FBI about his communications with a former Russian ambassador. He commuted the entire sentence of Roger Stone, a longtime ally who was convicted of lying to Congress for protecting Trump and his campaign from the Russia investigation.
So far, Trump has granted 27 pardons and 11 commutations.