During Donald Trump’s first term, legal scholars were already debating whether a president can self-pardon.
With special counsel Robert Mueller investigating Russian interference in the 2016 election, Trump and his attorneys said the president hadn’t done anything wrong—but that he could legally pardon himself if he wanted to.
Legal scholars were divided on whether the U.S. Constitution bars self-pardons, which would put the president above the law, or whether self-pardons are legal but inadvisable. In any case, the Constitution clearly says presidential pardons only extend to federal crimes, not state crimes.
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That means Trump could perhaps pardon himself for the federal charges he’s facing connected to the Jan. 6, 2021, riot on the Capitol, along with his alleged mishandling of classified military intelligence.
But he can’t pardon himself for his 34 convictions of fraud in connection with hush money payments he made to adult film actor Stormy Daniels, which were handed down in a New York state court. He also can’t pardon himself for the 2020 Georgia election interference case, which is being heard in a Georgia state court.
In theory, only the governor of New York or the five-member Georgia State Board of Pardons and Paroles can give the president clemency in his state cases. In practice, though, there would be little stopping the president from pardoning himself for all of his alleged crimes.
What crimes can Trump pardon?
Article 2 of the U.S. Constitution gives the president the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
That means the president can grant clemency for federal crimes, but not states crimes, according to the Department of Justice. Pardons are administered by the Department of Justice’s Office of the Pardon Attorney, which normally would not carry out an illegal pardon.
However, Trump officials have a plan to stack the White House Office of Legal Counsel with loyalists who will provide flimsy legal cover for anything the president wants to do. Project 2025, which was drafted by some of Trump’s closest advisers, also calls for putting the Department of Justice under the president’s direct control.
The White House counsel could come up with a weak legal justification, such as a new judicial interpretation of the “offenses against the United States” described in the Constitution. Then Trump could order his new, lacky-ridden DOJ to carry out the pardon.
Who could challenge an illegal self-pardon?
Presidential pardons must be exercised in the “public interest,” which should mean that a president can’t self-pardon, according to some legal scholars. But the question is who would challenge Trump’s pardon.
Normally the answer might be the Department of Justice, but that seems unlikely if Trump packs the agency with yes-men and -women. It would therefore fall to Congress to investigate, since the president can’t pardon an impeachment. That’s not likely to happen with Republicans taking control of the Senate.
And if a challenge somehow did start making its way through the court system, it would end up in front of a very Trump-friendly Supreme Court.
The president hand-picked three of the justices, which held in July that a president has “absolute immunity from criminal prosecution” for “official acts.” The Court didn’t say what would be considered an official versus unofficial act, meaning the president basically now has the power of a king, according to critics.
That ruling doesn’t instill much confidence that the court would limit Trump’s self-pardon power. After all, the justices have basically put the president above the law, meaning he might not have a conviction to pardon in the first place.
Can the president preemptively pardon himself?
One thing is certain: If Trump can, in fact, pardon himself for his alleged federal crimes, he can do it before there’s even been a conviction. Although it’s “highly unusual,” presidents can pre-emptively pardon, according to the Office of the Pardon Attorney.
President Gerald Ford pardoned Richard Nixon after Watergate, President Jimmy Carter pardoned Vietnam War draft dodgers, and President George W. Bush pardoned Caspar Weinberger, who was indicted in the Iran-Contra scandal.
None of the defendants had been convicted of their alleged crimes. That means Trump can get rid of his federal charges on his first day in office, and it will be up to Congress to try and stop him.
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