The Volokh Conspiracy
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Last week, a lame-duck President pardoned a turkey, as is traditional for the Thanksgiving holiday, and then pardoned a former agent of Turkey, which is not. Could the most untraditional of pardons -- a self-pardon -- be next? If so, then what?
Article II, Section 2 of the Constitution provides that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." This power, the pardon power, is among the broadest and least constrained of presidential powers. It has been described as "plenary," and faces no real limits other than those indicated in the text: It only applies to federal crimes ("offenses against the United States") and may not be used to overturn an impeachment conviction. Further, pardons must be for acts already committed--that is, the "offense" must have occurred--but it need not have been investigated or previously disclosed, let alone charged. (For those interested, here's a good CRS report on the pardon power.)
The President may offer a pardon to whomever the President wants, and for whatever reason. This is one reason the inclusion of a pardon power was controversial at the founding, and why some Anti-Federalists, such as George Mason, were upset about it (and why some folks, like my co-blogger Keith Whittington have urged its reform). Fortunately, throughout the nation's history the pardon power is relatively rarely used to excuse corruption or protect a President's cronies. Those few instances--such as President Clinton's pardon of Marc Rich--are controversial precisely because they have been the exception, rather than the rule.
Some have urged Congress to enact legislation to curb the pardon power, but I doubt such legislation would be constitutional. The pardon power is the President's alone, and Congress lacks the power to constrain it. Congress might have the authority to require federal agencies that assist with the administration and execution of pardons and clemency to disclose information, but it is unlikely such legislative oversight could reach the President himself. As the Supreme Court made clear in Trump v. Mazars, Congress does not have free-standing authority to investigate the President for potential wrong-doing, and in the absence of any power to enact substantive legislation concerning the use of the pardon power, it is not clear what legitimate constitutional purpose legislative oversight or mandated disclosure concerning the President's use of the pardon power would serve.
President Trump has (thus far) been particularly stingy in his issuance of pardons. He has also been particularly self-interested, granting pardons and commutations to his political allies. Thus the pardon of Michael Flynn may have departed from historical practice, but it was not much of a surprise. Recall that President Bush did not pardon Scooter Libby (though Trump did). Some commentators have tried to argue that self-serving pardons of presidential allies and cronies are somehow constitutionally suspect, but I do not think these claims hold water. Dicta in lower court opinions noting the potential for constitutional constraints on the pardon power's use concerned conditions placed on offers of clemency, and should not be taken to signify a broader anti-corruption limit on how the pardon power may be used or abused.
Given the number of investigations into Trump's financial and other dealings, there is widespread speculation that the President might try to pardon himself. But can he do that? He thinks so. Most academic commentators and (more importantly) the Department of Justice disagree. A 1974 Office of Legal Counsel memorandum concluded that self-pardons were not within the pardon power because it is inappropriate for the President to be a judge in his own case. The memo is thin, but represents the official position of the Department of Justice. In my view, Brian Kalt makes a more persuasive case against the legitimacy of self-pardons (and at greater length here). Tim Sandefur offers a contrary view, but I am not convinced by it. As I see it, the language, history, usage and understanding of the nature of a pardon all point in the opposite direction. [For more, see this "smorgasbord of views on self-pardoning" collected by Jack Goldsmith.]
While I believe a self-pardon would not actually be a pardon and would be invalid, my opinion is unlikely to hold sway at 1600 Pennsylvania Avenue. So what happens if the President were to try and issue a self-pardon? It is an interesting question.
Recall that the power only extends to federal crimes, so a self-pardon would not have any effect on potential state proceedings against Donald Trump once he leaves office. If Manhattan DA Cyrus Vance is inclined to pursue charges against Trump (or any of his relatives or associates, for that matter), a federal pardon will not stand in the way.
As for federal crimes, note that the initial opportunity to weight the self-pardon's validity would fall to the Department of Justice in weighing whether to bring federal criminal charges in the first place. As already noted, DOJ does not believe self-pardons are valid, and it is inconceivable that the Biden Administration would revise this view. So if the Justice Department were to conclude that Donald Trump committed federal offenses worthy of prosecution, the existence of an attempted "self-pardon" would not stand in the way of an indictment.
No doubt any federal indictment would be met with an effort to dismiss the charges on the grounds that Trump was pardoned. Trump's attorneys would no doubt raise this claim at the earliest opportunity. I suspect this claim would be met with skepticism, however, as it would contradict the longstanding and well-established view of the Justice Department. While OLC opinions are not binding on federal courts, they are taken seriously, and particularly so where (as here) they run counter the executive branch's interests. OLC opinions typically embrace robust conceptions of executive power. Thus an OLC opinion counseling restraint is more notable, and is likely to get extra consideration as a result. [As an aside, it is still possible that OLC could reverse its position between now and January 20. Were that to occur, I suspect any resulting memo would be recognized as a last ditch effort to shore up the President's position, and not a neutral, dispassionate analysis worthy of judicial respect, but that could depend on what any such memo says.]
This is a long way of saying that if Trump tries to pardon himself, he could have a hard time making the pardon stick. It is certainly possible the Justice Department may have no interest in pursuing the former President, whether because it concludes there are no offenses worth pursuing, a sense of political comity, or a prudential judgment that state courts should get the first shot. But should there be such a prosecution, I doubt a self-pardon will offer ex-President Trump much protection in federal court.