David Yaffe-Bellany, Tribune News
Service
Any move by President Donald Trump to pardon
himself in his final days in office could backfire, legal experts say, inviting
the incoming administration to challenge the unprecedented action by filing
criminal charges against him.
Trump has raised the possibility of a self-pardon in recent days as calls grow
for him to face prosecution for inciting the US Capitol siege that resulted in
five deaths and sent members of Congress scrambling for safety. But though the
president has vast authority to grant clemency to others, a self-pardon would
be a novel assertion of executive power that both Democrats and Republicans
might want the Supreme Court to strike down.
“It would almost set himself up as a sitting duck to be prosecuted,” said Nick
Akerman, a former Watergate prosecutor. “It takes the edge off the idea that
you’re going after somebody just because they were a political opponent in the
prior administration.”
Trump faced legal threats even before Wednesday’s riot. The administration of
President-elect Joe Biden could decide to revive special counsel Robert
Mueller’s investigation into obstruction of justice by Trump or launch a new
probe into his taxes. But such prosecutions were likely to face stiff
Republican opposition, and Biden has signaled he might prefer to move on.
The Capitol siege has now scrambled political calculations, with many of the
president’s allies abandoning him. The New York Times reported on Thursday that
White House counsel Pat Cipollone warned Trump he could potentially face charges
for encouraging the riot. At a news conference on Thursday, the acting US
attorney in Washington said he would not rule out investigating the president’s
role.
Under such circumstances, a self-pardon may prove tempting for Trump. But many
experts say the idea has weak legal foundations.
To start with, Trump has been shielded from federal criminal prosecution while
in office not by the Constitution or binding Supreme Court precedent but by
internal Justice Department policy. A self-pardon would challenge the
constitutionality of another such policy encapsulated in a 1974 memo citing the
“fundamental rule that no one may be a judge in his own case” and concluding
that “the president cannot pardon himself.”
The Justice Department policy dates from the Watergate scandal, in which
President Richard Nixon resigned and was pardoned by his former vice president,
Gerald Ford. If Trump were to follow that path and accept a pardon from a
President Mike Pence, the act would be on solid legal ground. But a self-pardon
has no historical precedent.
The Constitution says that a president “shall have power to grant reprieves and
pardons for offenses against the United States, except in cases of
impeachment.” Some experts have said they believe this means the power is absolute.
Former George W. Bush Justice Department official John Yoo wrote in an October
2017 New York Times op-ed that the president “can clearly pardon anyone — even
himself.”
But other experts say that would go against the framer’s intent. “If the president can pardon himself, there’s no recourse for federal crimes that he
has committed,” said Jessica Levinson, a constitutional law professor at Loyola
Marymount University, “and that’s not really how our system is set up.”
Akerman points to the verb “grant” as evidence that a pardon is something the president can only bestow on others.
“It’s a transitive verb, the object of which is somebody other than the person
doing the granting,” he said. “Linguistically, it doesn’t make sense that you
can pardon yourself.”
Trump may have thought that the Supreme Court’s 6-3 conservative majority,
which includes three justices he appointed, would side with him in such a
dispute. He repeatedly expressed a belief that the high court would back his
legal efforts to overturn the election results. But the justices, along with
several other federal judges, soundly rejected the president’s arguments.
Experts say they are likely to be similarly skeptical about a self-pardon.
Still, the president may ultimately conclude that the possible benefits of a
self-pardon outweigh the risks. The legal battle over the validity of the
pardon would prolong any prosecution, giving him time to build a stronger
defense and sapping the government’s resources.