A leaked memo by two lawyers defending Donald Trump in the ongoing Russia collusion investigation, and obtained by the New York Times, attempts to tell Special Counsel Robert Mueller that he cannot charge Trump with obstruction of justice because, the memo claims, presidents have total authority over Department of Justice investigations — even investigations of themselves.
“It remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired,” the memo to Mueller, by Trump attorneys Jay Sekulow and John Dowd, reads, as reported by the New York Times.
“Six most startling words in this shocking Trump legal memo: ‘or even exercise his power to pardon.’ Folks, they are intimating he can pardon himself,” wrote Brookings Institute scholar Norm Eisen on his Twitter account after the memo was published by the Times.
But could Trump actually pardon himself? Eisen and Harvard University Constitutional Law Professor Laurence Tribe published an op-ed in Saturday’s Washington Post, headlined, “No, Trump can’t pardon himself. The Constitution tells us so.” But not all constitutional scholars agree.
In fact, one expert on presidential pardons, political scientist P.S. Ruckman, was quoted by Bloomberg News in a 2017 report explaining that a presidential self-pardon would be an extremely simple matter.
“He could write his pardon down on a napkin and sign it — that would be a pardon,” Ruckman said.
A president’s pardon powers are spelled out in Article II, Section One, of the United States Constitution, which reads, “The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
In other words, according to an interpretation by the conservative Heritage Foundation, the only restriction on a president’s use of the pardon is that he cannot issue a pardon to stop an impeachment proceeding. So if Trump were impeached, the pardon power would not help him.
But if Mueller brought criminal charges against Trump, could he pardon himself? That’s where experts disagree, according to NPR. The fact that no president has ever tried to grant himself a pardon makes the situation even more confusing. Samuel Morison, a lawyer who worked in the Justice Department’s Pardon Office for 13 years, says that there is nothing in the Constitution to prohibit a presidential self-pardon.
“My opinion is that in theory that he could,” Morison told Washington Post. “But then he would be potentially subject to impeachment for doing that. There are no constraints defined in the Constitution itself that says he can’t do that.”
In 1974, as the Watergate scandal reached its conclusion just four days before Richard Nixon resigned from the presidency rather than face impeachment, speculation that Nixon would give himself a pardon for crimes he committed in office was so widespread that the Justice Department issued an opinion on the question. In that opinion, the Justice Department concluded that, in fact, a president does not have the power to pardon himself, “under the fundamental rule that no one may be a judge in his own case.”
After Vice President Gerald Ford took over as president following Nixon’s resignation, he granted Nixon a “full, free, and absolute pardon… for all offenses against the United States which he has committed or may have committed or taken part in” while he was in office, as the New York Times reported on September 9, 1974.
In 1998, during the Monica Lewinsky scandal, aides to President Bill Clinton urged him to test that Justice Department opinion and grant himself a pardon for any criminal charges that then-Special Prosecutor Kenneth Starr might bring against him. As the online news magazine Slate reported at the time, Clinton refused and, in fact, made a public promise that he would not pardon himself — which he never did.
Several state governors have issued pardons to themselves, and were successful, according to a historical account compiled by Newsweek. The most recent example came in 1956 when Arkansas Governor Orval Faubus pardoned himself after a brief jail term — but “the details are unclear” around the Faubus self-pardon, or what he went to jail for in the first place, Newsweek reported.