Donald Trump “probably” has the power to pardon himself, his lawyer, Rudy Giuliani, said Sunday morning. But he likely won’t.
As Huffington Post reports, Giuliani made the rounds of the Sunday-morning news roundtable shows, including NBC’s Meet the Press and ABC’s This Week With George Stephanopoulos, the former New York City mayor spoke of the possibility of the 45th president issuing a pardon to himself. And both times, Giuliani said the same thing: Trump “probably” can pardon himself, but won’t.
Speaking first to Stephanopoulos, Giuliani spoke of the “interesting constitutional argument” and how it applies to the current president.
“He has no intention of pardoning himself… not to say he can’t… I think the political ramifications of that would be tough. Pardoning other people is one thing. Pardoning yourself is another.”
Appearing later on Meet the Press, Giuliani made it even more clear that, even though (as he believes) the president likely can pardon himself, Trump won’t do it.
“The president of the United States pardoning himself is unthinkable… it would probably lead to immediate impeachment.”
It’s an idea that Preet Bharara, a former U.S. attorney fired by Trump, has also professed, who once described the idea of a president pardoning himself as “self-executing impeachment.”
At issue here are two legal and constitutional matters.
First, can a presidential pardon be issued even if the person being pardoned has not been charged with any crimes? The answer to that question is clear and unequivocal: absolutely, and there’s legal precedent for it. Gerald Ford pre-emptively pardoned his predecessor, Richard Nixon in 1974, even though Nixon had not been charged with any crimes. Nixon died a free man in 1994, having never been indicted for any criminal acts.
Second, can the person being pardoned by the president be the president himself? As NBC reported in July 2017, the Justice Department is of the general opinion that it’s not possible. There’s no legal precedent for it, and if it came up in a court, it would likely come down to a matter of parsing the timeline of events.
“Under several administrations, the DOJ has provided legal guidance stating that the president cannot be indicted in office, but can be indicted when he leaves office — which implies a president has left office without pardoning himself, which would obviously moot any such indictment.”
Of course, none of this has come up in the course of American history, and it would likely take a court decision to settle the matter one way or the other. And Giuliani seems convinced that Donald Trump won’t be the president to test the issue.