Can Donald Trump Pardon Himself Before Leaving Office?

This constitutionally guaranteed power is one of the most extensive powers wielded by the US president.

File image of outgoing US President Donald Trump.

(Photo: PTI)

Donald Trump’s final few weeks at the White House have been embroiled in controversy and confusion, and despite his efforts, his time at the Oval Office is coming to an end.

While the President has often strayed from political tradition – be it of conceding in advance for the next president-elect or otherwise – the one tradition Trump is expected to make full use of is granting and seeking presidential pardons.

With Trump’s history of legal battles and allegations of fraud, a sustained effort to seek pardons would not be surprising; Especially as his presidential powers will officially terminate on 20 January, 2021.

What is a Presidential Pardon?

The power to pardon is constitutional and one of the broadest powers available to the US president. It means that they wield the power to grant amnesty or commute the sentence of any individual who has broken a federal law.

Often, pardons are given to individuals who have already been convicted of a crime, however, one doesn’t need to be indicted to be pardoned by the president.

The few limitations of this vast power, as stated in Article II, Section 2 of the US Constitution, are that though the president “shall have Power to Grant Reprieves and Pardons”, these pardons are only against “offences against the United States” and do not include “cases of Impeachment”.

So, the President cannot issue a pardon expecting it to undo a congressional impeachment, and the person pardoned is also not impervious to state-headed investigations.

Has Trump Used This Power Before?

Yes, Trump has a history of granting presidential pardons to his associates. Most recently, he pardoned Roger Stone who was convicted of lying to lawmakers under oath by commuting his criminal sentence.

One of his most contentious pardons was granted to Joe Arpaio, former Maricopa County Sheriff, who was pronounced guilty of being in contempt of court for continuing his arrests of immigrants solely based on the suspicion that they were illegal residents, even after a federal judge ordered against the arrests.

According to a report by CNN, Trump’s process of granting pardons is highly personal and unlike previous presidents’, who granted clemencies in association with the Office of the Pardon Attorney, a Justice Department bureaucracy.

Trump has issued 27 pardons in his term, many of them being requests through friends, celebrities or Fox News personalities. CNN also notes that among people the President is most likely to pardon are campaign associates like Michael Flynn who have convictions following Robert Mueller’s probe into Trump’s Russian collusion.

Could Trump Self-Pardon?

Historically, there is no precedent for a presidential self-pardon. Therefore, without official legal deliberation, the legitimacy of the move remains unclear in the face of law.

Yet, in June 2018, Trump posted a tweet claiming that it was his ‘absolute right’ to pardon himself. “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” he wrote.

During the Nixon era, the US Justice Department looked into the matter and in a memorandum by the Office of Legal Counsel (OLC) in 1974, it was iterated that “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”

Several legal experts view this as an argument to believe that a self-pardon is inherently unconstitutional, and others agree that the law does not provide a clear answer on this, rendering Trump’s claim false.

However, the memo also highlights other ways Trump could employ to the power of the presidential pardon. One way this could be done was if the President temporarily declared himself unable to perform his duties and gave his position to the Vice-President. The VP could then issue the president clemency, making it a self-pardon in effect.

The White House counsel’s office still does not consider this a serious possibility and has not proceeded to do research on the matter, CNN reported.

Can the VP Pardon the President?

In 1974, when the OLC memo stated that Nixon could not self-pardon, he resigned in the face of his involvement in the Watergate Scandal that almost certainly guaranteed his impeachment.

Gerald Ford, the next president, proceeded to preemptively pardon Nixon, absolving him of any federal crimes he committed while in office.

Similarly, Trump could negotiate a deal with VP Mike Pence, resign before the dissolution of his presidential powers, making Pence the 46th US president and conferring him the power to pardon him.

However, it is important to note that a deal similar to this would also be Trump’s admission of guilt. This pardon would also not guarantee Trump insulation from the criminal investigations against him by a state persecutor.

(With inputs from CNN, Reuters, The Indian Express and The Independent)