This week’s eye-popping constitutional question: Can President Trump pardon himself for criminal wrongdoing? With the Russia scandal swirling more intensely around the White House every week, the Washington Post reported Friday morning that the president might be considering pardoning himself and members of his family as a way of fending off legal consequences for whatever special counsel Robert Mueller’s investigation turns up.
A self-pardon would be something new in American history — and just the kind of departure from prior norms that typifies Trump. The Constitution doesn’t specify whether the president can pardon himself, and no court has ever ruled on the issue, because no president has ever been brazen enough to try it. Among constitutional lawyers, the dominant (though not unanimous) answer is “no,” in part because letting any person exempt himself from criminal liability would be a fundamental affront to America’s basic rule-of-law values.
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But as a practical matter, it’s not a panel of legal experts that will decide this issue. It probably won’t be a court, either. Instead, the answer will be fought out at the highest levels of American politics. And in real life, if the president signed a document with the words “I pardon myself”—which he certainly could—it’s impossible to know what would happen next.
Given the political firestorm that a self-pardon might provoke and the broader norm-smashing context of the Trump administration, an attempted self-pardon could do anything from keeping Trump out of jail to bringing down his presidency and landing him in the dock. Or it could do nothing at all—which would be troubling, too. All we can know for sure is that it would take our system, once again, into uncharted territory.
Here’s one possible scenario. Suppose the president announces a self-pardon, and Republicans in Congress follow the script they’ve used until this point: They express concern at the behavior but make no serious move to punish the president for it. The legal effect of the pardon would then go untested for years. A pardon is a shield against a prosecution, and in the absence of a potential prosecution it has no work to do. As long as Trump is president, there won’t be any prosecution to put it to the test, because a sitting president probably can’t be prosecuted for a crime. Again, this isn’t a certainty—the Supreme Court has made clear that a sitting president can be sued in a civil suit, as Bill Clinton was by Paula Jones—but the dominant view on the criminal side is that a President must be impeached and removed from office before he can be a criminal defendant. So while Trump remains president, an attempted self-pardon would be like an umbrella that hasn’t been taken out in the rain: We don’t know yet whether it works, or how well.
After Trump leaves office, the self-pardon would be tested only if the next administration were inclined to prosecute Trump. And this raises a potentially momentous but highly speculative question: How much might Trump’s prosecution be a campaign issue in 2020? Or 2024? Unlike many countries, in America there’s a strong norm that the winners of elections don’t go out and prosecute the losers, as many Trump opponents noted when Trump threatened to prosecute Hillary Clinton last fall. But if Trump pre-emptively pardons himself, he puts that issue on the table: A would-be successor almost has to answer the question. Surely a Trump-friendly successor wouldn’t consider it, and even a seriously anti-Trump candidate might care more about preserving American norms than delivering a comeuppance. But for the past year and a half, behavioral conventions that seemed well-settled have been crumbling almost weekly, and trying to predict how officials might act after four or eight more years like this is like trying to see beyond some constitutional event horizon. And it’s no easier to predict whether—if Trump were subjected to an unprecedented prosecution after his presidency—a court would block the prosecution on the equally unprecedented grounds that the president had pardoned himself.
There’s another possible future, if Trump announces a self pardon: It could be the moment that Republicans in Congress decide he has finally stepped over the line. To be sure, Congress has shown no inclination to remove the president to this point, and maybe it never will. But as the Supreme Court noted long ago, a pardon suggests the existence of illegal behavior—and a self-pardon itself would represent such flagrant disrespect for rule-of-law values that if anything could push Congress toward impeaching and removing the president, this might.
In that case, Congress wouldn’t just be stripping Trump of his presidency: In all likelihood, it would be converting his ostensible pardon from a shield against prosecution into one more reason to move against him. After all, the decision to impeach would, in itself, all but establish that self-pardons are inconsistent with American constitutional norms. So if ex-President Trump were subsequently prosecuted, the courts would be substantially less likely to see his self-pardon as a valid defense. The defendant would be a disgraced rule-breaker, and the self-pardon would be among his sins—indeed, Congress would have deemed it a “high crime and misdemeanor” under the constitutional provision governing impeachments.
So even if Trump announces a self-pardon, the question of whether that announcement “really” created a valid pardon is one that might never be answered. But if it is settled, it’s more likely to be answered by elected officials rather than in court. Either they’ll punish him or they won’t, and if they don’t, the pardon might never matter one way or the other.
So for Congress to play its role in the constitutional system responsibly, its members might need to confront the basic legal question: Whether the constitution is best interpreted as giving the president a power to pardon himself. There are good reasons to arrive at the conclusion that self-pardon is not acceptable. And the very fact that the issue can’t reach a court anytime soon is a further reason why Congress needs to take its constitutional responsibility seriously. If the president announces a self-pardon, the Republican congressional leadership will either let a chief executive with no evident respect for the rule of law trash yet another constitutional norm, or it will finally decide to confront a reckless president who still commands the loyalty of their own party’s voting base. It’s bang or whimper, and it isn’t pretty either way.
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