Via Jeffrey Crouch for The Hill
The media is abuzz with speculation about President Trump’s clemency powers after the story broke that his lawyers are mulling options for himself and his family.
The president himself on Saturday seemed to confirm the report, asserting that he has “complete power” to pardon relatives, aides and possibly himself.
How does the clemency power work? Who could he pardon? Can he pardon himself? Should he?
The fact is, Trump can pardon any federal crime, ranging from moon-shining to treason. He may grant clemency as soon as an offense is committed: no need to wait for the offender to be sentenced, tried, or even charged with a crime. Overall, the courts have protected a broad, wide-ranging clemency power for the chief executive. Still, he may not pardon a future federal crime, excuse a state offense, or exercise clemency “in cases of impeachment,” as noted in Article II, Section 2, Clause 1 of the Constitution.
The remedy for an unpopular clemency decision comes from Congress. Members can hold hearings, subpoena documents, call witnesses, and otherwise raise the profile of the clemency decision.
They can also delay funding for presidential priorities, drag their feet on his policy priorities, and refuse to confirm presidential nominees. In more extreme cases, they can pursue impeaching the president, or even try to amend the Constitution.
How likely it is Congress will take these actions, with Republicans in control, is another matter completely.
Who could he pardon?
It’s clear that President Trump could pardon anyone caught up in special counsel Robert Mueller’s investigation – today, if he wanted to do so. He could grant as many or as few pardons as he wished, would not have to specify the crimes they are being pardoned for, and could make the language of the pardon as broad or as narrow as he wanted. Whether the political context would support any of these moves is unclear, but there’s little question that Trump has the legal power to act.
Can he pardon himself?
Most tantalizing, could Trump pardon himself? Few presidents have actually considered a self-pardon, and none has actually tried. If Trump is the first to go through with it, he should know that legal scholars are divided on the question.
On one hand, it is clear that the sparse constitutional language on clemency says nothing about a self-pardon, and the courts have never directly confronted the question. To legal scholars Robert Nida and Rebecca L. Spiro, writing in 1999, the president should be able to self-pardon, largely because the Constitution does not say he is forbidden from doing so.
On the other hand, law professor Brian C. Kalt argued in 1996 that a self-pardon is not allowed by the Constitution. He writes, “a presidential self-pardon … would only be plunder to take home after a career-ending disgrace …” and that the president’s self-pardon would continue to benefit him even after leaving office, and even if he is impeached. Moreover, a self-pardon would be inconsistent with our separation of powers system.
Both sides offer compelling arguments. However, I lean in the direction of Nida and Spiro. The courts have usually given the president a lot of leeway on clemency questions. It’s likely that a self-pardon would end up in front of the Supreme Court. From there, they could find a self-pardon appropriate or not. In fact, it’s entirely possible that they could rule that a self-pardon is permissible, and point out that the remedy for abuse of clemency is what the framers of the Constitution intended for any abuse of power: impeachment.
Whether or not Trump could pardon himself is a different question from whether he should, of course. Considerations related to impeachment play a role here, too, even if it may seem a remote possibility while the House of Representatives and the Senate remain under Republican control.
In 1915, the Supreme Court decided in Burdick v. United States that a pardon “carries an imputation of guilt and acceptance of a confession of it.” If President Trump indeed granted himself a self-pardon, it could be seen as a confession that he needed one. Though the pardon would wipe away his legal problems, he would be creating new political complications. The standard for impeachment, “treason, bribery, or other high crimes and misdemeanors” is not criminal, it’s political, so an acknowledgment of guilt made via a self-pardon could actually become a starting point for impeachment.
Thus, while legally speaking, President Trump has a green light to pardon others, he should carefully consider whether a self-pardon, for all of its obvious benefits, is really worth the risk.
Jeffrey Crouch is assistant professor of American government at American University and author of the book The Presidential Pardon Power. He is the reviews and book editor for AU’s Congress & the Presidency journal.