The presidential pardon power is an interesting perk of being the leader of the United States. It can be used for good or ill, helping those dealing with unjust legal matters, or as a get out of jail free card for close associates. Presidents have an obligation not to abuse this power, which is why the possibility of a self-pardon is so complex. What is a self-pardon, can a president really excuse themselves of crimes, and has any ever tried?
The Power To Issue Presidential Pardons
One of the many powers of the President of the United States is the presidential power to pardon someone for their involvement in a crime. Typically, this relates to someone who is serving or has previously served time for a federal crime and appealed for a pardon from the president. That appeal may be because they feel they were wrongly convicted, that the punishment didn’t match the crime, or for some other reason where they need to free themselves from further punishment.
The presidential pardon power is stipulated in the United States Constitution under Article II, Section 2. It ensures that the individual cannot face further punishment for their actions. In some cases, these pardons extend to those that are dealing with legal matters and have not yet been convicted. Here, the pardon shows that the president has intervened in the matter, and there will be no further action for the alleged crime in question.
This is something that presidents perform a lot over their time in office, and it can lead to some controversial decisions. However, no president has yet taken the step to issue a self-pardon.
What Is a Self-Pardon?
By these rules of the presidential pardon, a self-pardon would mean issuing a pardon to themselves to avoid potential punishment for a crime. It would be possible for presidents to attempt this, but there are also questions over the morality of the decision and whether it would be constitutional.
Also, there is the fact that any president issuing a pardon to themselves would look guilty as a result. If they had committed a federal crime and were facing impeachment and/or resignation, a self-pardon would not be in their favor. They would surely want to either admit their guilt and follow due process in an honorable way or deny all allegations and maintain a plea of innocence.
A self-pardon is the middle ground where they are practically admitting guilt, but it wouldn’t matter because they absolved themselves and wouldn’t have to face prosecution from then on. It wouldn’t go down well with voters. But, if they are on their way out of office anyway, would they care?
So far, there has been no attempt made by a president to issue a self-pardon. However, there are two cases in recent history where the option may have presented itself.
Richard Nixon’s Pardon Following the Watergate Scandal
In 1974, President Richard Nixon’s cover-up of the Watergate break-in to spy on the Democratic Convention came to light. There was clear audio evidence of his involvement, and he faced impeachment for obstructing justice due to his attempts to end the FBI investigation. At this point, there was nothing he could do but resign and deal with the consequences.
Here, a self-pardon would have been a poor choice if it was ever discussed as an option. All the way through the scandal and up until his death, Nixon had insisted that he was innocent. His resignation speech focused on a lack of support needed to complete the term rather than any criminal activity and wrongdoing. So, a self-pardon before leaving office would have contradicted his claim that he had been seen as a “get out of jail free card” on his departure.
Instead, what happened was that around a month after his resignation, the newly sworn-in President Gerald Ford issued a pardon to President Nixon. It was an unpopular decision, but at least it didn’t look as though Nixon had instigated it. Nixon had the best of both worlds in protecting that plea of innocence and no longer having to face punishment for anything he may have done.
Did Donald Trump Consider a Self-Pardon?
The other more recent situation that could have allowed for a self-pardon is the impeachment of President Donald Trump. It is alleged that President Trump discussed the possibility of pardoning himself during his final days in office, in addition to possible pre-emptive pardons for his family to cover them in case of wider investigations. This is said to have come about after the riot on Capitol Hill in January 2021, as there was the threat of charges related to the matter.
Here, the self-pardon would have been more for protection and possibly spun as to make the prosecutors and future Joe Biden Justice Department out to be the bad guys. He could have potentially used it in his favor.
The other option on the table at the time was to invoke the 25th Amendment because Trump couldn’t complete the term, promote Vice President Mike Pence, and have him issue the pardon instead. This may have carried more weight as there are still uncertainties over the legality and recognition of a self-pardon.
Would a Self-Pardon Be Legal?
The biggest problem with a self-pardon is that because no one has tested the process out, it is unclear whether it would be accepted by the legal system. The Department of Justice’s Office of Legal Counsel is quoted as saying that “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” To act as a judge over your actions and create that pardon could be deemed unconstitutional, and, as the President of the United States swears to protect and uphold the Constitution, a self-pardon may not be accepted.
Right now, there is a lot that we don’t know about the potential impact and legality of a presidential self-pardon, and we can only speculate about what would have happened if Donald Trump had taken that action. It is possible that in the future, there may be another case where a self-pardon becomes a viable option. Then, we will either see a president get away with a federal crime by their own judgment or have that pardon quashed by the legal system.