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Trump's 'absolute right to pardon myself' does not exist

Michael Knigge
June 5, 2018

Contrary to his claim, the US president likely does not have the right to pardon himself, according to constitutional experts. But the key question is whether Congress would let Donald Trump get away with it anyway.

Donald Trump
Image: picture-alliance/Newscom/C. Kleponis

Can US President Donald Trump pardon himself?

In his comparatively short tenure, President Trump has already issued several pardons, most of them highly controversial due to their clear political nature. On Monday, Trump upped the ante again by declaring via Twitter that he possessed "the absolute right to pardon myself," but added that he did not intend to use it. His assertion, Trump wrote, was based on the opinions of numerous legal scholars.

To check whether Trump's assertion is accurate — which if true would essentially render him above the law — DW asked two legal scholars with expertise on constitutional power and the presidency to weigh in on the president's far-reaching claim.

Short answer: It's complicated

"There is a long standing view both in the justice department and perhaps more importantly in the courts and in our constitutional system that a president can't place himself above the law," said Michael Gerhardt, a constitutional law professor at the University of North Carolina whose book "The Federal Impeachment Process" is considered the standard work on the issue. 

"I think it's pretty clear both from what the founding generation anticipated and from the basic assumptions of the constitution that a self-pardon power just does not exist," concurred Ohio State University law professor Peter Shane, who earlier had published a scholarly article titled "Presidents, Pardons and Prosecutors".

While both legal experts argue that the US Constitution does not grant the president the power to pardon himself, they point out that such a pardon is not explicitly prohibited in the Constitution either.

Joe Arpaio
Trump issued his first pardon for controversial former Arizona Sheriff Joe ArpaioImage: Reuters/L. Segall

In fact, the Constitution touches upon the presidential power to pardon only briefly when it states in Article 2, Section 2 that "he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

But since the Constitution does not explicitly rule out self-pardons and no president has ever claimed such a power, should President Trump try to pardon himself, the US legal and political system would be in uncharted territory.

"Technically speaking a president could attempt to pardon himself," said Gerhardt. "But then the question becomes whether he can get away with that."

Technical and political questions

And that question is a political one, since a legal challenge, according to the scholars, would likely not be successful, because the courts would probably decline to take up the issue.   

That means that if President Trump pardoned himself, Congress would likely be the instrument to act as a check on what the legal experts would consider an unprecedented power grab.

"It is not implausible that members of Congress could regard a self-pardon as being an impeachable offense because it would be such a conspicuous attempt by the president to put himself above the law in an unconstitutional manner," said Shane.

Should Trump try to pardon himself and Congress fail to act, it would set a "dangerous precedent," said Gerhardt, because it would not only dramatically expand the power of President Trump, but every subsequent president.

But that the current Republican-led Congress would serve as a check on Trump is not clear at all given, that his approval rating among Republicans currently stands at 87 percent — higher than many of his GOP predecessors at this point of his time in office.

USA - Kongress verabschiedet Trumps Steuerreform
Would Congressional Republicans oppose Trump pardoning himself? Image: Reuters/C. Barria

Why did Trump claim self-pardon power, if he does not want to use it? 

Like with many things regarding this president, no one really knows why Trump amplified an issue that was brought up over the weekend by his new lawyer, former New York City Mayor Rudy Giuliani. The move could be viewed as a trial balloon to see how such a claim would go over with the public, the media and lawmakers — regardless of whether the president and his advisors are in fact contemplating asserting presidential self-pardoning power.

But what seems clear, said the experts, is that this move coupled with another claim Trump made on Twitter, namely that the appointment of special counsel Robert Mueller was unconstitutional, serves as another milestone in Trump's continued campaign to delegitimize and undermine the Mueller probe into alleged Russian meddling in the 2016 presidential election. That second claim, noted Gerhardt and Shane, is also unfounded. 

What's more, said Shane, asserting a self-pardoning power is also part of Trump's negotiating strategy. "In a way it is the equivalent to impose tariffs on the entire world and then see how far he pulls back from it. You stake out the most outrageous position and then anything else you do looks moderate."