(Reuters) - The Washington Post reported Thursday that President Donald Trump is talking to advisers about issuing pardons to aides, family members and even himself in order to undermine Special Counsel Robert Mueller’s widening Russia investigation. Trump outside counsel John Dowd told my Reuters colleague Karen Freifeld that the Post’s “stuff on pardons is nonsense,” Dowd said. “It’s just a smear job on the president. It’s not true.”
That said, the Post story raises a couple of interesting questions. Can a U.S. president pardon himself prospectively? And if constitutional law allows a prospective self-pardon, what are the implications for ongoing investigations of the president’s conduct?
Mueller is investigating possible collusion between the Trump campaign and Russia during the 2016 presidential election. Moscow has denied interference in the U.S. election, and President Trump has said his campaign did not collude.
The U.S. Constitution does not specifically prohibit presidents from pardoning themselves before they’re formally accused of wrongdoing (a person need not be charged to be pardoned). So if President Trump, who has not been implicated in wrongdoing, were to decide to grant himself a pass from any prospective prosecution, he would not be violating the letter of the Constitution.
But he would be stretching the bounds of presidential power as they’ve never been tested before – and, more importantly, legal experts told me, Trump probably would not be able to halt Justice Department and congressional investigations simply by pardoning himself and any allies known to be under scrutiny.
In fact, attempting to use pardons to obviate the special counsel investigation could backfire, said Walter Dellinger, who wrote about prospective presidential pardons as a top official in the Clinton Justice Department in 1995. Pardons themselves might raise questions about obstructing justice, Dellinger said. Prospective pardons would also remove Fifth Amendment obstacles to congressional testimony from those who received them, since you can’t assert a right against self-incrimination if you aren’t facing criminal consequences.
No court in the U.S. has ever had to decide whether a president has the authority to pardon himself because no president has ever done so. Before Trump, the only previous president known to have contemplated a pardon for himself was Richard Nixon as he faced possible obstruction of justice charges from the Watergate special prosecutor.
Nixon asked his Justice Department whether a self-pardon was legal. Justice lawyers issued a memo opinion in 1974 advising that it was not. The DOJ memo said that under the age-old legal maxim that no one can be the judge of his own case, even the president of the United States cannot pardon himself.
The 1974 Justice Department memo is the first, last and only official word on a U.S. president’s power to pardon himself, according to Michigan State law professor Brian Kalt, who has been thinking and writing about presidential self-pardons since he was a Yale Law student in the 1990s. The issue has simply never come before a U.S. court, even tangentially.
In fact, the mere discussion of the legality of presidential self-pardons leads to a rabbithole of unanswered hypotheticals, such as whether a sitting president can be indicted or prosecuted, said law professor Sanford Levinson of the University of Texas. It’s not clear, Levinson said, whether a special counsel could go to court to challenge a presidential self-pardon if the special counsel can’t prosecute the president while he’s in office. “It’s just a conundrum,” Levinson said.
Kalt, who has become a mini-celebrity since the Trump self-pardon news broke, told me that in the vacuum of precedent, both proponents and opponents of self-pardons have legitimate arguments. He said he believes the stronger argument is against the legality of presidents pardoning themselves. According to Kalt, the primary argument that presidents can pardon themselves is that the Constitution doesn’t say they can’t.
But three factors, he said, weigh against legality: the traditional meaning of the word pardon, which implies one person giving and another receiving; the legal principle against serving as one’s own judge, as cited in the Nixon memo; and the text of the U.S. Constitution.
Here’s why. Article II of the Constitution authorizes the president to “grant reprieves and pardons for offences against the United States, except in cases of impeachment.” That language, Kalt said, gives presidents immense power. We’ve seen presidents, for instance, issue pardons to people who haven’t been charged with any crime, most famously when President Gerald Ford pardoned Richard Nixon before Nixon was charged with obstructing justice. Presidents can also pardon people whose identities are unknown, as when President Jimmy Carter granted amnesty to all Vietnam draft evaders.
But the words of the Constitution do not give the president unlimited pardon powers. Kalt looked back to James Madison’s notes from the 1787 Constitutional Convention and found that the framers discussed whether treason ought to be excluded from the president’s pardon powers in case the president were a traitor. The drafters, according to Kalt, concluded that if the president were a traitor, “he can be impeached and prosecuted” under the language they adopted.
Outside of that context, Kalt said in a May 2017 Foreign Policy analysis, self-pardons “never came up, which is a very telling omission in a discussion about criminal presidents abusing the pardon power,” he wrote. “It apparently went without saying — literally — that self-pardons are not possible.”
Constitutional language brings me to my second point. The pardons clause, as you probably noticed, explicitly says that presidents cannot grant pardons from “cases of impeachment.” That clause, said former Clinton Justice official Dellinger, could give special counsel Mueller a mandate to continue investigating the Trump campaign even if the president were legally entitled prospectively to pardon himself and everyone else under Mueller’s scrutiny for possible violations of federal criminal laws.
Dellinger drew an analogy to Whitewater independent counsel Kenneth Starr, who did not charge President Bill Clinton with crimes but prepared a report that served as the basis for articles of impeachment against the president. “The pardon clause expressly does not apply to impeachment,” Dellinger said. “That’s the same reason Starr kept going.” (I can imagine the Trump team countering Dellinger’s point with the argument that grand juries are convened to investigate crimes, not politics, and if the president has prospectively pardoned every potential target, the grand jury must be dismissed.)
If Trump were to pardon himself prospectively – and particularly if he were to attempt to use that pardon as a rationale to end Mueller’s investigation prematurely – the FBI and Congress could end up investigating whether the president’s motives, and the motives of Justice Department officials who implemented his orders, were proper.
“It would be obstruction of justice for any officials to order an end to the investigation for an improper purpose,” said Dellinger, who pointed out that FBI investigations like the Mueller probe have their own momentum and are very hard to shut down.
Moreover, said law professor Levinson, a presidential self-pardon is “irrelevant” to congressional investigators. The Senate Intelligence Committee, he said, seems to be engaged in a serious attempt to find out whether Russia influenced the 2016 election. The committee has a right to demand the same records Mueller is looking at, he said.
And if the president issues blanket prospective pardons, including one for himself, Levinson predicted that “the political pressure will become unbearable.”
Presidential pardons do not carry an implication of guilt. Presidents have exonerated people who steadfastly maintained their innocence even as they accepted the pardon. If President Trump were to pardon himself, he’d be conceding nothing about his criminal liability in the Russia investigation.
But given the questionable legality of the maneuver and the likelihood that probes would continue and even intensify, it’s hard to see what a self-pardon would accomplish for the president. Trump has obviously broken political norms at a dizzying rate. The convention against pardoning himself is one he should think hard about leaving intact.
The views expressed in this article are not those of Reuters News.