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President Trump’s decision to pardon former national security adviser Michael Flynn has fueled speculation that Trump may be gearing up to issue a wave of controversial pardons during his final weeks in office, including potentially to himself.
The pardon power granted by the U.S. Constitution is incredibly broad, but the question of whether presidents can pardon themselves has never been tested. Trump has reportedly been “obsessed” with the idea of a self-pardon for years and has publicly stated that he has the “absolute right” to issue one. Earlier this week, he retweeted a Fox News segment in which GOP Rep. Matt Gaetz called on Trump to pardon himself.
Trump has been shielded from prosecution while serving as president, but he faces a slew of investigations once he leaves the White House. There currently are two active inquiries into his business dealings in New York and a pair of civil suits from women who have accused him of sexual misconduct. Legal experts say Trump may also face liability for his actions while in office, including possible obstruction of justice charges relating to the Russia investigation or impeachment.
Why there’s debate
Some experts argue that, given the substantial legal risk Trump faces once he leaves office and his record of offering clemency to associates connected to his own potential crimes, like Flynn and longtime ally Roger Stone, it seems inevitable that he will try to pardon himself. Most legal scholars believe a self-pardon would not hold up in court. But the mere possibility that it could — plus the time a lengthy legal battle over the issue would buy him — may be enough incentive for Trump to try.
Others see a path for Trump to protect himself without issuing a self-pardon. He could step down from the presidency during his final days in office and seek a pardon from Vice President Mike Pence. President Gerald Ford famously pardoned his predecessor, Richard Nixon, after his resignation.
Even with that possible motivation, many argue that either a direct or roundabout Trump self-pardon is unlikely. For one, a pardon would clear Trump of only any federal crimes, not the investigations he currently faces at the state level. Pardoning himself would also run counter to Trump’s emphatic insistence that he did nothing wrong and is the victim of a “witch hunt,” since the Supreme Court has ruled that accepting a pardon means admitting guilt.
A self-pardon may also backfire by giving the Biden administration more motivation to aggressively investigate Trump’s potential crimes, something the president-elect has shown little interest in doing once he is sworn in.
Trump is probably going to pardon himself
“Now that he has lost the election, Mr. Trump will likely pardon himself, friends, family members and Trump business entities and employees for any crime they might have committed before or during his presidency.” — Jack Goldsmith, New York Times
The Constitution forbids a president from pardoning himself
“It's not about whether Trump can pardon himself, but whether he can grant himself a pardon. This may sound like the exact same question, but bear with us. According to context clues from the text of the Constitution and the word’s meaning at the time it was written, the answer is no. He cannot pardon himself.” — Sarah Midkiff, Refinery29
Trump can protect himself by pardoning his alleged co-conspirators
“If Trump can buy silence with his pardons of others, he might not even need to pardon himself.” — David Frum, Atlantic
A self-pardon wouldn’t free Trump from the greatest legal risks he faces
“Even if Trump can pardon himself or have Pence do it for him, a self-pardon would only protect him from federal crimes and not a number of ongoing investigations and civil suits currently underway.” — Bess Levin, Vanity Fair
There’s nothing stopping Trump from trying to pardon himself
“When people ask me if a president can pardon himself, my answer is always, ‘Well, he can try.’ The Constitution does not provide a clear answer on this.” — Constitutional law professor Brian Kalt to Reuters
Trump won’t do anything that involves admitting he did something wrong
“If Trump pardoned himself, he would be confessing to criminality of at least some part of his presidency. Coming from a president who has made false or misleading claims more than 22,000 times, that would be a rare acknowledgment of truth.” — Former Rep. Elizabeth Holtzman, D-N.Y., USA Today
Trump cares too much about how he is perceived to pardon himself
“Trump would have to not only forfeit his pride but also give the lie to a long record of disclaimers, most recently his assertion that he’s been described as ‘the most innocent, honorable man ever to hold the office of president.’ For a president who has mused that his likeness should be added to Mount Rushmore, a pardon on his way out the door would bring the very penalty it is meant to erase: a story that future generations would forever know.” — Stanley Arkin, Karen J. Greenberg and Michel Paradis, Washington Post
It’s possible that the Supreme Court would rule in Trump’s favor
“It is unclear who, if anyone, would have the necessary legal standing required to challenge a presidential self-pardon in court. And even if a challenge was successfully brought, the ultimate decision would likely rest with the United States Supreme Court. How many of its six Republican-appointed justices (including three nominated by Trump himself) would oppose a Republican president’s self-pardon attempt? Unclear.” — Jeffrey Crouch, The Hill
Biden is unlikely to challenge Trump’s attempts to pardon himself
“He probably believes he has the power to pardon himself. He’s wrong, but because his successor will be governed by prudence that Trump wouldn’t understand, he’ll probably never find out.” — Harry Litman, Los Angeles Times
A self-pardon would only make Trump’s legal troubles more severe
“If Trump tries to ‘grant’ himself a pardon, that’ll be the strongest possible argument for
Joe Biden’s [Department of Justice] to investigate all of Trump’s many federal crimes and prosecute them to the hilt, in part to establish the incompatibility of self-pardons with the Rule of Law.” — Legal analyst Laurence Tribe
Pence may not be willing to take the risk of granting Trump a pardon
“The problem is, that's fraught with peril politically for Mike Pence, because ultimately he would be stepping into a political time bomb.” — CNN legal analyst Elliot Williams
Trump should pardon himself to prevent politically motivated retribution
“I’m thinking to myself that people that are saying they’re going after Trump don’t even have a crime to charge him [with]. So it is like he should pardon himself because they’re going to [go] after him and then find the charge. So wouldn’t you tell Trump, yeah, you should pardon yourself because these people are coming after you without even a crime?” — Greg Gutfeld, Fox News
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