Self-pardon? It might not go how Trump thinks.

Josh Gerstein

An unprecedented move by President Donald Trump to grant himself a pardon during his remaining days in office could divide his handpicked Supreme Court majority.

Court-watchers are bracing for an epic, intra-Federalist Society clash that could determine whether Trump — and future presidents — can declare themselves immune from criminal investigations even after leaving the White House.

“I think it’s a very close question whether it would ultimately be allowed to go forward, but I think there’s a chance a self-pardon might be struck down and be found to be the only limit on the pardon power,” said Kristin Hucek, a former lawyer in the Justice Department’s Office of the Pardon Attorney.

The Constitution contains no explicit bar to a president giving himself or herself a pardon, but some scholars contend the founders implied that the clemency power should not be used for self-dealing.

The long-running legal debate, which has quickened in recent days amid reports that the president has discussed the idea of a self-pardon with aides, has gained fresh urgency now that Trump has stacked the court with three dyed-in-the-wool conservatives: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

While most of the justices claim to be both textualists — meaning that they adhere closely to the literal words of the Constitution— and originalists — who believe the intent of the founders is crucial to interpreting the law — cleavages sometimes emerge and they might do so again in a case over the validity of a Trump self-pardon.

“Those engaged in the originalist project, looking at history, would think about what they could have meant,” Ethan Leib, a law professor at Fordham University, said of the founders. “To be faithful to that meaning means not doing it just to engage in self-protection.”

However, a strictly literal, textualist interpretation of the Constitution might favor Trump, since advocates for limiting his power could be accused of inventing words not actually in the text.

Last June, Gorsuch surprised and disappointed many conservatives when he joined the court’s liberals and Chief Justice John Roberts in a literalist, textualist interpretation that found LGBT people are protected by existing, half-century-old law against sex discrimination in employment.

While the lawmakers who voted the language back in 1964 almost certainly did not think it prohibited discrimination against gays and lesbians, Gorsuch — who wrote for the court’s majority — said such a ban was clearly required by the words Congress used. The three other conservatives on the court at the time dissented, disputing Gorsuch’s reading of the law. But they also took more of an originalist tack, arguing that his approach produced a result flagrantly contradictory to the clear intent of the law.

Those faultlines suggest that Trump can’t simply count on the court’s conservative majority to rule as he wishes.

“It’s certainly an issue of first impression,” Hucek said. “There might be some appeal for more conservative….justices that a self-pardon is not something contemplated in the Constitution.”

There is one specific exclusion from the president’s pardon power: The Constitution says it does not apply to impeachments. Courts and legal scholars are also generally in agreement that a president cannot grant pardons for crimes not yet committed. And because the federal government and state governments are considered separate sovereigns, a presidential pardon would not absolve someone from state crimes. That could be pivotal in Trump’s case, with both the Manhattan district attorney and the New York attorney general pursuing investigations into his business dealings.

One of the first decisions about how to respond to a Trump self-pardon would fall to President-elect Joe Biden’s appointees at the Justice Department. They would have to decide whether to permit federal investigations into Trump, whether for his potential culpability in the Capitol riot last week, his efforts to lean on state officials to overturn the election results or the raft of other potential crimes cataloged in Special Counsel Robert Mueller’s report.

DOJ’s only public word on the issue came from its Office of Legal Counsel (OLC) in August 1974, at the height of Watergate. Acting Assistant Attorney General Mary Lawton said such a pardon wouldn’t be valid. “Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative,” Lawton wrote.

However, the memo was evidently hastily drafted and was merely an “outline” of the law, not a formal opinion. Nixon ultimately opted against a self-pardon, but got one instead from his successor, President Gerald Ford.

Hucek, now with law firm Keker & Van Nest, says she thinks that if Trump tries to pardon himself the Biden Justice Department will quickly review its 46-year-old conclusion and make something public about the result.

“Given how high-profile this is and how sensitive this is, I think DOJ leadership will issue some kind of guidance,” she said.

Biden has hinted that he chose Merrick Garland, who is highly esteemed by lawmakers in both parties, to give credence to sensitive decisions the Justice Department may have to make in the coming months about how to handle various allegations against Trump. A review of the 1974 legal assessment could well wind up at the top of the list.

As Biden announced the choice of Garland last week, the president-elect suggested Trump should face legal consequences for his actions related to the riot at the Capitol a day earlier.

“Our president is not above the law. Justice serves the people. It doesn't protect the powerful. Justice is blind,” Biden said. “What we saw yesterday, in plain view, was another violation of a fundamental tenet of this nation. Not only do we see the failure to protect one of the three branches of our government. We also saw a clear failure to carry out equal justice.”

However, Biden has also pledged not to get involved in the prosecutorial decisions of the Justice Department, including whether his predecessor should face charges.

Leib said he agrees with the 1974 OLC memo’s conclusion that a self-pardon would be invalid, but believes it should rest on a broader rationale involving the president’s duty to faithfully execute the laws.

The structure of the Constitution and the stated concerns of the founders about unchecked executive power also back the notion that a president can’t pardon himself, Leib said.

Other scholars have argued that the wording in the Constitution about the president’s “Power to grant Reprieves and Pardons for Offenses against the United States” implies giving a pardon to someone else — not yourself.

Hucek raised a similar concern, speculating about how the flowery language of a clemency grant to one’s self would be phrased. “It would just be very strangely worded … he would have to refer to himself in the third person and then sign it,” she said.

It’s also unclear how Trump would specify what crimes he was excusing himself from responsibility for or whether he would attempt a broad, time-based pardon, like the one President Gerald Ford granted President Richard Nixon for any crimes he may have committed while in office.

Trump’s lawyers might also balk at writing up a pardon for him, especially if he seeks to sweep in his conduct in advance of and during the violent assault on the Capitol last week.

However, Leib said he suspects a loyal outside attorney like Rudy Giuliani would draft the language if the White House counsel’s office lawyers refuse to help Trump.

“There always seems to be someone to serve him,” the professor said.

But judges and justices may also have qualms about being thrust into the role of deciding which pardons are legitimate and which are not. In recent days, there has even been speculation that Trump might issue pardons to his supporters charged with taking part in the violence at the Capitol.

“I think people really need to think about, what if you learned an hour from now that [Trump] was pardoning all the people who have been arrested?” said Rep. Conor Lamb (D-Pa.). “The powers of his office probably allow him to do that.”

Trump critics have tried, without success, to challenge some of his past pardons. Just last month, a judge rejected a claim that Trump’s pardon to former national security adviser Michael Flynn was “corrupt” and invalid due to the fact that the investigation Flynn admitted to lying in was focused on Trump.

Leib said that whatever the justices’ views may be on Trump or constitutional interpretation, he thinks they are unlikely to reject a Trump self-pardon because so many on the current court adhere to a view of a largely unfettered presidency.

“If it ever goes to the Supreme Court, there’s a pretty strong executive power group up there right now,” the professor said. “They might even come around to our view [about limits on the pardon power], but decide that isn’t enforceable in court…The idea that Clarence Thomas and Brett Kavanaugh are going to vote to disable a presidential power seems far-fetched to me.”