Can Donald Trump pardon himself?

Ex-president, now fighting four indictments himself, liberally handed out executive clemency orders to his political allies from the White House

Joe Sommerlad
Friday 15 September 2023 13:26 BST
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Trump says it’s ‘very unlikely’ he would pardon himself if convicted and then elected
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Louise Thomas

Louise Thomas

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Donald Trump has already been indicted four times this year, twice at the federal level and twice at state level.

In April, he was arraigned in New York and pleaded not guilty to state charges after receiving an indictment from Manhattan district attorney Alvin Bragg accusing him of manipulating his business records to conceal hush money payments allegedly made to porn actress Stormy Daniels in 2016 to stop her discussing an extramarital affair they are said to have had in 2006 in time to derail his presidential run.

Justice Department special counsel Jack Smith then handed him a federal indictment in May over his alleged mishandling of classified government documents following the conclusion of his one-term presidency and then another in August over his efforts to overturn the 2020 election result, accusing him of conspiracy to defraud the United States, tampering with a witness and conspiracy against the rights of citizens.

In both cases, Mr Trump again pleaded not guilty to all charges.

But that’s not all. Since then, he has received a fourth indictment, this time from Fani Willis, district attorney of Fulton County, Georgia, over his attempts to influence the 2020 vote count in that crucial swing state, which turned blue for Joe Biden and prompted Mr Trump to pressure local secretary of state Brad Raffensperger into helping him “find” the 11,780 ballots he needed to win, a conversation that was recorded and described as “worse than Watergate” by veteran Washington Post journalist Carl Bernstein.

No former or sitting president of the United States has ever been formally charged with a crime before, so for Mr Trump to have received multiple indictments is already history-making, another ignominious claim to fame for the first American commander-in-chief ever to have been impeached twice.

The prospect of Mr Trump winning the presidency again in November 2024 and then attempting to use his presidential pardoning powers to excuse himself is a fascinating prospect that could yet become a reality.

As president between 2017 and 2021, Mr Trump cheerily used his executive clemency powers to hand out pardons to no fewer than 237 people, from Arizona sheriff Joe Arpaio to right-wing content creator Dinesh D’Souza by way of cronies like Steve Bannon, Roger Stone, Michael Flynn, Paul Manafort and George Papadopoulos.

Whether he had the authority to pardon himself was a key question at the time he left office in the aftermath of the deadly Capitol riot of 6 January 2021, which, ultimately, never had to be answered because he did not attempt to do so.

The broad consensus among legal experts back then was that there was no stipulation in place to actually prohibit such an act but, given that there was no precedent for it either, it would likely be subjected to a lawsuit calling into question its legal validity.

While Mr Trump is now a private citizen and therefore has no such powers, he does find himself in the extraordinary position of being thrice-indicted while simultaneously leading the pack for the Republican Party’s nomination to be its candidate for president in 2024, leaving such rivals as Ron DeSantis, Mike Pence, Nikki Haley, Tim Scott and Chris Christie eating his dust in the polls.

There is nothing in the US Constitution to stop someone from running a presidential campaign while under indictment or even having been convicted of a crime, although its 14th Amendment does prevent anyone from running who has taken an oath of office and thereafter engaged in “insurrection or rebellion” against the country, which could ultimately cause problems for Mr Trump should he be convicted over Mr Smith’s charges pertaining to the Capitol riot.

Unless that comes to pass, however, he is free to run for the White House once more. But what would happen if he were to actually win and attempt to use his reinstated pardoning powers for his own benefit is where matters get really knotty.

Justice Department special counsel Jack Smith
Justice Department special counsel Jack Smith (AFP/Getty)

Firstly, presidential pardons are only applicable to federal crimes.

While that means he could potentially absolve himself in the classified documents and 2020 election cases brought by Mr Smith, he could not do the same in the indictments brought by Mr Bragg or Ms Willis, which are state affairs.

Second, the Constitution bans presidents from pardoning themselves from impeachments, meaning any conduct Mr Trump is found guilty of committing in connection with impeachment would not be eligible for a pardon.

Third, any pardon would almost certainly result in a Supreme Court case and the court might not be inclined to side with Mr Trump, despite the current conservative majority on its benches.

A Justice Department memo from 1974 stated: “Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.” While that memo is not law, it could be used to argue for precedent should the situation go to court.

Therefore, if a scenario were to arise in which Mr Trump won the 2024 election but was convicted on charges in the state case (a trial is scheduled for March) or in the federal case relating to the Capitol riot, over which he was impeached, he would not be allowed to pardon himself, likely resulting in a massive and costly legal fight to spare him jail time.

If he found himself unable to avoid that outcome, the situation would almost certainly lead to a third impeachment or his removal from office via the 25th Amendment, which allows the Cabinet to remove a president who is unable to perform their duties.

There are many duties and trappings of the presidency an incarcerated person would simply not be able to carry out from a prison cell, like the viewing of classified materials, to name just one.

We are still very much in hypothetical territory at this point, with any potential conviction for Mr Trump still a long way off and little more than a distant possibility.

But the conversations he has started with his latest bid for the presidency have already pushed parts of theoretical US constitutional law far further than many experts ever believed they might live to see.

Interestingly, Mr Trump did address the prospect head-on in an interview with NBC’s Meet the Press on 14 September, telling host Kristen Welker that he is “very unlikely” to pardon himself should he regain the White House in 2024, saying doing so “would look terrible” and that he had declined the chance to absolve himself at the close of his first term.

“I could have pardoned myself when I left,” the Republican said. “People said, ‘Would you like to pardon yourself?’ I had a couple of attorneys that said, ‘You can do it if you want’. I had some people that said, ‘It would look bad if you do it’, because I think it would look terrible.”

On the likelihood his being tempted to take such action in future, he told Ms Welker: “I think it’s very unlikely. What did I do wrong? I didn’t do anything wrong. You mean because I challenge an election, they want to put me in jail?”

“Very unlikely”, it should be noted, is not quite the same as “no”.

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