Trump is venturing into uncharted legal territory as he muses about pardoning himself

Chip Somodevilla/Getty ImagesDonald Trump.
  • President Donald Trump is making the case that he has “the absolute right” to pardon himself if he’s accused of criminal wrongdoing.
  • Trump’s power to grant pardons is broad, but the question of whether a president can pardon himself has not been tested before.
  • Mary C. Lawton, who was the acting assistant attorney general during the Nixon administration, opined in 1974 that “under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.”
  • “What’s the alternative?” said one former federal prosecutor. “The Supreme Court actually saying the president is above the law?”

Sign up for the latest Russia investigation updates here »

President Donald Trump declared on Twitter on Monday morning that “numerous legal scholars” agreed he has “the absolute right” to pardon himself.

His lawyers appeared to allude to the same notion in a lengthy memo they sent to the special counsel Robert Mueller in January.

And Rudy Giuliani, the former New York mayor now leading Trump’s defence team, said over the weekend that Trump “probably” has the power to pardon himself.

Trump’s pardon power, as well as its possible limits, became a subject of interest after The Washington Post reported last July, as the Russia investigation picked up steam, that the president asked his advisers whether he could pardon aides, family members, and possibly himself.

It came under the spotlight again in recent days as Trump pardoned the conservative activist Dinesh D’Souza and publicly mused about pardoning the television personality Martha Stewart and commuting the sentence of former Gov. Rod Blagojevich of Illinois.

Trump’s comments raised questions among legal and constitutional scholars, who pointed out that he largely appeared to be using the pardon power to excuse friends, celebrities, and political allies.

Constitutionally, the president’s pardon power is very broad as it relates to federal crimes – something that Trump has repeatedly emphasised.

So far, established constitutional limits on the president’s pardon power prevent it from affecting impeachment proceedings and from being applicable to crimes at the state level.

But legal experts say that doesn’t mean no other constitutional limits exist – they just have not yet been tested.

In the event Trump attempts to use the power to pardon himself, the issue would almost certainly go to the Supreme Court.

Supreme CourtWin McNamee/Getty Images

“The Supreme Court will most likely rule against Trump in that case,” said Jeffrey Cramer, a former federal prosecutor who spent 12 years at the Justice Department. “What’s the alternative? The Supreme Court actually saying the president is above the law?

“A congressman isn’t above the law,” he added. “A Supreme Court justice isn’t above the law. The executive branch is an equal branch of government. It enforces the law, but that doesn’t mean the president is the law. This is a legal question that cuts through everything and goes to the heart of the nation.”

Mary C. Lawton, the acting assistant attorney general during the Nixon administration, also opined in 1974 that “under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.” Nixon resigned from the presidency shortly after.

As Trump and his allies explore the reaches of his pardon power, Mueller is doing the same.

Bloomberg reported last year that as the special counsel lays out a legal strategy, Michael Dreeben, a seasoned prosecutor working with Mueller, is delving into past presidential pardons to ensure Mueller’s case has a solid foundation and could stand up to possible appeals.

In addition to examining whether the president can pardon himself, Dreeben may also be looking into other questions, like how a pardon may affect witness testimony. Pardoning a witness voids their Fifth Amendment right against self-incrimination.

“Can the President pardon someone for a crime, and then pardon them for criminal contempt if they refuse to testify?” Renato Mariotti, a former federal prosecutor, wrote on Twitter in October. “Any limits on it?”

Louis Seidman, a professor at the Georgetown University Law Center who’s an expert on constitutional law, told Business Insider last July that whether Trump can pardon himself was “very questionable” as “a matter of constitutional morality.”

“The more serious threat is that Trump would either pardon everyone else or fire Mueller,” he added. “My own sense, for what it’s worth, is that this outcome is very likely.”

NOW WATCH: Briefing videos

Business Insider Emails & Alerts

Site highlights each day to your inbox.

Follow Business Insider Australia on Facebook, Twitter, LinkedIn, and Instagram.