Donald Trump prompted intense debate among legal experts earlier this summer by insisting he could pardon himself, something no US president has ever done.
“As has been stated by numerous legal scholars, I have the absolute right to pardon myself, but why would I do that when I have done nothing wrong?” he tweeted in June. “In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!”
But now, with Trump’s former campaign chairman Paul Manafort and former personal lawyer Michael Cohen facing prison, the president’s power to pardon is getting renewed attention.
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Why would Trump pardon himself?
In theory at least, Trump could pardon Cohen and Manafort in an attempt to avoid the pair “seeking to offer incriminating evidence on Trump in an effort to get a lesser sentence”, says the Washington Post’s Erik Larson.
But in court, Cohen admitted he broke campaign finance rules by organising for two women to be kept quiet and said that he did so “in co-ordination with and at the direction of a candidate for federal office” - Trump. “That makes Trump an unindicted co-conspirator, a phrase most often associated with President Richard Nixon during Watergate,” says Time magazine.
While constitutional experts disagree on whether a sitting president can be indicted, there’s “nothing that would prevent Trump from being charged after he left office”, adds the magazine.
So while Trump “could pardon Manafort, Michael Cohen, Donald Trump Jr, Jared Kushner, and really anyone he wants”, should he be indicted, it’s “less clear whether he can pardon himself”, says Vox.
Could he do it?
Presidents “definitely can’t use the pardon power to impede impeachment proceedings against themselves or any other officials”, adds Vox.
But there’s disagreement among legal experts about whether the president can use a pardon to defend himself against future prosecution upon leaving office.
Counting against the President is a US Supreme Court case from a century ago, Burdick v United States, which makes clear that acceptance of a pardon is a legal admission of guilt.
If Trump “went down the self-pardon path out of contempt for special counsel Robert S. Mueller III’s investigation, he could paint himself into a dangerous corner”, says Ken Gormley author of Presidents and the Constitution: A Living History. “He’d admit being guilty of serious crimes that match the classic definition of an impeachable offense.”
It’s for this reason that Trump’s current lawyer, former New York mayor Rudy Giuliani, said while the President “probably” could pardon himself it “would be unthinkable” and would probably lead to attempts to remove him from office.
In fact, “the weight of opinion appears to be with Giuliani - he can, but he shouldn't”, says CBS News.
Ultimately though, “the bottom line is that there is no valid answer to the question, ‘Can Trump pardon himself?’” says Michigan State law professor Brian Kalt.
“For every person who confidently asserts that he can do it, there is another person asserting just as confidently that he can’t,” Kalt said. Unless Trump pulls the trigger, he added, experts can only speculate what the courts would do to interpret presidential pardoning power.
