Since before he was even elected president (do your fingers tremble when you type that? mine do), people started asking if Donald Trump could pardon himself. Now that he’s on the verge of (be still, my heart) losing his re-election bid, his time to do so is running out. So, we may find the theoretical question of whether or not the president can pardon himself quickly turning into a practical one. Some people think that’s highly likely.
Can the president pardon himself?
The majority view among legal scholars is the he cannot pardon himself. But their arguments are typically convoluted and inferential, mostly adding up to one form or another of saying he can’t because, “That would make us flip our wigs!” A good example is Philip Bobbitt’s piece in the June, 2018, Lawfare. Bobbitt says the president’s duty under the constitution to “take Care that the Laws be faithfully executed” precludes a self-pardon. But that runs afoul of the idea that the president can ever pardon a person convicted as the result of the due process of law. Pardoning a person convicted of breaking the law is hardly taking care that the law be faithfully executed. It is defying the very lawfulness of that conviction. Bobbitt (who is pretty smart) gets this and jumps through numerous hoops to explain why the pardoning of others is a form of faithful execution, while pardoning one’s self is not, but stumbles at the last hoop. (That’s the one you have to jump through in the case of a president who truly believes has done no wrong, but pardons himself to avoid unfair prosecution and does that sound like anyone we know?)
Now, Bobbitt could be right, but he could be wrong and the final decision would be made by a Supreme Court increasingly devoted to pure textualism. I doubt the framers intended the president to be able to pardon himself, but we can’t ask them and, even if we could, they are (as we are) stuck with what’s on the parchment. And what’s on the parchment says the president can pardon whomever he wants. It really wouldn’t have taken much ink to add, “except himself,” and I like to think the framers were at least as smart as Bobbitt. My prediction is that the current court would uphold a presidential self-pardon.
But it may not have to, and here’s why: if Trump loses in November, he is still president for over two more months. All he has to do is pardon himself and also his vice president, Mike Pence, then resign from office. Pence gets sworn in and also pardons Trump (and maybe himself too, just for good measure). Would Pence agree to this? Well, if Trump loses, Pence loses too. His hopes of being president himself in four more years would be pretty much gone. But, for a couple of months, if Trump resigned, Michael Richard Pence would actually be the 46th president of the United States. (And he could still run again and serve two full terms if he won, as case law says you round up or down to the nearest whole term when counting the terms of partial-term presidents.)
So there you have it. Stop wondering if Trump can pardon himself. In my opinion, he can (and he will), but he’ll have a ready belt to add to his suspenders by letting Mike Pence play president for a few weeks at the end of this year.