Recently, President Donald J. Trump tweeted that he has the “absolute right” to pardon himself, adding that he wouldn’t do so, however, because he’s “done nothing wrong.” Trump was responding to special counsel Robert Mueller’s investigation into whether his campaign colluded with Russian agents during the 2016 election and potential obstruction of justice. The president’s tweet was in line with a similar statement by his legal advisor, Rudolph Giuliani, who said that Trump “probably does” have the power to pardon himself, but won’t.
Northeastern University’s constitutional law professor Martha Davis, however, argues that “any attempt at a self-pardon by the president would have to meet the standard of the ‘take care’ clause of the Constitution, which requires that the president ‘take care that the laws be faithfully executed.’ Davis claims, “It would be difficult, if not impossible, for the president to establish that a self-pardon met this standard if the criminal investigation and indictment were lawfully conducted, as the current investigation indisputably has been,”. He adds, “There might be hypothetical situations where a presidential self-pardon would be permissible under the take care clause, but that’s certainly not the situation we have here based on the known facts. At some point, one has to wonder why this president is so reluctant to accept the rule of law.”
The question over whether a sitting president has the Constitutional right to pardon himself isn’t new. It came up last summer when Trump asked his advisers about his power to “pardon aides, family members, and even himself” in connection with Mueller’s investigation. Davis says that the Constitution’s language is silent on whether a president can pardon himself. Some legal scholars argue that the absence of a clear prohibition indicates that the power is so broad that a president could indeed try to take such action.
Whether that move would stand up to Supreme Court examination is an entirely different matter.
Harminder Singh