WASHINGTON — Forty-three years before President Trump reportedly wondered if he could pardon himself, another embattled president wondered the same thing.
Days before President Richard M. Nixon resigned in 1974, the Justice Department put together a memo meant to address a rare question that again is swirling inside the Oval Office.
“Under the fundamental rule that no one may be a judge in his own case,” the assistant attorney general wrote, “the president cannot pardon himself.”
Three days later, Nixon stepped down from the presidency.
With a special counsel investigation underway, Trump has discussed with his lawyers what options might be available to him, including pardoning himself or members of his family, The Washington Post reported Thursday night.
One of Trump’s attorneys, John Dowd, on Friday called the Post report that Trump was looking into pardons “not true” and “nonsense.” White House press secretary Sarah Huckabee Sanders referred to those comments but would not respond specifically to whether Trump believes he can pardon himself.
“The president maintains pardon powers like any president would, but there are no announcements or planned announcements on that front whatsoever,” she said.
Under the Constitution, presidents have broad authority to pardon American citizens for almost any federal crime — including, the Supreme Court made clear in an 1866 ruling, crimes for which someone has not yet been charged.
But no president has ever attempted to pardon himself, which has made the legality especially murky.
“I’ve been looking at this for a long time,” said Brian Kalt, a law professor at Michigan State University and author of the book “Constitutional Cliffhangers.” “And the answer is: We don’t know. There’s arguments on both sides, and until it is tested in court, we just don’t know.”
Still, Kalt and many other legal observers believe it would be unlikely that a self-pardon by a president would stand in court.
“There’s this general maxim in the law that you can’t be the judge in your own case,” Kalt said. “I can see the court picking that up and saying, ‘You just don’t do this.’ If you’re a judge and you’re accused of a crime, you can’t rule in your own trial. And the president can’t pardon himself. He has to wait for another president to do it.”
The Founding Fathers, in writing the Constitution, did not envision the president using the power of pardon to pardon himself, Kalt said.
P.S. Ruckman, a political science professor at Rock Valley College in Illinois who runs a blog called Pardon Power, said he could envision Trump trying to pardon himself — but that he’s unlikely to be successful.
“I just don’t buy that a court, especially the Supreme Court, would uphold that,” he said. “I don’t think there’s a mystery here. The court’s rulings on pardons [always assume] that there’s a person granting and a person receiving, and they’re two different people.”
The court has often ruled that a pardon is not valid unless it is both properly delivered and properly received — and legal scholars conclude that means that one person cannot both deliver and receive a pardon.
Ironically, as a political question, a self-pardon could make impeachment easier for Congress to pursue.
“Even though a self-pardon might relieve Trump from the consequences of any crimes he may have committed, he might be making any potential case for impeachment easier for Congress to pursue by essentially admitting that he needed a pardon in the first place,” said Jeffrey Crouch, a professor at American University and author of the book “The Presidential Pardon Power.”
The presidential power to pardon is in Article II of the Constitution, and chief executives have exercised it with regularity. Presidents have issued more than 30,000 pardons, with controversy coming since the first high-profile pardons when George Washington pardoned the leaders of the Whiskey Rebellion.
Typically those receiving pardons are low-level criminals, but they can be just about anyone the president wants to clear from legal repercussions.
“The president’s pardon power is virtually unlimited,” Crouch said. “He cannot pardon a state crime, or a federal crime that has not yet happened, or ‘in cases of impeachment.’ But he can pardon any federal crime that has been committed, including tax evasion, drug crimes, and mutilating US currency, among many others.”
There is historical precedent for preemptive pardons, in which someone is pardoned for a crime with which he or she has not yet been charged. The most famous, perhaps, was Gerald Ford’s pardon of Nixon in 1974, a month after Nixon’s resignation. Trump could grant preemptive pardons to people involved in his campaign, or family members who could get tied up in potential criminal charges.
“If this develops, the question becomes what public rationale does Trump give for doing it,” Ruckman said. “That could be anything from nothing — stonewalling — to saying, ‘This is a big waste of time and a distraction and none of these people have done anything wrong.’”
The pardons could affect ongoing investigations. In some cases, it could force people to testify without having a right to invoke Fifth Amendment rights against self-incrimination.
“Memo to Trump,” Laurence Tribe, the Harvard law professor, wrote on Twitter. “Anyone you pardon can be compelled to testify without any grant of immunity, and that testimony could undo you.”
The pardons could also derail investigations. People could still refuse to testify — and then, if they are charged with contempt of Congress, receive a pardon for that, too.
There is little historical precedent for presidents pardoning close aides or family members, aside from Bill Clinton pardoning his half brother, Roger, for drug charges just before leaving office in January 2001.
“Pardons have halted investigations, they certainly have,” Ruckman said. “They’ve handicapped them certainly. Then Congress is up against the wall: Do we halt this or pursue it further? Or do we pursue impeachment?”
Nixon’s lawyers — his personal team, as well as those in the government — gamed out some of the issues for the embattled president.
Nixon’s personal lawyer had suggested that he could pardon himself, while the Justice Department said he could not.
Still, the legal counsel suggested a clever way for him to still be pardoned: He could temporarily give up the duties of office, handing it over to the vice president, who could then pardon him. Then, the president could either resign or resume the duties of the office.
Instead of testing any of these recommendations, Nixon resigned. President Ford less than a month later pardoned Nixon for all offenses that he “committed or may have committed or taken part in” while he was president.
“Ultimately it’s a political question,” Kalt said. “What can he get away with without Congress impeaching him for it. Everything has to be viewed in that lens. While he’s in office it’s really only Congress that he’s answerable to.”Matt Viser can be reached at firstname.lastname@example.org.