President Trump started off his Monday morning in style, tweeting that he has the “absolute right” to pardon himself for any crime.
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? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
You know he is serious because the word pardon is in all caps. But is he right?
On August 5, 1974, Mary Lawton, the Acting Assistant Attorney General, examined the question of whether the president can pardon himself. The president at the time was Richard Nixon.
“Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” Lawton wrote.
Lawton’s analysis was analyzed last year by a trio of legal scholars for the Washington Post, including the White House Counsels for Presidents Obama and Bush. As they wrote:
The Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law.
The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.
Though the pardon power dates back hundreds of years, the scholars writing in the Post were unable to find a single case of a self-pardon recognized as legitimate. “Even the pope does not pardon himself. On March 28, 2014, in St. Peter’s Basilica, Pope Francis publicly kneeled before a priest and confessed his sins for about three minutes,” they wrote.
There are some legal scholars who do believe the the president can pardon himself. Writing Monday in USA Today, law professor Jonathon Turley makes that argument. But even Turley calls the idea of a self-pardon “reprehensible and ignoble.” Rudy Giuliani, now acting as Trump’s lawyer, recently said that Trump “probably” had the power to pardon himself — but added that such an act would likely lead to his “immediate impeachment.”
The president cannot pardon himself. Even if he tries it and the courts allow it, which is unlikely, he would almost certainly be removed from office immediately.
Four days after Lawton issued her memorandum, Nixon resigned.