Just days before President Richard Nixon resigned his office and left the White House in disgrace, a key office within the Justice Department determined that Nixon could not use his own pardon power in order to protect himself from prosecution.
“Under the fundamental rule that no one may be a judge in his own case,” acting Assistant Attorney General Mary Lawton wrote in a brief memo, “the President cannot pardon himself.”
Lawton’s memo is dated August 5, 1974. Nixon resigned four days later.
This decades-old memo is likely to take on new significance, as another president caught up in a criminal investigation reportedly is considering a self-pardon. The Washington Post reported Thursday evening that Donald Trump “has asked his advisers about his power to pardon aides, family members and even himself in connection” with special counsel Robert Mueller’s investigation into the Trump campaign’s Russian connections.
Lawton, who wrote the 1974 memo, was the head of the Justice Department’s Office of Legal Counsel, an office set up to provide authoritative legal advice to the Executive Branch. The Constitution does not permit federal courts to offer “advisory opinions” on matters that have not ripened into a live case, so the Supreme Court cannot opine on whether the president may issue a self-pardon until a president actually attempts to do so.
OLC often acts as the next-best-thing to a court within the Executive Branch, offering advisory opinions on matters that courts cannot yet rule on. Nevertheless, while OLC opinions are often treated as authoritative within the Executive Branch itself, there is no guarantee that the Supreme Court will agree with Lawton’s 1974 memo.
Indeed, as recently as 2014, the Supreme Court broke with both the Senate and the Executive Branch’s longstanding interpretation of the president’s power to make recess appointments, invalidating several controversial Obama appointments in NLRB v. Noel Canning.
If Trump does self-pardon, in other words, his fate won’t be decided by a 1974 memo. It will be decided by a Court dominated by Republicans.