On Monday morning, President Donald Trump tweeted that he “absolutely” had the power to pardon himself in the event that he is charged with obstructing justice in the investigation into Russia’s efforts to influence the 2016 presidential election (or with anything else).
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
And his attorney, former New York City Mayor Rudy Giuliani, agreed — sort of. He said Trump “probably” could but the chances of it actually happening are “unthinkable.”
During an appearance on ABC News’s This Week, Giuliani hedged hard on two questions related to a potential self-pardon: whether Trump could pardon himself, and whether Trump would pardon himself. After saying that Trump “probably” has the power to self-pardon, Giuliani said of such an event, “It’s not going to happen. It’s a hypothetical point,” and added that doing so would be “unthinkable.”
JUST IN: Does Pres. Trump have the power to pardon himself?— ABC News Politics (@ABCPolitics) June 3, 2018
"He's not, but he probably does," Rudy Giuliani tells @GStephanopoulos. "He has no intention of pardoning himself, but that doesn't say he can't." https://t.co/YQ29ClaVMa pic.twitter.com/jDXl1jOnuV
It’s another example of both Trumpworld and Trump being out of step on a major point of policymaking and the president’s thinking. Who knows what’s really going on.
And legal scholars are far from united on whether a president could self-pardon. Scholars like Jonathan Turley, a constitutional law professor at George Washington University, argue that Trump could pardon himself. (Though, in his words, such an act would be “ignoble and self-defeating.”) But others strongly disagree.
What the Constitution (might) say on self-pardons
As my colleague Sean Illing detailed in April, one potential roadblock to a presidential self-pardon could be in the Constitution’s “take care clause” — the president “shall take care that the Laws be faithfully executed” — which some scholars take to mean that the president could not self-pardon, as it’s inherently in his own self-interest.
Fordham law professor Jed Shugerman says, “Clearly, a self-pardon is a breach of fiduciary duty because it’s manifestly self-interested. But if a president managed to do this, the following administration could try to prosecute the president, which would force a court to examine that president’s self-pardon and decide whether or not it was invalid on the grounds that it violated his fiduciary duty to serve the best interests of the people over himself.”
It’s worth noting that the last time presidential self-pardons came into question, during the Watergate scandal, the Department of Justice ruled that presidents could not, in fact, self-pardon, as “no one may be a judge in his own case.”
"Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself."— Steven Dennis (@StevenTDennis) June 4, 2018
Aug. 5, 1974 DOJ opinion, 4 days before Richard Nixon resigned.
It's right there on the DOJ website: https://t.co/G9gIbHNsDl pic.twitter.com/67H9pFzYXJ
As much as scholars are divided on what Trump could do, the president’s world is divided on just what he would do.