Can a President Pardon Himself?

What the Constitution and Law Say About Pardons and Impeachment

Republican presidential candidate Donald Trump
Republican presidential candidate Donald Trump speaks to an audience during the 2016 primary campaign. Scott Olson/Getty Images News

The president of the United States is granted power under the Constitution to pardon those who have committed certain crimes. But can a president pardon himself?

The topic is more than just academic.

The question of whether a president can pardon himself arose during the 2016 presidential campaign, when critics of Democratic nominee Hillary Clinton suggested she could face criminal prosecution or impeachment over her use of a private email server as secretary of the Department of State if she were to be elected.

The question also surfaced during the tumultuous presidency of Donald Trump, particularly after it was reported that the erratic businessman and former reality-television star and his lawyers were "discussing the president’s authority to grant pardons" and that Trump was asking his advisers "about his power to pardon aides, family members and even himself."

Trump further stoked speculation that he was considering his power to pardon himself amid the ongoing probes over his campaign's connections with Russia when he tweeted "all agree the U.S. President has the complete power to pardon.”

Whether a president has the power to pardon himself, though, is unclear and the subject of much debate among constitutional scholars. The first thing you should know is this: No president in the history of the United States has ever pardoned himself.

Here are the arguments on both sides of the issue. First, though, is a look at what the Constitution does and doesn't say the president's authority to use pardons.

The Power to Pardon in the Constitution

Presidents are granted the authority to issue pardons in Article II, Section 2, Clause 1 of the U.S. Constitution. 

The clause reads:

"The President ... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

Take note of two key phrases in that clause. The first key phrase limits the use of pardons "for offences against the United States." The second key phrase states that a president can't issue a pardon "in cases of impeachment."

Those two caveats in the Constitution place some limitations on the president's power to pardon. The bottom line is that if a president commits a "high crime or misdemeanor" and is impeached, he can't pardon himself. He also cannot pardon himself in private civil and state criminal cases. His authority extends only to federal charges.

Also take note of the word "grant." Typically, the word means one person gives something to another. Under that meaning, a president can give someone else a pardon, but not himself.

Nonetheless, there are scholars who believe otherwise.

Yes, the President Can Pardon Himself

Some scholars argue that the president can pardon himself in some circumstances because - and this is a key point - the Constitution does not explicitly prohibit it. That is considered by some to be the strongest argument that a president has the authority to pardon himself.

In 1974, as President Richard M. Nixon was facing certain impeachment, he explored the idea of issuing a pardon to himself and then resigning.

Nixon's lawyers prepared a memo stating such a move would be legal. The president decided against a pardon, which would have been politically disastrous, but resigned anyway.

He was later pardoned by President Gerald Ford. "Although I respected the tenet that no man should be above the law, public policy demanded that I put Nixon-and Watergate-behind us as quickly as possible," Ford said.

In addition, the U.S Supreme Court has ruled that a president can issue pardon even before charges have been file. The high court stated that pardon power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.”

No, the President Can't Pardon Himself

Most scholars argue, however, that presidents cannot pardon themselves.

More to the point, even if they were, such a move would be incredibly risky and likely to ignite a constitutional crisis in the United States.

Jonathan Turley, a professor of public interest law at George Washington University, wrote in The Washington Post:

"Such an act would make the White House look like the Bada Bing Club. After a self-pardon, Trump could wipe out the Islamic State, trigger an economic golden age and solve global warming with a carbon-eating border wall — and no one would notice. He would simply go down in history as the man who not only pardoned his family members but himself.​"

Michigan State University law professor Brian C. Kalt, writing in his 1997 paper "Pardon Me: The Constitutional Case Against Presidential Self-Pardons," stated that a presidential self-pardon would not hold up in court.

"An attempted self-pardon would likely undermine the public's confidence in the presidency and the Constitution. A potential meltdown of such magnitude would be no time to begin legalistic discussion; the political facts of the moment would distort our considered legal judgment. Looking at the question from a cooler vantage point, the intent of the Framers, the words and themes of the Constitution they created, and the wisdom of the judges that have interpreted it all point to the same conclusion: Presidents cannot pardon themselves."

The courts would likely follow the principle stated by James Madison in the Federalist Papers. "No man," Madison wrote, "is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity."