Donald Trump’s claim that he has the “absolute right” to pardon himself from any indictment resulting from the investigation into election meddling and obstruction of justice has provoked fierce debate in the US and raised the spectre of a constitutional crisis.
But is he right?
Talk of a potential pardon comes after The New York Times published a letter from two Trump lawyers to special investigator Robert Mueller in which they argued that the president could not possibly have committed obstruction in the Russia investigation because the Constitution empowers him to “terminate the inquiry, or even exercise his power to pardon if he so desired”.
Trump’s lawyer, former mayor of New York Rudy Guiliani, later claimed the president “probably” had the power to pardon himself, but that doing so would “lead to probably an immediate impeachment”.
Case for the prosecution
The question of whether he should is different from whether he can. Trump has insisted that “numerous legal scholars” have concluded he has the absolute right to do so, “a claim that vastly overstates the legal thinking on the issue” says The New York Times.
In fact, the paper says “many constitutional experts dispute Mr. Trump’s position on his pardon power, an issue for which there has been no definitive ruling”.
Democrats, including Senator Ed Markey, cited an opinion issued by the Justice Department office of legal counsel in 1974, four days before the resignation of Richard Nixon, which reads: “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”
George Mason University public policy professor James Pfiffner, who has written about the possibility of a president pardoning himself for the Heritage Foundation, told The New York Post it is “doubtful” that Trump could do so.
He pointed to two principles outlined in the Federalist Papers, considered to be companion materials to the US Constitution. First, “no one is above the rule of law,” and secondly, “no man should be the judge in a case that affects him personally.”
Case for the defence
On the question of whether Trump has self-pardoning power, “the weight of opinion appears to be with Giuliani – he can, but he shouldn’t”, says CBS News.
Berkley law professor and former George W. Bush adviser John Yoo says the US constitution gives the president virtually unlimited pardon power. Article II says he can “grant reprieves and pardons for offences against the United States, except in cases of impeachment.”
This interpretaion is supported by Samuel Morison, a lawyer who formerly worked in the Justice Department’s Office of the Pardon Attorney, who told the Post that Trump was “probably right” when claiming he had the right to self-pardon.
Former Department of Justice official, Andrew McCarthy, goes even further, saying Trump does not even need to wait to be charged with a crime before issuing a pardon. The president can pre-emptively pardon anyone, including himself, McCarthy argues.
So what’s the verdict?
“The bottom line is that there is no valid answer to the question, ‘Can Trump pardon himself?’” says Michigan State law professor Brian Kalt.
“For every person who confidently asserts that he can do it, there is another person asserting just as confidently that he can’t,” Kalt said. Unless Trump pulls the trigger, he added, experts can only speculate what the courts would do to interpret presidential pardoning power.