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With allegations swirling around President Donald J. Trump from inciting a riot at the Capitol to New York state charges, the possibility of a self-pardon has reportedly been discussed with former and current administration advisors. While U.S. presidents have nearly unlimited powers to issue pardons to individuals involved in federal criminal investigations, it is still an unanswered question whether a president can pardon himself.

The U.S. Constitution, Article II, Section 2, Clause 1 reads: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment (emphasis added).”

In the final days of the Trump administration, the question of whether a president has the power under the Constitution to pardon himself has become hotly debated. The opinions of constitutional law experts vary, and the U.S. Supreme Court has not weighed in on the issue.

CNN reported on Jan. 11 that recently departed Attorney General William Barr cited a 1974 Justice Department memo to say internally that the president could not pardon himself. The cable news network also said White House counsel Pat Cipollone has not asked the Justice Department Office of Legal Counsel, which analyzes these legal issues, for a re-examination of the issue.

Most legal experts agree that a president cannot pardon either himself or another for a state offense, as the Constitution notes “offenses against the United States.” In other words, state law enforcement authorities could review any criminal allegations, without presidential intervention, to determine if they rise to the level of a state offense as reportedly New York is doing with President Trump now.

The legal record is also clear that a president can pardon for a presumptive crime, like what then-President Gerald Ford did with his predecessor Richard Nixon on Sept. 8, 1974. In the aftermath of Watergate, Ford gave Nixon, who resigned from the presidency a month earlier, an “absolute pardon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from Jan. 20, 1969 through Aug. 9, 1974.”

The U.S. Supreme Court affirmed the presidential power to pardon in Ex parte Garland, an 1866 case involving a former Confederate senator who had been pardoned by President Andrew Johnson. In that case, the high court made clear that the 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.”

Posted 8/17/2017 / updated 1/13/2021

American Bar Association

Ethics and Environmental Practice