The President Probably Can Pardon Himself, But If He Does He Should Be Impeached

Based on a strict reading of the Constitution, a sitting President probably does have the power to pardon himself. That doesn't mean he should be allowed to get away with it without consequence.

Topping off a week in which the President’s attorneys were revealed to have argued to Special Counsel Robert Mueller that the President cannot obstruct justice and the Justice Department argued in a new memo that the President did not need to get Congressional authorization to attack Syria, Donald Trump’s attorney/public relations spokesperson Rudy Giuliani argued on two Sunday morning shows that the President could pardon himself while at the same time saying that he would never do that:

President Trump’s attorney Rudolph W. Giuliani publicly pressed Trump’s expansive view of executive power this weekend, arguing on two Sunday TV shows that the president probably has the sweeping constitutional authority to pardon even himself.

“He probably does,” Giuliani said, when asked on ABC’s ”This Week” if Trump has the ability to pardon himself. “He has no intention of pardoning himself, but he probably — not to say he can’t.”

Giuliani’s comments came less than 24 hours after the revelation Saturday that the president’s legal team argued in a secret January memo to special counsel Robert S. Mueller III that Trump could not have obstructed an FBI probe into Russian interference in the 2016 election because, as president, he has total control over all federal investigations.

The 20-page letter, written before Giuliani joined Trump’s legal team by two of the president’s lawyers at the time and first reported by the New York Times, was hand delivered to Mueller’s office, and also argues that the president cannot be compelled to testify.

ut while arguing that the president has the theoretical ability to pardon himself, Giuliani and other Trump allies on Sunday nonetheless rejected the reality of such a brash move — in part because of the political backlash they said could lead to Trump’s impeachment.

On NBC’s “Meet the Press,” for instance, Giuliani framed the pardon question as purely hypothetical and politically implausible. “It’s not going to happen. It’s a hypothetical point,” he told host Chuck Todd.

He went on to describe such a move as “unthinkable,” and said it would probably lead immediately to impeachment.

Former New Jersey Gov. Chris Christie, who is in regular touch with the president, was even more blunt than Giuliani, appearing on the ABC news program shortly after Trump’s attorney.

“Listen, there’s no way that’ll happen, and the reason it won’t is because then it becomes a political problem,” Christie said when asked about the notion that Trump might pardon himself. “If the president were to pardon himself, he’ll get impeached.”

The reality, however, is more nebulous. The Republican Party, which currently controls Congress, has so far failed to assert any clear red line over which Trump could walk that would prompt them to take action against their party’s leader. And Republican lawmakers have remained largely silent as Trump has repeatedly gone to war with his Justice Department and the FBI, intentionally and routinely degrading public trust in the institutions tasked with holding him accountable for misbehavior.

On Sunday, House Majority Leader Kevin McCarthy (R-Calif.), who is considered the front-runner to become the next House speaker, seemed to argue the opposite of Giuliani and Christie, saying the key focus of Mueller’s probe is, simply, whether the Trump campaign and Russia had colluded during the 2016 election.

“What I was concerned most about, like most Americans, was there any collusion?” McCarthy said. “There was no collusion.”

He concluded: “Let them walk through their investigation. But I think, if there is no collusion, it’s time to wind this down.”

The president and his allies have long privately played out the strategy that burst into public view this weekend. As early as last summer, for instance, as Mueller’s probe dragged on, the president began asking advisers about his power to pardon aides, family members and even himself. His lawyers at the time discussed his pardoning powers as well.

The question of whether a president can self-pardon has long been a “parlor game” among constitutional scholars, Turley said. There’s no precedent for it and thus no case law. Turley said he believes a president can pardon himself —  but added that would not protect a president from impeachment.

“A president cannot pardon out of an impeachment,” Turley said. Congress, he said, “can use his pardon as an abuse of his office.”

Ethan Leib, a professor at Fordham Law School, said he believes a president can’t self-pardon because that violates the oath of office — in which the president swears to “faithfully execute” his duties — and the stipulation in Article II of the Constitution that the president “shall take care that the laws be faithfully executed.”

“The Constitution is clearly prohibiting the president from engaging in self-dealing,” Leib said.

Here’s the video:

In a tweet this morning, the President agreed with his attorney:

As a matter of law, it strikes me that Turley has the better argument here, and that, for better or worse, a sitting President would have the power to pardon himself just as he the right to pardon anyone else who could face legal jeopardy before a Federal Court. The entire pardon power is set forth in Article II, Section II, Clause 2 of the Constitution which states; “The President shall…..have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” There are, as the reader will note, no limitations placed on this power other than the provision that the President could not pardon himself or any other Federal official such as a Presidential appointee subject to Senate confirmation or a Federal Judge. This makes the pardon power one of the few powers granted by Article II that is essentially unlimited and, most likely beyond review. Historically, of course, the practice with respect to pardons and grants of clemency has been that applications for such relief are submitted to, and evaluated by, the Office of the Pardon Attorney, an office created in 1865 to provide logistical support to the President in carrying out this duty. There is no requirement that the President utilize this method when granting a pardon or clemency, though, and President Trump has notably skipped that part of the process in his decision to grant pardons to Joe Arpaio, Scooter Libby, and, most recently, Dinesh D’Souza.

Based on the language of the Constitution, it seems clear that the Presidential pardon power is limited only to the extent that he could not pardon himself or anyone else out of a potential impeachment proceeding, a limitation that the drafters of the Constitution likely anticipated would be sufficient to restrain a President from abusing his power so egregiously. Beyond that, there are no other limits on the pardon power, making it fairly easy to see how that power could be abused. In the specific case of President Trump, for example, there is nothing that would prevent him from pardoning persons such as Paul Manafort, Rick Gates, Michael Flynn, George Papadopoulos, or Trump attorney Michael Cohen in order to make them essentially immune from Federal prosecution and thus less likely to cooperate with Robert Mueller’s Russia investigation or any other Federal investigation. It also means that the President could pardon his own family members such as Donald Trump Jr. and Jared Kushner, although that point was made clear when President Bill Clinton pardoned his brother Roger on the President’s final day in office in 2001. And, for better or worse, it means that a President could pardon himself.

In response to the argument advanced by Giuliani and Trump, and by Professor Turley who is by no means a fan of the sitting President, CNBC cites other legal experts who dispute the idea that the President has the pardon himself. None of these arguments point to anything specific in the Constitution that bar the President from doing this, but the general argument that these experts make is that that the argument that the President can “self-pardon” violates the spirit and intent of the Constitution. The problem with an argument like that, of course, is that one can argue that if the drafters of Article II wanted to make sure that a President cannot pardon himself, they could have easily made that clear in the text of the amendment. The fact that they didn’t isn’t necessarily a reflection of the fact that they believed that such a self-pardon would be a good idea, but that they simply could not imagine such a scenario arising under the Constitution.

Another argument against the idea that the President can pardon himself was made in a memorandum prepared by the Office of Legal Counsel in the Justice Department forty-four years ago:

In a memo dated August 5, 1974 and authored by Acting Assistant Attorney General, Mary C. Lawton, the DOJ notes, “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”

The memo continues:

Pursuant to Article II, Section 2 of the Constitution, the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” is vested in the President. This raises the question whether the President can pardon himself. Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.

Lawton’s analysis isn’t particularly lengthy; the entire memo tops out at just shy of three full pages. In the memo, Lawton raises-then immediately dismisses-the possibility of applying the necessity doctrine to a situation that might result in an attempt at a presidential self-pardon.

Under U.S. law, the necessity doctrine arises when all of the potential judges in a matter would seemingly be disqualified from ruling on a case before them because all of those (otherwise appropriate) judges have some sort of vested interest in the case’s outcome. Necessity, then, would seem to dictate that justice can only be served if the judges actually do decide the case-so the disqualification rule is set aside or relaxed to a certain extent. (This is the holding from Evans v. Gore.)

Lawton determines that the necessity doctrine is inapplicable to the situation of a sitting president facing criminal charges. She concludes, “It is, however, extremely questionable whether that doctrine is pertinent where the deciding official himself would be directly and exclusively affected by his official act.” To support her conclusion, Lawton cites Tumey v. Ohio, a case where it was determined that a defendant being tried by a judge with a “direct, personal, substantial,” interest in convicting said defendant amounts to a violation of due process of law.

The Constitutional firmness of a self-pardon, per the DOJ, is a bit squishy.

As noted, Lawton’s argument, which was published just days before President Nixon would resign, is not particularly lengthy or detailed. Additionally, it doesn’t really rely on anything in the text of the Constitution but instead relies on the same sort of ‘spirit of the Constitution’ arguments that the experts cited by CNBC discussed above and the idea that “no person can be a Judge in their own case.” This axiom, as true as it sounds, appears nowhere in the Constitution, though, so it doesn’t seem to me to be very persuasive. Lawton’s memo also touches on two related issues about manners in which a President could potentially get around the supposed bar on self-pardon. The first involves the President temporarily ceding power to the Vice-President under Section III of the Twenty-Fifth Amendment and the Vice-President, serving as Acting President, issues a pardon to the President and then the President either takes the steps to regain power under the Amendment or resigns and escapes potential criminal prosecution. The other involves a so-called “Legislative Pardon” of the President. I won’t address either of these arguments at length, but they both strike me as rather weak.

As for the argument that Professor Leib makes against the self-pardon in the article above, while interesting that argument doesn’t appear to withstand scrutiny. The fact that the Presidential Oath Of Office makes reference to the faithful execution of the laws and the text of Article II. Section III which states that [The President] shall take Care that the Laws be faithfully executed” does not strike me as being a limitation of any kind on the pardon power specifically. Furthermore, as the provision that prevents the President from pardoning his way, or the way of any other Federal official, out of impeachment seems to make it clear that the drafters of the Constitution were fully capable of placing limits on the pardon power but did not limit it in such a way as to make it clear that a President cannot pardon himself. Arguably, of course, the drafters did not foresee the possibility that we’d ever have a President who would even consider such a thing, Whatever the reason, though, the fact that there is no such limitation suggests, in my estimation, that there is no such limitation on the Presidential pardon power.

The fact that a President can do something like this with little to no limitation to his power, though, doesn’t mean that this is the end of the matter. The only thing that a Presidential self-pardon would mean is that he could not be charged with a Federal crime for any offense committed prior to the time the pardon was issued. This doesn’t mean that this hypothetical President shouldn’t face consequences for such an act. Former U.S, Attorney for the Southern District of New York Preet Bharara, for example, said that a Presidential self-pardon would effectively be a self-executing impeachment and former New Jersey Governor Chris Christie, who had been one of the President’s most loyal endorsers during the campaign, said such an act would be a reason for impeachment.

I most certainly agree with both Bharara and Christie that a President who pardoned himself should be impeached. Such an act would essentially be an assertion by that President that he believes himself to be above the law, and other than the Twenty-Fifth Amendment, the only other way to remove such a President would be via impeachment by the House and removal by the Senate. The only question would be whether such an act would be a sufficient final act on a President’s part that even his own party would say “enough” and demand that he either resign or face impeachment. In a sane world, of course, this would be without question. In today’s world, we, unfortunately, have to ask ourselves whether a Republican Congress would have the political will to do this. As I have often done when presented with questions like this in the Trump Era, I’ll leave that for each reader to decide for themselves.

Here’s the 1974 Department of Justice memorandum referenced above:

DOJ Memo on Presidential Self-Padrons by Doug Mataconis on Scribd

FILED UNDER: Donald Trump, Law and the Courts, Politicians, Presidency, U.S. Constitution, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. Joe says:

    I think its curious that Trump has no faith that Pence would pardon him.

  2. KM says:

    Based on the language of the Constitution, it seems clear that the Presidential pardon power is limited only to the extent that he could not pardon himself or anyone else out of a potential impeachment proceeding, a limitation that the drafters of the Constitution likely anticipated would be sufficient to restrain a President from abusing his power so egregiously.

    I would go further in that the Founders would have assumed it was sufficient that the fundamental legal principle that the accused cannot judge and exonerate themselves was clear and that explicit language preventing a President self-pardon was not needed. It’s like saying “do not touch the stove because it’s hot” and assuming you don’t need to add “you will be injured if you do so”. The Founders lived in a world where honor and public reputation was a driving force – they just assumed Congress wouldn’t stand for having a criminal for President since it would reflect negatively on them and the public’s opinion of the government. The idea that they had to spell out that you don’t get to give yourself a pass would have been seen as kinda of pointless because it’s frigging obvious how unacceptable the concept is to law and order.

    I am curious though how people are trying to square the concept of a self-pardon for a President with the notion that a citizen cannot judge themselves. They are two completely contradictory notions and require violating the core value of the other to execute. I’d rather had the limitation of there being one person the President can’t pardon then have a country where we’ve effectively decided the leader is a ruler with unlimited power to commit whatever crime they wish without due punishment. The Founders fought a war to get rid of such a despot so why would they recreate the wheel?

  3. CSK says:

    Perhaps he thinks Pence wouldn’t be quick enough doing it.

  4. Bob@Youngstown says:

    Proposed plot for a TV drama:
    1) POTUS is becoming disillusioned with the presidency and has decided to resign.
    2) POTUS invites the AG to the Oval for a one-on-one discussion
    3) POTUS slashes the AG’s throat, and watches as the AG bleeds out.
    4) POTUS turns to the Resolute desk and signs a pardon for himself effective immediately (including any interactions with the AG)
    5) POTUS then signs a resignation letter, thereby avoiding impeachment.
    6) the now former POTUS returns to his home on 5th Ave.

  5. Pylon says:

    Pardoning oneself isn’t inconsistent with the notion that one shouldn’t judge themselves, since a pardon technically has little to do with guilt or innocence. I think it shouldn’t be allowed, but I haven’t seen any support for that as it stands now. I also think pardons should be specific and only applicable to existing convictions. However, obviously Agnew did that for Nixon (though I don’t think it was ever challenged in court). In fact, theoretically, could a president pardon a person (including himself) against future offences?

  6. MarkedMan says:

    From the start of this national nightmare, I’ve pretty consistently said that the situation is untenable but I don’t see a way out. In the course of the past two years I’ve thrown out one or two possibilities on how it could resolve itself. The operative word here is “could” and by that I mean it is conceivable, not likely. In that spirit – how’s this: Trump pardons himself and all his family and then resigns. He does this believing that pardoning himself removes him from all legal jeopardy. Of course, this is not true, but Trump is both stupid and capable of immense self deception.

  7. Pylon says:


    If Trump’s finances are threatened he would get out in a heartbeat.

  8. Joe says:


    Murdering the AG would also be a state law (DC-law in this case) crime. Recall that the president can pardon only federal crimes.

    Can you imagine the howl if any prior president had taken these positions, let alone if Obama had?

  9. MarkedMan says:


    However, obviously Agnew did that for Nixon

    Actually, by the time Nixon resigned Agnew had already pleaded no contest to charges of bribery and left office. So it was Gerald Ford that pardoned Nixon.

  10. reid says:

    I was pretty young at the time of the Nixon mess, so I wasn’t too aware of the events unfolding. We all look back now and think of it as a dark period in our history and associate Nixon with corruption, crime, etc. I can imagine that in 40 years Nixon will be viewed as a piker compared to Trump. We are going through some very interesting times.

  11. gVOR08 says:


    they (the Founders) just assumed Congress wouldn’t stand for having a criminal for President since it would reflect negatively on them and the public’s opinion of the government.

    That was before we had a party that wins by running against the government (that and racism), and somehow get away with it even though they are the government. and are deliberately sabotaging the government.

    Whatever happens to Trump, the Rs will run on the argument it was all Trump, the rest of the Rs were all around the corner buying smokes the whole time.

  12. SKI says:

    Doug, The problem with your conclusion is that it literally means that the President can murder, or have others murder, anyone he wants in DC or on federal property with no legal consequences.

    Congress says they will impeach but enough get arrested/disappeared/killed that that doesn’t/can’t happen. Same for SCOTUS.

    All perfectly legal in Doug’s view of the pardon power. A president being able to pardon themselves or commit obstruction of justice by pardoning associates puts that president above the law.

    What is that old quote from Oliver Twist?

  13. Pylon says:


    Yeah, my bad. I forgot it was Ford, not Agnew.

    IMO this whole mess is caused by a technical bust in the Constitution that the drafters didn’t comprehend, and I’m not sure of the fix, short of an amendment. The whole notion is antithetical to the basis for the revolution and the founding of the nation.

  14. Kathy says:

    I’m convinced his base won’t ever find fault with anything Cheeto Benito does.

    As for the rest of the GOP, I still think nothing short of a big electoral loss will turn them around. After all, they’re only sucking up to Trump in order to keep the favor of his base. If that doesn’t keep them in power, then what effing good is it?

  15. Mister Bluster says:



    Richard Nixon became the thirty-seventh President of the United States on January 20, 1969 and was reelected in 1972 for a second term by the electors of forty-nine of the fifty states. His term in office continued until his resignation on August 9, 1974.

    Pursuant to resolutions of the House of Representatives, its Committee on the Judiciary conducted an inquiry and investigation on the impeachment of the President extending over more than eight months. The hearings of the Committee and its deliberations, which received wide national publicity over television, radio, and in printed media, resulted in votes adverse to Richard Nixon on recommended Articles of Impeachment.

    As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution.

    It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.

    NOW, THEREFORE, I, GERALD R. FORD, PRESIDENT OF THE UNITED STATES, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon 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 January 20, 1969 through August 9, 1974.

    IN WITNESS WHEREOF, I have hereunto set my hand this eighth day of September, in the year of our Lord nineteen hundred and seventy-four, and of the Independence of the United States of America the one hundred and ninety-ninth.

    Gerald Ford Signature.svg

  16. Pylon says:

    If Trump is given the choice between not pardoning himself (and his kids) and impeachment he’d take the latter every time. All he loses is the couple years of grifting he has left.

    Frankly, I might take that tradeoff.

  17. Mister Bluster says:

    @reid:..We all look back now and think of it as a dark period in our history…

    Can we look back 50 years?
    Today is the anniversary of the assassination of Robert Kennedy.
    He was shot just after midnight Pacific Time fifty years ago today. He had just won the California Democratic Primary to be their candidate for President USA.
    I was watching on TV at 2 AM in the midwest when the news of the shooting was reported. Right after I had seen him walk out of the ballroom at The Ambassador Hotel in Los Angeles.
    I was stunned!
    Early the next morning I was riding in a coach seat on the Illinois Central RR to Sleepytown for the first time with friends to enroll in college and look for a place to live.
    The conductor had a small transistor radio he was listening to. After we had been on the rails for he few hours shortly before the sun came up he told us that the Senator had died.

    JFK November 1963.
    Malcolm X February 1965.
    The Reverend Dr. Martin Luther King Jr. APRIL 1968 four months earlier!
    Now This!

  18. gVOR08 says:

    @Mister Bluster:

    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 January 20, 1969 through August 9, 1974.

    I heard this on my car radio on my way to pick up my then girlfriend, now wife, to play tennis. I dion’t recall we made it to tennis. She had also heard it and we were both too angry to do anything. Still pisses me off every time I’m reminded of it. No man is above the law. Unless it’s convenient for the G’damn Republicans.

  19. Mister Bluster says:

    Pardon me if this is off topic.
    George Papadopoulos’ Wife Asks Trump To Pardon Her Husband
    Excuse me while I whip this out.

  20. Kylopod says:


    As for the rest of the GOP, I still think nothing short of a big electoral loss will turn them around.

    I’m not sure that even a big electoral loss will help. If they lose many seats in Congress this November, the Republicans most affected will be those representing blue or purple districts, meaning that the Republicans who stay in power will disproportionately be the Trumpiest ones. (This is actually Politics 101: when a party has a bad midterm it’s the more moderate members of the party who are the most vulnerable, because they’re the ones likeliest to represent competitive districts. It’s why the 2010 midterms essentially wiped out the Blue Dog Caucus, contributing to Democratic Party’s leftward shift in subsequent years.) Of course if they do better than expected this November, perhaps holding onto the House and gaining Senate seats, it’ll also embolden the party to become even Trumpier. In other words, it’s a Catch-22.

    The only way I see out of this is simply winning it all in 2020. If we don’t, the country is truly f*cked.

  21. Kathy says:


    I would settle for driving Trump out in 2020 if that’s the best we can do, but I’d like to see him gone sooner if at all possible. At this point I don’t care whether he resigns, is impeached and removed, dies of natural causes, dies of unnatural causes, has a terrible accident, gets a stroke, whatever. The next best thing to that would be losing the unflinching support of the GOP

    If he wins reelection in 2020, though, watch out. I don’t want to make predictions, but I can see some possibilities that are deeply disturbing. For instance, if Europe can’t trust America to be an ally, would Germany, and maybe a few others, decide they need a nuclear deterrent of their own? Would Japan and/or South Korea?

    Remember these countries have a developed industrial base, and engineers and scientists to spare. They cannot be as easily pressured by sanctions as Iran or North Korea (which were not easily pressured, BTW). They could all have tactical fission bombs in a short time, and fusion ones in a few years at most, likely with long range missiles to deliver them.

    I don’t think this is likely. But then two years ago I wouldn’t have thought a trade war with Europe, Canada and Mexico were likely, either, nor that the transatlantic alliance would be straining. It’s certainly possible.

  22. Guarneri says:

    Yes, if he did that he should be impeached.

    You took the bait.

  23. Bob@Youngstown says:

    @Joe: But wouldn’t the lawyers have a fun time deciding if the murder of a federal officer was in federal jurisdiction.

  24. Raoul says:

    Obviously until the Supreme Court rules on the matter we will not have a final answer so everything stated on the matter is just opinion. That said, Supreme Court precedents (Nixon, Clinton) have read the executive authority within an overall constitutional context and thus is the issue is not simply reading one sentence. The impeachment provisions calls for “high crimes” which technically implies a conviction that cannot pardoned in an absolute manner; that is if the power to pardon is absolute as it is commonly understood then by constitutional application one cannot pardon oneself to remove the “high crime” for the purposes of nulling the impeachment.
    Another matter is the timing; though the issue has not been fully tested I would posit that a pardon can only happen after conviction as legally there is nothing to pardon until an official decree is issued. One more aspect I want to address is the definitional notion of pardon, again there is no firm ruling but I would think a court would at least consider against an over expansive definition of the term. The most common meaning of the word is that of a transitive verb, that is an action from one to another- it would require constitutional stretching to read it another way and like I stated, a position courts have typically not taken on the issue at hand.

  25. Mister Bluster says:

    Another matter is the timing; though the issue has not been fully tested I would posit that a pardon can only happen after conviction as legally there is nothing to pardon until an official decree is issued.

    Please see comment GRANTING PARDON TO RICHARD NIXON Tuesday June 5, 2018, 13:58 above. President Ford pardoned Richard Nixon before any trial and conviction.