The investigation into potentially classified documents at Donald Trump’s Mar-a-Lago home took a new turn last week when a “Special Master” review, examining material taken from the Florida compound, was dismissed.
The move means federal investigators can start their work again, without disruption—leading some to believe that Trump may now pardon himself under privileges available while he was president.
One tweet by Democratic activist Andrew Wortman, published on December 14 and with more than 11,000 engagements, stated: “Going on record now and saying there is at least a 99 percent chance that Trump issued himself a pardon while he was still in office that he plans to pull out of his pocket and try to use as an actual get-out-of-jail-free card the moment he’s finally indicted/arrested (It will not work).”
Meanwhile, a legal professional added that in “2023, we may get the answer to two constitutional questions: 1. Are “pocket pardons” valid? 2. Can a president pardon himself?” wrote Ron Filipkowski, a former federal prosecutor.
This narrative appears to have gained traction in light of another investigation, in which the House Select Committee investigating the January 6 Capitol riot announced criminal referrals against former President Donald Trump to the Justice Department at its final meeting Monday afternoon.
Trump has flirted with the idea of a self-pardon before, and while he didn’t declare himself among the dozens for whom he granted clemency while president, the possibility of a secret “pocket” pardon would mark a significant moment, both in the investigations of Trump, and the history of U.S. politics.
So, what are the practicalities of such a move? Does the privilege of presidential pardons extend to presidents themselves? Can pardons be pre-emptive or secret? And what would happen if Trump decided to do so—and succeeded?
To answer these questions, Newsweek spoke to several experts in American politics and dug into the history that might guide such an unprecedented turn of events.
Is It Wrong for Trump to Pardon Himself?
Under the Constitution, only federal convictions can be pardoned by the president. As the investigation is being led by the Department of Justice under U.S. Codes (not state law), any ensuing indictment would be federal.
Dr. Richard Johnson, a senior lecturer in U.S. politics and policy at Queen Mary University of London, told Newsweek that if there were a limit on the self-pardon “it probably would have been included in the constitutional text alongside these other limitations.”
“We may think it wrong for a president to be able to pardon himself, but we might also think it wrong that the president can pardon his brother (like Bill Clinton) or campaign supporters (like Donald Trump),” Johnson said.
“Yet, simply because they are inappropriate or bad uses of the pardon power does not make them constitutionally impossible.”
Have Any Other Presidents Considered It?
In 1994, Bill Clinton pardoned his half-brother Roger Clinton for conspiracy to distribute cocaine and distribution of cocaine, during the final few days of his presidency in 2001.
It was among 140 pardons Clinton made shortly before leaving the White House, some of which were investigated by the House of Representatives Committee on Government Reform.
Trump made 73 pardons in the final hours of his administration, including people with close ties to him, such as Charles Kushner (father of his son-in-law Jared Kushner), 2016 campaign chairman Paul Manafort, and his former strategist Steve Bannon.
However, the public list did not include a pre-emptive pardon for himself.
Under justice department rules, applicants must satisfy a minimum waiting period of five years before they can be eligible to apply for a presidential pardon of a federal conviction.
However, effective pre-emptive pardons have been sought before, such as President Gerald Ford’s pardon of Richard Nixon for crimes he might have committed in office, following his resignation in the wake of Watergate.
In a September 1974 address from the Oval Office, Ford admitted that, while there were “no historic or legal precedents to which I can turn in this matter,” he granted Nixon clemency in light of the “serious allegations and accusations [that] hang like a sword over our former President’s head.”
In Bob Woodward and Carl Bernstein’s The Final Days, which chronicled the swan song of Richard Nixon’s presidency, Nixon’s advisors were said to have suggested the possibility of self-pardon, which Nixon considered but ultimately never enacted.
According to a 2021 report by the Brennan Center, whether the president could pardon himself is unclear, noting a 1974 DOJ memo, published a week before Nixon resigned, that a self-pardon would conflict with the “fundamental rule” that “no one may be a judge in his own case.”
The Department of Justice refers to this directly in an FAQ section on its website beneath the question “Can a President pardon himself?”
“Based on the Department’s Office of Legal Counsel opinion dated August 5, 1974, under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” it states.
“If under the Twenty-Fifth Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President.
“Thereafter the President could either resign or resume the duties of his office. Although as a general matter Congress cannot enact amnesty or pardoning legislation, because to do so would interfere with the pardoning power vested expressly in the President by the Constitution, it could be argued that a congressional pardon granted to the President would not interfere with the President’s pardoning power because that power does not extend to the President himself.”
Despite this advice, self-pardons remain an untested area, limited to the small number of incidents in which they’ve been contemplated.
The Legal Counsel’s opinion was advised in the context of the final days of the Nixon administration, as the late president and his advisors hurriedly considered options in the ongoing Watergate saga.
It may be that any “secret” pardon has been even more hastily implemented, and the circumstances surrounding Mar-a-Lago and Watergate are not necessarily like-for-like cases.
But, this all begs the question…
What Are Donald Trump’s Options?
Amy Howe, a reporter and former editor for SCOTUSblog, who has served as counsel in “over two dozen merit cases at the Supreme Court”, argued in 2021 that there remained two possible “work-arounds.”
“Congress could pardon the president (an unlikely scenario these days); or the president could allow the vice president to become the acting president under the 25th Amendment, on the ground that the president was temporarily unable to perform his duties, and the vice president could then pardon him,” Howe wrote.
As mentioned earlier, Trump has toyed with the idea, tweeting in 2018: “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself.”
Whether that view has softened following the January 6 riots, the raid on Mar-a-Lago, and other legal troubles remains to be seen, though the fact that he is no longer in office (and thus would have to take additional steps to prove a pardon was vetted) adds a new layer of complexity.
In a December 2020 report, the Cato Institute, a libertarian think tank, argued that the constitutional framers designed its system of checks and balances on the proviso that the American president, unlike the British king, could be held to legal account.
Impeachment, they considered, would be the check for the president.
Therefore, if the president were to self-pardon, impeachment could be the vehicle by which to punish him. However, the House of Representatives is majority Republican, substantially weakening the likelihood of a successful Trump impeachment.
Dr. David Brockington, a lecturer in Politics and Social Science Methods at the University of Plymouth, told Newsweek that Trump may yet push forward with self-pardon despite whatever risk remains.
“Given Trump’s notorious flouting of existing convention surrounding the pardon power— the DOJ has long-standing procedures that structures (if not fully governs) its use—it stands to reason that a pardon metaphorically scrawled on the back of an envelope in the closing minutes of his administration would be legally vulnerable,” Brockington said.
“But, the courts are as capable of reaching purely political decisions as they are legal decisions, so the outcome of such a case is anybody’s guess.
“These factors will have been anticipated by the DOJ, so if it does charge Trump with a crime, it would be its intent to see it through regardless of the existence of a pre-emptive self-pardon.”
‘Cannot Forgive a Crime the Thief Commits Tomorrow’
The timing of the potential self-pardon may be crucial too, particularly as is the case with the Mar-a-Lago investigation, as it would apply to crimes committed while in office (not crimes he later may have planned to commit).
There is an open question over when the papers found at his Mar-a-Lago residence were taken, and were critical, as professor of political science Todd Landman of the University of Nottingham told Newsweek.
“If he did produce a properly dated and verified document that was on file detailing a self-pardon, then it would apply to anything done while in office, which then leaves open the question about when he took presidential papers to Mar-a-Lago,” Landman said.
“If these were taken in full before the inauguration of Joe Biden, then this act may be covered by the pardon.
“If such a self-pardon exists, then I would suspect an impeachment process would be invoked, and possibly unlikely to proceed given the composition of the new House of Representatives. Again, timing is crucial, since the current house has very few days left.”
Professor Landman added that any document would need to have been vetted by the attorney general and that if a “secret pardon” existed, it would need new verification.
“We have not seen or heard that such a document exists, and production of it now would require further verification and testimony from those who vetted it,” he said.
“If that were verified, then the other processes would kick in.”
Indeed, while the Department of Justice recognizes that a president pardoning himself without the White House or DOJ’s Pardon attorney publicizing the decision “has never been tested” it states “there is no circumstance in which the Department’s Office of the Pardon Attorney would knowingly conceal the existence of a clemency grant.”
That still doesn’t answer the question that if a pardon were “secretly” filed, whether it could be later vetted or verified in some measure for later publication.
The Department of Justice has declined Newsweek’s request for information and comment on self-pardons.
The Supreme Court has said the president’s power to grant pardons is unlimited but, as Richard Lempert (the Eric Stein Distinguished University Professor of Law and Sociology Emeritus at the University of Michigan) argued in a 2021 essay for the non-partisan Brookings Institution think tank, it cannot be used to pardon someone for future crimes.
“The president can tell a thief not to worry about being convicted for the crime he has committed yesterday because he has pardoned him,” Lempert wrote. “But a pardon today cannot forgive a crime the thief commits tomorrow.”
This would mean that the president could not have granted himself a pardon ahead of taking the boxes from Mar-a-Lago, knowing that he was committing an offense.
The affidavit in support of the search of Mar-a-Lago quoted a CBS Miami article “Moving Trucks Spotted At Mar-a-Lago,” stating that “at least two moving trucks were observed at the PREMISES on January 18, 2021.”
Trump’s final day in office was January 20, 2022, as was the release date of his final list of pardons.
If the material taken from trucks on January 18 was the same as found at Mar-a-Lago, then, in theory, the only time Trump could have pardoned himself without violating the principle of pardoning “future crimes” would have been the day and a half before January 20.
There is still much we don’t know about the case, with papers like the affidavit being heavily redacted. However, the timing of when, where, and how Trump moved material and whether he pardoned himself (and at what point) are crucial pieces of the puzzle.
The Current State of Play
If the House of Representatives blocked impeachment, a referral to the Supreme Court, Landman told Newsweek, could be the opportunity to test the constitutionality of a presidential self-pardon.
“While it is a common sense understanding and principle of governance that those in power cannot pardon themselves, it is not explicitly prohibited by the constitution,” he added.
“It is thus an unsettled legal question and one that will test the bounds of the American constitutional system.”
Arguably, Trump is in a far more comfortable position now, following the midterms, to test the limits of this privilege.
With a Republican House that could easily block an impeachment process and a conservative majority Supreme Court—including Trump-picked judges—the former president may yet have enough sympathetic voices on The Hill to secure a victory.
But other experts, such as Rob Singh, a professor of politics and a U.S. politics specialist at Birkbeck University of London, are more skeptical, and called the idea “legally untenable” and that would “make a mockery of the Constitution and the rule of law.”
“It would represent a repudiation of everything that the U.S. constitutional democracy stands for and render the U.S. a true ‘banana republic’,” Singh said.
“That doesn’t mean that Trump won’t try this, of course. But I think that the DOJ would have to refer this to the U.S. Supreme Court. That might well be Trump’s calculation, of course—that a 6-3 conservative majority would find a way to sustain his action.
“But I doubt even this Court would be able to do so, either legally or politically.”
To what extent the Supreme Court would intervene remains to be seen, with little decision-making beyond cementing existing privileges.
Writing for SCOTUSblog, Howe argued that Supreme Court decision-making has largely reaffirmed the “unlimited” power of the president to grant powers, quoting Ex parte Garland “which involved President Andrew Johnson’s pardon of a lawyer who had served in the legislature of the Confederacy,” which indicated “that the president’s pardon power covers all federal offenses.”
“And in Connecticut Board of Pardons v. Dumschat, the court emphasized that pardons have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review,” Howe wrote.
“The broad and largely unreviewable pardon power outlined in the Supreme Court’s cases means that the president has significant leeway to pardon, for example, family members or close associates such as former New York City Mayor Rudolph Giuliani—although neither Giuliani nor any Trump family members have been charged with any crimes.”
Singh told Newsweek that it “would mean, in effect, that future presidents could ignore the law, the Congress, and more, to do whatever they so wished, knowing that they could simply pardon themselves at a later date.”
He continued: “In the longer term, it might prompt Congress to intervene or even an effort to enact a constitutional amendment to ensure that no president could ever wield such power.”
There’s also the argument of specificity, i.e., whether the specifics of a conviction ought to be detailed before a pardon can be granted. Nixon’s pardon was deliberately broad, so his case could be used to overcome such a challenge.
As University of Michigan’s Lempert also wrote: “A pardon which doesn’t specify in sufficient detail the offenses pardoned conflicts with the notion that accepting a pardon is an implicit admission of guilt.
“It is hard to say that a person who has accepted a pardon for any offense he or she may have committed has admitted guilt to an offense when we don’t know what wrongful behavior has been acknowledged.”
Will the Former President Pull a Trump Card?
Bringing all this reasoning together, it would be an extraordinary precedent for Trump to set, which may yet be challenged on constitutional grounds.
If Trump has granted himself an undeclared self-pardon, much would ride on when he granted it (with evidence suggesting that any final opportunities he had to offer a pardon may have preceded the removal of material from the White House to Mar-a-Lago).
John Owens, professor of United States government and politics in the Centre for the Study of Democracy at the University of Westminster, told Newsweek it could “create a dangerous new precedent for presidents to declare unilaterally they are above the law” and “have the effect of insulating themselves from being held accountable for any crimes they committed in office.”
“With Trump one can never rule all manner of legal shenanigans, all designed to obfuscate and delay legal judgment against him and keep him out of jail, financed largely by the small donations of his impecunious supporters,” Owens added.
“Attorney-General Garland, however, is on to his tricks and will undoubtedly challenge many of these ruses in the courts, probably ultimately successfully but all this will take time, which works to Trump’s advantage.”
The combination of a lack of precedent on self-pardon, and the even more controversial pre-emptive or “pocket” pardon, appear to make the legal case for such a move rather tenuous.
It is also not clear how and when such “secret” pardon would need to have been vetted, raising broader and far-reaching questions about pardon powers of former presidents.
But in absence of clear guidance in the constitution about such a scenario, the possibility cannot be ruled out, and if it were to end up in the hands of the Supreme Court (a distinct possibility if Trump proceeds along this path), then at the very least a complex and protracted legal battle could ensue.
With so few details about the timing of what happened at the White House and Mar-a-Lago (with disclosures surrounding it, such as the affidavit, currently redacted) and the relatively untested nature of the privilege, Trump could yet make himself the test case for such a scenario.
Newsweek has contacted Donald Trump’s representatives for comment.
https://www.newsweek.com/could-donald-trump-grant-himself-pocket-pardon-1767783 Could Donald Trump Grant Himself a ‘Pocket Pardon’?