• Testing the boundaries of constitutional power to nullify criminal liability, explained
Charlie Savage at the New York Times today has a legal explainer on the pardons Trump has discussed possibly granting that could test the boundaries of his constitutional power to nullify criminal liability.
May a president pardon himself?
This is unclear. There is no definitive answer because no president has ever tried to pardon himself and then faced prosecution anyway. As a result, there has never been a case that gave the Supreme Court a chance to resolve the question. In the absence of any controlling precedent, legal thinkers are divided about the matter.
Those who think a president can pardon himself point out that the relevant text in the Constitution is broadly written and contains no explicit exception precluding a self-dealing use or abuse of that power. Because the founders did make an explicit exception for cases of impeachment, they argued, that implies they did not intend there to be any other exceptions.
But other legal thinkers have come up with theories for why the Supreme Court might nevertheless reject a purported self-pardon if it ever came up. For example, some scholars have argued that the founders' use of the word "grant" should be interpreted as meaning one person giving something to another, so a president cannot grant a pardon to himself.
In August 1974, four days before Nixon resigned, Mary C. Lawton, then the acting head of the Justice Department's Office of Legal Counsel, issued a terse legal opinion stating that "it would seem" that he could not pardon himself "under the fundamental rule that no one may be a judge in his own case." But she did not explain what transformed that principle into an unwritten legal limit on the power the Constitution bestows on presidents.
Is there a way Trump might try to engineer a more clearly legal pardon for himself?
Yes. He could get Vice President Mike Pence to do it for him, using the 25th Amendment.