On the presidential campaign trail, Republican candidates are weighing in on whether they would pardon former President Donald Trump if he is convicted of charges stemming from unlawful possession of classified documents.
One candidate, entrepreneur Vivek Ramaswamy, has offered a full-throated pledge that, if he wins the presidency, he would pardon Trump. Other GOP candidates have said they would consider pardoning Trump, or at least haven’t ruled it out. Just two candidates, former New Jersey Gov. Chris Christie and former Arkansas Gov. Asa Hutchinson, have said clearly that they would not pardon Trump if elected. Here’s where the most prominent Republicans stand.
The scenario prompts a few questions: If one of these candidates wins, could he or she pardon Trump? Under what circumstances? And could Trump, the early front-runner in the primary, simply pardon himself?
A self-pardon would be constitutionally murky. But a pardon from another president, at least for any federal crimes, would seem like a realistic possibility if the desire was there, legal experts said.
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"Clemency is a constitutional power with few restrictions," said Jeffrey Crouch, an assistant professor of American politics at American University who specializes in studying pardons. A pardon is a form of clemency.
Could the next president pardon Trump?
The Justice Department uses decades-old procedures to vet potential recipients before a president grants a pardon.
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But a president "can grant clemency without needing to wait for or rely on a review," Crouch said.
In other words, any guardrails on the president’s power amount to norms rather than laws.
Article II, Section 2, of the Constitution says the president "shall have the Power to grant Reprieves and Pardons for offenses against the United States, except in Cases of Impeachment."
The power of the pardon "is considered one of the least limited powers of the executive," James Robenalt, a lawyer at the firm Thompson Hine and an expert on Watergate, told PolitiFact in 2020.
Robenalt said the authority can be traced back to the power of English kings to pardon. In Federalist Paper No. 74, Alexander Hamilton wrote, "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed."
The Supreme Court ruled in the 19th century case Ex Parte Garland that a president could issue a pardon even before someone was convicted of a federal crime, said Michael Gerhardt, professor at the University of North Carolina School of Law.
"It can extend to federal offenses for which someone has not yet been convicted or been prosecuted," Gerhardt said, such as Richard Nixon, who was pardoned for Watergate crimes by his presidential successor, Gerald Ford.
A presidential pardon wouldn’t affect state or civil cases
One wrinkle in Trump’s case: He is not facing only federal charges.
"Presidents can pardon anyone they want for federal crimes, but not state crimes," said Harold H. Bruff, professor emeritus at the University of Colorado Law School.
This means that state-based charges, such as the indictment of Trump in New York for charges related to his payment to adult entertainment actor Stormy Daniels, would not be pardonable by the president. The governor of New York could pardon him for those, though with a Democratic governor through at least the end of 2026, that seems unlikely.
A presidential pardon would also affect only criminal liability, not civil liability, said Frank O. Bowman III, a University of Missouri law professor. And it would not preempt investigations launched by Congress, he said.
A GOP candidate who is elected president and pardons Trump would need to be prepared for political fallout, as Ford received after pardoning Nixon. Potentially, they could be impeached and removed from office.
Could Trump pardon himself?
No one knows for sure.
"There is no consensus among scholars on whether a president may pardon himself," Gerhardt said.
Perhaps the strongest argument for the legality of a self-pardon is that the Constitution doesn’t explicitly prohibit it. However, there are several circumstantial arguments that, collectively, make a strong case that a self-pardon isn’t allowed, legal experts said.
The Constitution’s pardon clause uses the verb "grant," which ordinarily means giving to someone else. Going back to its English monarchical origins, a pardon has long been conceived as an act of mercy. Neither of these suggest something that can be done to oneself.
Bruff said that when the Constitution was being written, "a background value everywhere in the air was that no one should be a judge in their own cause." This notion, sometimes referred to in Latin as "nemo judex in causa sua," is a longstanding common law principle, he said.
"People cannot prosecute, judge, or sit on juries in their own cases. Like a judge who would have to submit to the authority of another judge if he were being prosecuted, a president must seek a pardon from his successor," Brian Kalt, professor of law at Michigan State University, has written.
That is what happened with Nixon. It was his successor, Ford, who ultimately gave Nixon a wide-ranging pardon.
One feature of Ford’s pardon of Nixon could give Trump second thoughts about accepting one. Ford asserted that Nixon accepted guilt by accepting his pardon, even keeping "a note in his wallet" with the citation for a 1915 case, Burdick v. United States, that he believed bolstered that interpretation, Robenalt said.
However, there’s some disagreement among experts about whether Ford was right about the case’s applicability, Robenalt added.
A self-pardon, Crouch said, "would be controversial but might succeed in forgiving any federal offenses he has committed, although the Supreme Court would likely have to decide the question."
Trump could also invoke the 25th Amendment to temporarily hand the reins of power to his vice president, who would then pardon Trump before reversing the shift of power.
"You never know until you have the temerity to try," said Daniel Kobil, a Capital University law professor. "Even Richard Nixon didn’t have the temerity to try it."
