Let me digress from our discussion of legislative discontinuity to address a more topical issue: presidential self-pardons. The question whether the president may validly grant a pardon to himself has been sporadically discussed since the inception of the current administration, but the debate accelerated following President Trump’s issuance on June 4, 2018 of the following tweet:
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
Whether Trump in fact has the “absolute right” to pardon himself is not at all clear, but it is not a very important issue at this juncture. In fact, as I will explain over this series of posts, it is not a question that should be of much interest to Congress at all. What should matter to Congress is why the president is raising the possibility of a self-pardon, how this relates to his use (or abuse) of the pardon power to date, and whether his current or potential exercise of the pardon power constitutes a prima facie impeachable offense.
Before getting to that, however, let us consider what “numerous legal scholars” have actually said about presidential self-pardons.
The Constitutional Validity of the Self-Pardon
Contrary to the president’s tweet, there is no scholarly consensus on the validity of self-pardons. As Professor Brian Kalt has explained (well before the current administration):
Courts cannot overturn—or even review—an ill-advised pardon, but they can reject an invalid one. Self-pardons are on the margin. There is a good, simple argument that self-pardons are valid, and a worthy, more complicated argument that they are not. There is no consensus among lawyers or scholars sufficient to stop a president from pardoning himself, or to deter a prosecutor from challenging such a pardon. So the prosecutor would prosecute, the president (or ex-president by that point) would resist, and the courts would decide the issue.
Brian C. Kalt, Constitutional Cliffhangers: A Legal Guide for Presidents and their Enemies 41 (2012). Note that this issue will not and cannot be resolved unless and until some president attempts to pardon himself, and at that point it will be up to the courts, not Congress, to decide on the validity of the pardon.