In a column for Politico on Tuesday, University of Baltimore School of Law professor Kimberly Wehl addressed the possibility of former President Trump trying to pardon himself if he is convicted of charges related to the special counsel’s probe of the January 6 riot and Trump’s attempts to overturn the 2020 election.
Wehl suggests that before leaving office, Trump might have issued a “pocket pardon” for himself in case he ever faced federal charges in the future.
But the question of whether a president can pardon himself has never been considered by the courts, Wehl explains.
Since impeachment is not pardonable under the Constitution, Wehl argues that any criminal charges related to impeachment proceedings may not be pardonable either. In short, if Trump is convicted of a crime related to the investigation into January 6 and his efforts to overturn the election, he would not be able to pardon himself.
Wehl also argues that Trump could not legitimize a self-pardon using the Constitution. She explains that the Constitution bars any person from holding office who engages in rebellion or insurrection. So if the grand jury in the special counsel probe indicts Trump under the federal sedition law, if Trump attempts to pardon himself, it would defy Supreme Court precedent that presidential pardons cannot undermine the Constitution.
Wehl acknowledges that some “commentators” assume that presidential pardon power has no limits except in cases of impeachment and that might include self-pardons. However, Wehl believes this position is “overblown.”
In a column at 19FortyFive, writer Brent Eastwood also addresses the possibility that Trump might try to pardon himself if by some chance he is reelected president in 2024.
In 2018, Trump tweeted that he has an “absolute right” to pardon himself. But according to Eastwood, Trump would not be able to pardon himself for the charges he faces in New York since they are state crimes.
Eastwood also touches on the same arguments Wehl made in her Politico column and concludes that Donald Trump should be advised against issuing a pardon for himself because it would “shake the foundations of the country.”