Donald Trump is running out of options. Everyone but Donald Trump can see this.
Come January 20, one way or another, he will leave the White House and will no longer be afforded the extensive protections the position of world’s most powerful man provides.
And there’s plenty that he may need protecting from – Trump faces five potential lawsuits and investigations once he leaves office including possible tax fraud and defamation suits.
So it’s worth examining what at first seems outlandish but is not out of the realms of possibility – the self pardon.
This is the general idea – before leaving office, Trump pardons himself of some/all possible crimes thus rendering himself immune from prosecution.
And in a bonkers quirk of the law that defies logic or reason, the president’s pardoning powers extend to any crimes that have not been revealed or charged.
He even floated the idea himself in 2018, saying he had the “absolute right” to do it. And in 2017, his legal team suggested it may happen in the event of him being found guilty of any crimes related to the Special Counsel investigation into Russian collusion.
So, the big question...
Can Donald Trump pardon himself?
In short, the answer is nobody knows. No president has ever had the need to try it. But then, there’s never been a president quite like Trump
“When people ask me if a president can pardon himself, my answer is always: ‘Well, he can try,’” Brian Kalt, a constitutional law professor at Michigan State University, told Reuters.
“The Constitution does not provide a clear answer on this.”
Many legal experts have said that a self-pardon would be unconstitutional because it violates the basic principle that nobody should be the judge in his or her own case. Kalt said this, in his view, was the stronger argument.
Trump could try to pardon himself preemptively to cover the possibility of prosecution after he leaves office.
In that case, the pardon’s legitimacy might never be tested in court, said Kalt.
For a court to rule on the pardon’s validity, a federal prosecutor would have to charge Trump with a crime and then Trump would have to raise the pardon as a defence, he said.
There is another possible scenario that might be more plausible.
Could the vice president pardon Trump?
In a 1974 memorandum, a Justice Department lawyer said president Richard Nixon could not pardon himself but that another option was constitutional: that he temporarily step down, receive a pardon from his vice president and then regain power.
In order to do that, Nixon would have had to invoke the 25th Amendment of the US Constitution, which allows an incapacitated president to temporarily step down.
Nixon ultimately resigned in the face of the Watergate scandal and almost certain impeachment and removal from office.
His successor, Gerald Ford, later pardoned Nixon for any federal crimes he committed or might have committed while in office.
So what’s to stop this? Not much except an awareness of how this would look. While Trump is unlikely to go for another political office when his presidency is over, Pence is a career politician in the Republican party with many years ahead of him.
It is not clear what Pence would have to gain from agreeing to pardon Trump, said Corey Brettschneider, a professor of political science at Brown University.
“I don’t think Pence would want that to define his legacy,” Brettschneider said.
Would a pardon give Trump total protection?
No, it wouldn’t. Crucially, a pardon only applies to federal crimes, not state crimes. That means pardons would not, for example, protect Trump or the Trump Organisation from the criminal investigation being conducted by Manhattan district attorney Cyrus Vance, a state prosecutor.
The probe originally focused on “hush money” payments that Trump’s former lawyer and self-described fixer Michael Cohen paid before the 2016 election to two women who said they had sexual encounters with Trump, which the president has denied.
Vance, a Democrat, has suggested in recent court filings that his probe is now broader and could focus on bank, tax and insurance fraud, as well as falsification of business records.
The investigation poses a threat to Trump, said Corey Brettschneider, a professor of political science at Brown University.
“The fact that they have issued the subpoenas and have litigated all the way to the Supreme Court suggests that this is a very serious criminal investigation of the president,” Brettschneider said.