Donald Trump Pardoning Himself Is Being Debated, but Is There Precedent for It?

The possibility that President Donald Trump could try to pardon himself has become the focus of speculation in the media and on social networking sites in recent days as his administration enters its final weeks.

There are outstanding questions about whether a president has the power to self-pardon as no precedent exists, if such a pardon could be overturned and whether it would indicate guilt on his part.

On Thursday, CNN political commentator S.E. Cupp weighed in, saying pardon power should be reformed and Trump granting himself clemency would make him look guilty.

"If the president has designs on running again for president, this would certainly imperil that, and I would think encourage other justice departments to really look at what he had done while in office if he is tacitly admitting he needed to be pardoned for stuff," Cupp said.

"I'm not sure this is constitutional or legal, but it seems pretty clear it would be inadvisable for him to do that."

Also on Thursday, CNN commentator Asha Rangappa suggested that a self-pardon "might be a risky move."

Rangappa, a lawyer and senior lecturer at Yale University's Jackson Institute for Global Affairs, said that if the president pardons himself it could set an unwelcome precedent.

"I think that it would be incumbent on a future Department of Justice to try to challenge that, because you don't want that to be the precedent, or at least you want the Supreme Court to clarify the bounds of this," she said.

Fox News also discussed the issue on Thanksgiving. Host Julie Banderas asked Reuters correspondent Jeff Mason if the president could grant himself a pardon. Mason acknowledged that there were "a lot of question marks" but ultimately said he thought Trump couldn't do so.

On Wedneday, Fox Business host Neil Cavuto posed the hypothetical of whether the president can pardon himself to veteran Republican political consultant Karl Rove.

"He obviously can, but why?" Rove said. "He would have to admit that there were things he had done that were worthy of being pardoned about. Think about the final note that's going to strike.

"Again, it is an unlimited power, no ifs, ands, or buts about it. But whether that would be an appropriate use, whether history would judge that harshly, is another question entirely."

In response to Cavuto's point that Trump may be looking to balance those considerations against any legal risk he faces when out of office, Rove added: "Remember, he can pardon for federal offenses, the things that the district attorney in Manhattan is looking into are state offenses, over which he has no authority.

"A governor may be able to issue a pardon for those kind of actions, but the kind of things that the DA in Manhattan is looking at are not federal charges, and therefore, he can't pardon himself of those."

A Trump self-pardon would be precedent-setting. No president in U.S. history has even attempted to grant themself clemency and while there's disagreement among legal scholars about the issue, it has never been tested in the courts.

"No American president, including Richard Nixon, has ever attempted to pardon himself," Jeffrey Crouch, assistant professor of American politics at American University, told Newsweek. However, Crouch believes the president has the power of self-pardon.

Nixon resigned from office in 1974 as a result of the Watergate Scandal. He received a pardon from his successor, Gerald Ford, who had served as Nixon's vice president.

Brian C. Kalt, professor of law at Michigan State University, doesn't believe Trump can pardon himself. He told Newsweek: "Granting a pardon is something that can only be done from one person to another. Linguistically, both 'grant' and 'pardon' are inherently bilateral."

"There is a venerable principle in American law that you cannot be the judge in your own case," Kalt said.

Because no president has tried to pardon himself, there is no legal precedent around the matter. Glenn Kirschner, legal analyst for NBC News and MSNBC, has argued such a pardon could be challenged.

"If Trump delivers a pardon to stop the recipient from providing incriminating information about him, such a pardon would be corrupt & challengeable in court," Kirschner tweeted on November 26.

"If Trump pardons HIMSELF, that would be corrupt & challengeable in court. Presidential pardons are NOT unchallengeable."

There is no consensus among legal experts about the ability to challenge or overturn a presidential pardon but there's also little precedent on the issue. Ultimately, these questions would likely be decided by the U.S. Supreme Court.

Trump and Pence in the Briefing Room
U.S. President Donald Trump (L) speaks as Vice President Mike Pence (R) looks on in the James Brady Press Briefing Room at the White House on November 24, 2020 in Washington, DC. Trump made brief remarks about the stock market hitting 30,000. Speculation has mounted about Trump pardoning himself. Chip Somodevilla/Getty Images