Fox News' senior judicial analyst Judge Andrew Napolitano has said that President Donald Trump has the power to pardon himself and the Supreme Court would likely uphold that decision.
In an op-ed published on the Fox News website on Thursday titled "Can President Trump pardon himself?" the former New Jersey Superior Court judge argued that the president should pardon those who were convicted for use and possession of drugs under federal law before pardoning himself or members of his family.
"Trump is the subject of a criminal investigation for alleged or potential violations of New York state laws," Napolitano wrote. "But the existence of a state criminal probe of the president does not impair his ability to insulate himself from the legal consequences of a federal criminal probe, since it is clear that the president cannot pardon anyone — including himself — for state offenses."
Napolitano went on to explain that there is limited case law regarding the presidential pardon power and what little there is is likely to benefit Trump.
Citing controversial pardons by past presidents, the former judge said that it is possible to give "prophylactic pardons" for crimes that have not been charged. This is also the position of legal experts who've weighed in on the matter.
"If the president pardons for crimes not yet charged, is he exercising powers that the framers never understood that they were giving him?" Napolitano asked.
"If the president pardons himself, is he acting as a judge in his own case? The answer to both of these questions is yes. Yet, the Supreme Court and history teach that while such pardons may be eviscerated politically, they will be upheld legally."
"Before the president pardons his children, his colleagues and himself, he should pardon all those convicted under federal drug laws for use and possession. They harmed no one."
According to the non-profit, non-partisan Prison Policy Initiative, there may be around 100,000 people in federal prisons for non-violent drugs-related offenses. This does not take into account those convicted who are not currently serving time.
"He should also pardon Julian Assange, who revealed the slaughter of innocent civilians and the cover-up by the U.S. military in Afghanistan, and Edward Snowden, who revealed that the feds have engaged in secret, unlawful and warrantless spying on hundreds of millions of innocent Americans," Napolitano wrote.
Democratic Congresswoman Tulsi Gabbard has also urged Trump to pardon Snowden and Assange.
Despite Napolitano's certainty about Trump's ability to self-pardon, legal scholars who spoke to Newsweek on the subject were divided. Brian Kalt, professor of law at Michigan State University, has argued that "any federal prosecutors who were thinking of going after him would not be deterred in any way by a self-pardon. They would fight the self-pardon in court and they would have a good chance of beating it."
Jeffrey Crouch, assistant professor of American politics at American University and author of The Presidential Pardon Power, believes the president can issue himself with a pardon but said "I don't think he should do so even if he can."
