WASHINGTON – U.S. President Donald Trump is asserting a power to pardon himself that not even Richard Nixon tried to claim before resigning the presidency in 1974, and that the Justice Department has said isn’t constitutional.
In a legal opinion issued just four days before Nixon stepped down, the Justice Department’s Office of Legal Counsel concluded that a president can’t pardon himself. The opinion was written in response to concerns that he might try to do so.
“Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself,” wrote Mary Lawton, who was then acting assistant attorney general.
White House spokeswoman Sarah Huckabee Sanders told reporters on Monday that the White House hasn’t asked for an updated or new legal opinion on the matter.
“Thankfully, the president hasn’t done anything wrong and therefore wouldn’t need one,” Sanders said. “Certainly no one is above the law,” Sanders said when asked if Trump believes he is above U.S. law.
The legal issues may be unresolved, but any move by Trump to pardon himself would lead to political consequences that could jeopardize his presidency.
“I think he’s acting like a guilty man and he’s flailing,” said John Dean, former White House counsel to Nixon during the Watergate scandal. “It is an admission of guilt. There is case law that says if you accept a pardon you are admitting you’re guilty.”
Dean said he was not aware of Nixon ever discussing pardoning himself. Doing so most likely would lead to immediate articles of impeachment against Trump that would overtake any legal case working its way through the courts, Dean said.
In making the assertion Monday, Trump provoked a new controversy as part of his ongoing battle against Special Counsel Robert Mueller’s investigation into whether Trump or any of his associates helped Russia interfere in the 2016 election.
“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?” Trump said Monday on Twitter. “In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!”
The claim was the latest example of Trump and his legal team pressing the boundaries of what a president can legally and ethically do in response to being the subject of a federal criminal investigation. No president has ever pardoned himself.
“President Trump is wrong,” Rep. Jerrold Nadler, the top Democrat on the House Judiciary Committee, said in a statement.
“The president is no different from other public officials who are regularly prosecuted for taking bribes in exchange for official acts or using their office to interfere with criminal investigations,” Nadler said. “No President is above the law.”
Even some Republicans were skeptical.
“It seems unlikely in my mind that you could pardon yourself,” said Republican Sen. Bill Cassidy of Louisiana. “I haven’t thought about it a lot.”
Legally, though, the matter has never been resolved.
A former senior U.S. law enforcement official said the 1974 Justice Department opinion doesn’t dictate what Trump can do. There is no clear case law or precedent on whether a president can pardon himself and would have to be resolved through a court case, the official said.
Regardless, other presidents have resisted even considering using the pardon power for themselves.
Greg Craig, a former White House attorney tasked with coordinating President Bill Clinton’s impeachment defense, said a presidential self-pardon was never contemplated by his defense team. “It never came up,” Craig said in a phone interview.
Clinton’s Justice Department didn’t conduct an additional review of the president’s ability to pardon himself, according to a former senior administration official familiar with the matter.
Trump appears to be testing the powers and limitation of his pardoning power, including by issuing controversial pardons. He has pardoned five people so far, including recently conservative commentator Dinesh D’Souza.
Trump has said he’s considering pardoning others, including businesswoman Martha Stewart, and commuting the sentence of former Illinois Gov. Rod Blagojevich.
“I think the notion that an executive can pardon him or herself is contrary to perhaps the most basic principle of the rule of law upon which our society is founded,” said attorney Ulysses Smith. “We are a society based on the rule of law, not of men.”
Smith, a New York-based lawyer, is a director at the London-based Bingham Centre for the Rule of Law and chief executive officer of the Telos Governance Advisers.
“I think the founders of our country would have a hard time with the notion that there is an executive that has such power that they could intervene and pardon themselves when they’re the subject of an investigation,” said Smith, who notes he is not a constitutional law scholar. “I think that was very much something they were concerned about when they did separate the powers of the government into different branches.”
He acknowledged the U.S. Constitution does give the president the power to pardon, but called it bare-boned and untested as to the president himself.