In Unpacked, Brookings experts provide analysis of Trump administration policies and news. Subscribe to the Brookings Creative Lab YouTube channel to stay up to date on the latest from Unpacked.
THE ISSUE: On June 4, 2018, President Trump tweeted “I have the absolute right to PARDON myself,” setting off a firestorm of legal debate on the constitutionality of presidential self-pardons, and President Trump’s use of pardons more broadly.
“Ever since the Constitution has been written, it’s been recognized that the president’s power of pardoning is […] not so broad as to allow him to pardon himself.”
The things you need to know:
- President Trump has made the claim that he has the power of self-pardon.
- The text and spirit of the Constitution strongly suggest the contrary.
- Ever since the Constitution was written, it’s been recognized that the president’s power of pardon is broad, but not so broad as to allow him to pardon himself.
- This idea stems from a legal principal established over three centuries ago in Anglo-American law. That rule is that no person may be a judge in his or her own case.
- The last time this issue was floated was right before the resignation of President Richard Nixon. The Department of Justice wrote that a president may not pardon himself.
- This DOJ opinion is not binding in the courts. But the reasoning of the opinion—centering on this principal that no person may be a judge in his or her own case—is compelling.
- If such a self-pardon were issued, it could be challenged in court as an abuse of the Constitution, a violation of the pardon power, and not valid. The courts would likely follow the reasoning of the Office of Legal Counsel that a president may not issue a self-pardon.
Free speech shouldn’t be a partisan issue, but it has been drawn into the larger dynamics of polarization in this country.