Could Trump pardon himself in federal cases if he is re-elected? What we can VERIFY

Editor's note (11/7/2024): Special counsel Jack Smith is moving to wind down the two federal cases against Donald Trump before he takes office in light of longstanding Justice Department policy that says sitting presidents cannot be prosecuted, the Associated Press reported. The story continues as originally published below:

Former President Donald Trump has been indicted in four criminal cases. Two of the indictments are federal, and the others have been brought by the states of Georgia and New York. 

The most recent indictment in Georgia charged Trump with 13 felonies, including a violation of the state’s RICO Act, over his alleged efforts to overturn Georgia’s 2020 presidential election results.

Lawyers for Trump’s former chief of staff Mark Meadows, who is also facing charges in the Georgia investigation, have filed a motion to transfer the case from state to federal court. 

VERIFY previously confirmed that Trump would not be able to pardon himself in state cases if he is re-elected because the Constitution does not allow presidential pardons for state crimes. 

Several readers have asked VERIFY if Trump could pardon himself from the federal charges he is facing. 

THE QUESTION

Could Trump pardon himself for any federal convictions if he is re-elected as president?  

THE SOURCES

• U.S. Constitution, Article II Section 2
• Supreme Court of the United States, Ex parte Garland
• 1974 Department of Justice memo
• Brennan Center for Justice
• Nicolas Creel, assistant professor of business law and constitutional law expert at Georgia College and State University
• Matthew Mangino, criminal attorney, former elected prosecutor and adjunct political science professor at Thiel College
• Doron Kalir, clinical professor of law at Cleveland-Marshall College of Law
• Norman Eisen, senior fellow in governance studies at the Brookings Institution

THE ANSWER

The Constitution gives the president broad power to grant pardons in federal cases. However, legal experts say it’s an untested gray area as to whether that power extends to self-pardons.

WHAT WE FOUND

The United States Constitution gives the president broad power to issue pardons for federal convictions, which can reduce or eliminate the punishment for certain crimes.

A president’s pardon power could extend to their ability to grant a self-pardon. But legal experts say this is an untested gray area, since it’s never happened before and courts haven’t decided on the issue. 

Article II, Section 2 of the Constitution establishes the president’s ability to issue pardons with two limitations. 

First, the president can only pardon “offenses against the United States.” Legal experts told VERIFY that this refers only to federal crimes. 

A president cannot pardon state crimes – that power typically rests with the state’s governor, a board or a combination of the two. 

Second, a sitting president cannot pardon anyone in cases of impeachment, including themselves. 

The Supreme Court has also ruled the president can pardon someone at any time after a crime has been committed, “either before legal proceedings are taken or during their pendency, or after conviction and judgment.”

But the Constitution does not specifically address whether the president can pardon themselves, nor has the Supreme Court ruled on the issue. 

Some legal experts, like Georgia College and State University law professor Nicolas Creel, say Trump may be able to issue a self-pardon because the Constitution doesn’t explicitly address the scenario. 

Matthew Mangino, a criminal attorney and adjunct political science professor at Thiel College, agrees.

“There’s nothing that says [Trump] can’t actually issue the pardon,” he said. “The question is, is it enforceable? And the courts would have to decide that.”

Legal experts have also cited a longstanding principle that “no person may be a judge in his or her own case.” The Department of Justice’s Office of Legal Counsel asserted in a 1974 memo that a presidential-self pardon would “collide” with this “fundamental rule,” the Brennan Center for Justice says. 

“While the [DOJ] opinion is not binding, the reasoning of this opinion – centering on the principle that no person may be a judge in his or her own case – is compelling,” Norman Eisen, senior fellow in governance studies at the Brookings Institution, said in 2018.

Trump has previously indicated that he would pardon himself if he is convicted of crimes, writing on social media in 2018 that he has the “absolute right” to do so. 

If Trump is convicted and re-elected, and he does attempt to pardon himself, VERIFY’s experts agree the issue would likely make its way to the Supreme Court. 

The self-pardon “could be challenged in court as an abuse of the Constitution, a violation of the pardon power and not valid,” Eisen said.