Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Whether Presidents may pardon themselves is an unresolved legal question for which there is no judicial precedent.1 Some federal officials discussed the prospect of a self-pardon during the Nixon,2 Clinton,3 and first Trump Administrations;4 however, no President has issued a self-pardon, and no federal court has directly addressed the matter.5 Legal scholars and commentators have debated the question and reached differing conclusions. Proponents of the view that the President may pardon himself often emphasize the lack of limitation in the constitutional language,6 as well as certain historical views and pronouncements of the Supreme Court as to the breadth of the President’s pardon power in general.7

By contrast, those asserting that the President lacks the power to pardon himself raise competing textual arguments8 and suggest that self-pardons could be inconsistent with other constitutional provisions, such as the Article I provision stating that officials convicted in an impeachment trial “shall . . . be liable and subject to Indictment, Trial, Judgment, and Punishment, according to law.” 9 A Department of Justice Office of Legal Counsel opinion issued shortly before President Nixon’s resignation concluded that the President cannot pardon himself “[u]nder the fundamental rule that no one may be a judge in his own case,” 10

. The OLC opinion did allude to a “different approach” to pardons that “could be taken” and that, according to the opinion, would potentially circumvent any constitutional limitation on self-pardons: the President could declare a temporary inability to perform the duties of his office pursuant to the Twenty-Fifth Amendment, after which the Vice President could, as Acting President, pardon the President and then allow him to resume his duties or resign. . Furthermore, President Nixon apparently received advice from other members of his legal team that a self-pardon would be available to him. Nida & Spiro, supra note 6, at 212–13. and some scholars subsequently have supported this opinion.11 Even if a President were to pardon himself, there is some debate as to whether a court would issue a definitive ruling on the pardon’s lawfulness given practical considerations and separation-of-powers concerns.12 Some Members of Congress have introduced constitutional amendments that would preclude self-pardons, but no proposals have been adopted.13

Footnotes

1

As discussed infra, there is some debate about the extent to which a self-pardon would be susceptible to judicial resolution. See infra note 12 and accompanying text. For background on methods of constitutional interpretation courts might apply if the matter were to come before the judiciary, see CRS Report R45129, Modes of Constitutional Interpretation, by Brandon J. Murrill (2018).

2

See Presidential or Legislative Pardon of the President, 1 Op. O.L.C. Supp. 370, 370 (1974) (opining during the Nixon Administration that a President may not pardon himself based on “the fundamental rule that no one may be a judge in his own case” ).

3

Impeachment Inquiry: William Jefferson Clinton, President of the United States: Hearing Before the H. Comm. on the Judiciary, 105th Cong. 358 (1998) (statement of Rep. Robert Goodlatte) ( “The prevailing opinion is that the President can pardon himself.” )

4

Donald J. Trump (@realDonaldTrump), × (June 4, 2018, 8:35 AM), >https://x.com/realDonaldTrump/status/1003616210922147841 ( “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself . . . .” ).

5

See Richard A. Posner, An Affair of State: The Investigation, Impeachment, and Trial of President Clinton 108 (1999) ( “There is no case law on the question, of course[.]” ).

6

E.g., id. ( “[I]t has generally been inferred from the breadth of the constitutional language that the President can indeed pardon himself[.]” ); Jonathan Turley, Self-Pardons: A Response to Tribe, Painter, and Eisen, Res Ipsa Loquitur— The Thing Itself Speaks (July 23, 2017), >https://jonathanturley.org/2017/07/23/self-pardons-a-response-to-tribe-painter-and-eisen/ (noting that “the Constitution does not clearly limit the power of pardons beyond its use with regard to impeachment” ); Robert Nida & Rebecca L. Spiro, The President as His Own Judge and Jury: A Legal Analysis of the Presidential Self-Pardon Power, 52 Okla. L. Rev. 197, 216 (1999) ( “A textual interpretation of the Pardon Clause provides the strongest argument that a self-pardon is not prohibited by the Constitution.” ).

7

E.g., Paul F. Eckstein & Mikaela Colby, Presidential Pardon Power: Are There Limits and, If Not, Should There Be?, 51 Ariz. St. L.J. 71, 100 (2019) (stating that the textual argument is “consistent with the Federalist papers” and “strong” given “the Supreme Court’s view that the constitutional text gives the President plenary pardon power” ); see also Jack Goldsmith, A Smorgasbord of Views on Self-Pardoning, Lawfare (June 5, 2018), >https://www.lawfaremedia.org/article/smorgasbord-views-self-pardoning (collecting views on both sides).

8

Eckstein & Colby, supra note 7, at 98 (acknowledging argument that the constitutional text establishes power to “grant” pardons, and “a grant is something given to another person” ).

9

Laurence H. Tribe, Richard Painter, & Norman Eisen, No, Trump Can’t Pardon Himself. The Constitution Tells Us So, Wash. Post (July 21, 2017), >https://www.washingtonpost.com/opinions/no-trump-cant-pardon-himself-the-constitution-tells-us-so/2017/07/21/f3445d74-6e49-11e7-b9e2-2056e768a7e5_story.html (referencing U.S. Const. art. I, § 3, cl. 7). Others argue that a self-pardon would conflict with the Article II requirement that the President “take Care that the Laws be faithfully executed,” e.g., Philip Bobbitt, Self-Pardons: The President Can’t Pardon Himself, So Why Do People Think He Can?, Lawfare (June 20, 2018), >https://www.lawfaremedia.org/article/self-pardons-president-cant-pardon-himself-so-why-do-people-think-he-can (citing U.S. Const. art. II, § 3), or with the Due Process Clauses of the Fifth and Fourteenth Amendments, Peter Brandon Bayer, The Due Process Bona Fides of Executive Self-Pardons and Blanket Pardons, 9 Faulkner L. Rev. 95, 157 (2017). See also Grant Tudor & Justin Florence, The Self-Pardon Question is Coming, Lawfare (June 12, 2024), >https://www.lawfaremedia.org/article/the-self-pardon-question-is-coming (laying out arguments against President’s authority to issue self-pardon).

10

Presidential or Legislative Pardon of the President,

1 Op. O.L.C. Supp. 370, 370 (1974)

. The OLC opinion did allude to a “different approach” to pardons that “could be taken” and that, according to the opinion, would potentially circumvent any constitutional limitation on self-pardons: the President could declare a temporary inability to perform the duties of his office pursuant to the Twenty-Fifth Amendment, after which the Vice President could, as Acting President, pardon the President and then allow him to resume his duties or resign.

Id. at 371

. Furthermore, President Nixon apparently received advice from other members of his legal team that a self-pardon would be available to him. Nida & Spiro, supra note 6, at 212–13.

11

See Tribe, Painter, & Eisen, supra note 9 (describing a “foundational case in the Anglo-American legal tradition” from 1610 in which it was held that a party “could not act as a court and a litigant in the same case” ).

12

See

Trump v. United States,

No. 23-939, slip op. at 7 (July 1, 2024)

(describing the President’s power to pardon in dicta as “conclusive and preclusive” ); Goldsmith, supra note 7 (noting that a prosecutor would have to try to prosecute a former President, the President would then have to raise the pardon in defense, and the courts would then have to decide whether they could review the action); Eckstein & Colby, supra note 7, at 103–04 (asserting that the Supreme Court might view the constitutional validity of a presidential pardon as a nonjusticiable political question and might “also find separation of powers concerns” based on the notion that the pardon power “was originally enacted to serve as a check against the judicial branch of government” ); but see Tudor & Florence, supra note 9 (arguing in the context of self-pardons that there are “ample procedural mechanisms that can put the legality of a pardon in front of” a court).

13

See, e.g., H.R.J. Res. 193, 118th Cong. § 2 (2024); H.R.J. Res. 77, 118th Cong. (2023); H.R.J. Res. 45, 117th Cong. (2021); H.R.J. Res. 13, 116th Cong. (2019); H.R.J. Res. 8, 116th Cong. (2019).