Former President Donald Trump could have the power to pardon himself from federal charges if he is reelected, legal analysts say, thanks to the Supreme Court’s ruling last week on presidential immunity.
The unprecedented 43-page opinion handed down July 1 bolstered executive powers and divided the justices 6-3 along ideological lines. The majority ruled that the president has absolute immunity from prosecution for “official acts” as chief executive.
Though the court’s decision did not directly address the issue of self-pardons, legal experts said the opinion’s wording would provide legal cover for the scandal-plagued former president.
“The self-pardoning issue is the least of the doors which have been opened,” said Jeffrey Swartz, a professor at Cooley Law School. Mr. Swartz said he saw the unmistakable influence of conservative Justice Samuel A. Alito Jr. in the opinion written by Chief Justice John G. Roberts Jr.
“The entire opinion credited to Roberts sounds more like editing from Alito,” Mr. Swartz said.
“As the court has often done, they left significant gray areas in the decision and the self-pardon is one aspect of this,” said Adam Feldman, a Supreme Court scholar and creator of the “Empirical SCOTUS” blog. “It speaks to the court leaving an area open.”
Chief Justice Roberts wrote in the majority opinion that Article II of the Constitution gives the president the power to issue pardons.
He said the pardon authority is absolute and recalled that the Supreme Court rebuffed Congress’ efforts to prevent President Lincoln’s pardon for anyone who participated in the Civil War rebellion and protected the property rights of those who later pledged allegiance to the Union.
“The exclusive constitutional authority of the President ‘disabl[es] the Congress from acting upon the subject,’” the Chief Justice wrote. “And the courts have ‘no power to control [the President’s] discretion’ when he acts pursuant to the powers invested exclusively in him by the Constitution.”
Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote a scathing dissent saying the history surrounding President Ford’s pardon of former President Richard Nixon after the Watergate scandal suggests a president does not have immunity from prosecution.
“Both Ford’s pardon and Nixon’s acceptance of the pardon necessarily ‘rested on the understanding that the former President faced potential criminal liability,’” she wrote.
She also suggested that the pardon power should not be given broad protection.
“The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune.
“Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune,” she wrote.
Michael Moreland, a law professor at Villanova University, said the immunity ruling suggests that a president could not be prosecuted for pardoning himself. He said the immunity decision did not squarely address the legality of a self-pardon, which has yet to come before the justices.
“It opens the door to the extent that it confirms a strong view of the presidential authority,” he said. “In the end, if a president did attempt to self-pardon, it would end up before the Supreme Court.”
Presidents have the power to issue pardons for federal crimes.
Mr. Trump is facing federal charges in the District of Columbia related to his contesting of the 2020 election results and in the Southern District of Florida related to his handling of classified documents at his Mar-a-Lago estate.
The immunity decision is expected to delay any federal trials for the former president until after Election Day in November.
U.S. District Judge Tanya Chutkan for the District of Columbia must decide whether any of the four charges in special counsel Jack Smith’s indictment can survive scrutiny under the court’s new standard. A decision would likely result in a new round of appeals.
The official acts standard also raises hurdles for U.S. District Judge Aileen Cannon, who is overseeing Mr. Trump’s case in the Southern District of Florida, and Georgia, where Mr. Trump is accused of trying to subvert state electors.
The charges related to Mr. Trump’s contesting of the 2020 election in Georgia have already been delayed as an appeals court reviews conflict of interest claims against Fulton County District Attorney Fani Willis for her romantic relationship with the special counsel prosecuting the former president.
Citing the Supreme Court’s decision, Mr. Trump’s legal team won a delay in sentencing after his New York conviction for falsifying business records as he paid hush money to adult film actress Stormy Daniels.
Mr. Trump’s attorneys argued that the jury heard evidence about Mr. Trump’s time in office that the Supreme Court ruling could affect as yielding presumptive immunity.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
Please read our comment policy before commenting.