A few days ago, the Washington Post broke a story that Trump and his legal team were looking into pardons, including Trump’s family members and even himself. According to Article 2, Section 2 of the U.S. Constitution —
“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 Offenses against the United States, except in Cases of Impeachment.”
The constitution is quite clear. The president has the authority to pardon anyone for offenses against the United States (read: federal crimes). But, the question about whether or not he can pardon himself is up for debate. That’s the “except in Cases of Impeachment” part.
Most legal experts, including Justice Department lawyers in 1975, agree that the President cannot pardon himself. According to a Justice Department memorandum written during the Ford administration, “Under the fundamental rule that no one may be a judge in his own case, the President may not pardon himself.” Obviously, this hasn’t been tested. Nor did the framers consider this particular example.
Let’s assume that Trump does pardon everyone around him for any potential crimes. While this may kill Bob Mueller’s investigation into any connections to Russia, it may bolster his case that Trump continues to obstruct justice. Obstruction of justice is anything that impedes a current investigation – something that Trump may have done when he fired Jim Comey. Pardoning family members to prevent Mueller from further looking into them may be a textbook example of obstruction of justice as well.
Even if Mueller has a solid case against Trump, either for obstruction or collusion, it’s hard to indict a sitting president. According to the New York Times, the Justice Department, in 1973, concluded that “structural principles” shield a president from immunity. They said that “the stigma of being indicted” would interfere with the duties of the executive branch and prevent it “from accomplishing its constitutional functions”. Kenneth Starr, the special counsel who investigated Bill Clinton, looked into this much more extensively. His office concluded that presidents can, in fact, be impeached — “…if he cannot be prosecuted for violating criminal laws, he will be above the law.” Recall that one of the main criticisms of the founders was that Kings were effectively above the law with nearly unlimited power. Starr’s office circumvented the “structural principles” objection by pointing to the 25h amendment, which formally established a line of succession for the presidency. The executive branch can continue to function even if the president is indicted; the vice president will takeover.
It’s hard to tell where Mueller and Trump, especially Trump, will go next. Needless to say, this has not happened before. If Trump pardons everyone for “the Russia thing”, whether or not he includes himself, there will certainly be a political, legal, and constitutional firestorm.