As Donald Trump prepares to leave the presidency Jan. 20 in the wake of being accused of fomenting the riot at the U.S. Capitol, he is reportedly considering an unprecedented move: a self-pardon.
While no president has ever pardoned himself, the act might be more trouble than it’s worth for Trump, notes a criminal law and Supreme Court expert at Washington University in St. Louis.
“Oddly enough, pardoning himself might make President Trump more likely to be prosecuted,” said Daniel Epps, associate professor of law.
“The act would be seen as sufficiently troubling that the next administration and its prosecutors might determine that prosecution is necessary in order to establish the principle that self-pardons are not permissible.”
A 1974 Justice Department legal memo stipulates that the president cannot pardon himself, but this has never been tested. No president has attempted a self-pardon.
The memo states: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”
“My view is that though it’s no sure thing, there’s a lot of reason to expect courts to conclude that a self-pardon would be impermissible,” Epps said. “Especially given that self-pardons are deeply inconsistent with basic principles in the Anglo-American legal system, such as the notion that no person is supposed to be the judge in his or her own case.”