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Can Trump Pardon Himself?

AUDIE CORNISH, HOST:

With pressure mounting on President Trump, there's a new focus on a question that has come up since Day 1 of the Trump administration. Can he pardon himself? NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Even before he was elected, Donald Trump had a grandiose view of his ability to defy political gravity.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT DONALD TRUMP: I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK? It's, like, incredible.

(LAUGHTER)

TOTENBERG: His lawyers would later argue that same kind of legal immunity in court. And from the early days of his time in office, the power he appeared to relish most was the pardon power. It's near absolute. He need not consult with anyone. And early on, as the Russia probe began to unfold, Trump was asking aides whether he could pardon himself. It's a question he reportedly has returned to in recent weeks.

The president does indeed have broad but not completely unlimited pardoning power. The Constitution gives him the power to pardon others for federal crimes. But he can't pardon himself from impeachment, and he has no authority to pardon for crimes committed under state law. Finally, most, though not all constitutional law scholars believe he cannot pardon himself.

Michigan State University law professor Brian Kalt has written extensively about the pardon power. While some scholars argue that that power is absolute, he says that...

BRIAN KALT: Allowing self-pardons would violate that principle that no one can be the judge in their own case.

TOTENBERG: Indeed, that was the formal legal opinion rendered by the Justice Department in 1974 during the Nixon presidency. But President Trump has openly enjoyed violating long-established norms, and pardons have been no exception. Harvard Law Professor Jack Goldsmith has examined all of Trump's pardons and sentence commutations.

JACK GOLDSMITH: We determined that at least 85 of the 94 have some personal or political connection to Trump and were self-serving in that way.

TOTENBERG: Goldsmith, who served as head of the Office of Legal Counsel in the George W. Bush Justice Department, observes that party controversies are hardly unique. What's new is the massive extent to which Trump has circumvented the Justice Department office charged with processing pardon applications.

GOLDSMITH: Trump loves to exercise the hard powers of the office of the presidency, and he especially loves to do so if he thinks there's something in it for him personally and if he thinks it will make the political elites' heads explode.

TOTENBERG: Until now, no president has pardoned himself. Nixon contemplated it, but faced with his own Justice Department's legal opinion that it would be unconstitutional, he didn't do it. Now, though, there's concern about creating such a precedent. Kenneth Gormley is president of Duquesne University in Pittsburgh and author of a book about presidential powers.

KENNETH GORMLEY: If you play this out, a president before leaving the White House could, for instance, sell the greatest state secrets, the nuclear codes for a billion dollars and then pardon himself on the way out the door.

TOTENBERG: And Jack Goldsmith notes that the incoming Biden administration is already facing a lot of pressure to prosecute Trump for some of the things he's done.

GOLDSMITH: I believe that if Trump pardons himself, it's going to make it more likely that they will go forward - the Justice Department of the Biden administration. They're not going to want to acquiesce in what they think is an unconstitutional assertion of the pardon power.

TOTENBERG: Duquesne's Gormley agrees.

GORMLEY: President Joe Biden will be keeper of the executive branch under the Constitution when he takes that oath of office on January 20. He cannot just sit passively by. He at least needs to plant a flag in the ground and say this is not permissible.

TOTENBERG: Otherwise, another norm of American history will be broken. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

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