When The Donald Tries to Pardon Himself, Would The Supreme Court Uphold or Not
Trump is in a real predicament regarding the possibility of a self-pardon.
The scenario would play out like this. Trump would issue a pre-emptive self-pardon. (A pre-emptive pardon is like the pardon granted by Ford to Nixon, for anything he may have done while president). While this will be a big story in the press, the courts will remain silent on the issue. The federal courts, including the Supreme Court, will not issue advisory opinions. They have to wait until a real case, presenting an actual case or controversy, comes to them. Trump can’t call up the Supreme Court and ask them how they would rule. The pardon won’t be a legal issue until Trump is actually indicted for a federal offense. Because of the DOJ policy of not indicting a sitting president, that won’t happen until after Trump is out of office.
Once indicted, Trump will raise the pardon as a defense. Now there’s an actual case. The validity of the pardon will be ruled on by the trial court and, regardless of the ruling, the matter will be appealed until it reaches the U.S. Supreme Court.
The consensus of most Constitutional Law scholars is that a president cannot self-pardon. It is contrary to the long held maxim that no man can be a judge in his own case - a principle that pre-dates the U.S. Constitution and has been referred to by the Supreme Court In prior cases, albeit never in regards to the presidency. A president who could self-pardon would still remain subject to impeachment, but if the Congress were unable or unwilling to impeach (remember, it takes 2/3 of the Senate to convict and remove), the power to self-pardon would render much of the Constitution meaningless. A president could routinely ignore the Constitution and just continually self-pardon themselves. And, upholding the power to self-pardon would not just be a Trump issue. It would extend to all future presidents, regardless of political party or ideology. It would fundamentally change the way the U.S. is governed - in a way clearly not intended by the founding fathers who sought to limit presidential authority.
So, by the time the validity of a Trump self-pardon could reach the Supreme Court, Trump would no longer be president. If the Court disagreed with him, as appears likely, he would be beyond the point where he could resign and receive a pre-emptive pardon from Pence. He would be totally without the protection of a presidential pardon.
He could do both. He could self-pardon and then resign before January 20th and receive a pardon from Pence. The pardon from Pence (assuming he went along) would unquestionably be valid, and it would render the self-pardon moot as far as judicial review is concerned.
So a self-pardon by Trump is a huge gamble, placing all his eggs in one basket. If, once he’s out of office, the Court upholds the power, he’s safe from federal prosecution. But if they don’t, it will be too late to resign and receive a pardon from Pence.
EDIT 12/23/2020: Upon further thought, I should point out that a pre-emptive pardon is not without Constitutional doubt. It’s only really been done twice. Gerald Ford pre-emptively pardoned Richard Nixon, and George H.W. Bush pre-emptively pardoned former Defense Secretary Caspar Weinberger. (It could also be argued, if you read the pardon’s specific wording, that Trump’s pardon of Michael Flynn also amounts to a pre-emptive pardon.) However, neither of these pardons were ever challenged in court (see above). Neither Nixon nor Weinberger were indicted for federal crimes after their pardons were issued so the validity of their pardons was never ruled upon. It could be that the Supreme Court, particularly a Court comprised of strict constructionists, would conclude that a pre-emptive pardon is not a valid exercise of the power.
PS: Keep in mind that Federal Pardons are for Federal Crimes and NY is hevely investigating Trump on many fronts.
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