Former President Donald Trump could have the power to pardon himself from federal charges should he get 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, with the majority ruling 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 Jeff Swartz, a professor at Cooley Law School. Mr. Swartz said he saw the unmistakable influence of conservative Justice Samuel Alito 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 explained that the pardon authority is absolute and that the Supreme Court rebuffed Congress’ efforts to put a check on a pardon issued by the late President Lincoln for anyone who participated in the rebellion but later pledged allegiance to the Union, protecting their property rights.
“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, meanwhile, authored a scathing dissent that was joined by Justices Elena Kagan and Ketanji Brown Jackson that said history surrounding the pardon of the late President Nixon following the Watergate scandal suggests a president does not enjoy immunity from prosecutions.
“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 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.
Mike Moreland, a law professor at Villanova University, said the immunity ruling suggests if a president were to pardon himself, he couldn’t be prosecuted for it. 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 added. “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 currently facing federal charges related to his contest of the 2020 election results in Washington and for allegedly mishandling classified documents at Mar a Lago in a legal battle pending in the Southern District of Florida.
The immunity decision is expected to delay the former president from facing trial in any of the federal disputes ahead of November.
Special Counsel Jack Smith’s prosecutions in both Washington and Florida will now face hearings at the district court in Washington, where Judge Tanya Chutkan must decide whether any of the four charges in the indictment can survive scrutiny under the court’s new standard.
That decision would then likely face a new round of appeals, making it unthinkable that a trial could be held before Election Day in November.
Judges overseeing other criminal cases facing Mr. Trump also will have to grapple with the court’s new official acts standard.
That includes U.S. District Judge Aileen Cannon, in charge of Mr. Trump’s case in the Southern District of Florida, where the former president is accused of mishandling classified documents. The standard will come into play in Georgia as well, where Mr. Trump stands accused of trying to subvert that state’s electors.
The Trump charges related to contesting the 2020 election in Georgia are also delayed as an appeals court reviews conflict of interest claims against the Fulton County District Attorney Fani Willis for her romantic relationship with the special counsel prosecuting the former president.
The former president’s legal team was also able to win a delay in his sentencing in New York over his conviction for paying hush money to porn actress Stormy Daniels, citing the Supreme Court’s decision.
Mr. Trump’s lawyers argued that the jury heard evidence related to Mr. Trump’s time in office that the Supreme Court ruling could impact as yielding presumptive immunity.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.