The possibility of President Trump issuing a self-pardon has been under discussion since the beginning of his presidency. In the wake of the riots at the Capitol on January 6, 2021, that possibility once again flirts with becoming a reality.

Any discussion of the president’s power to pardon has to begin with the Pardon Clause in the U.S. Constitution, Article II, section 2, which states that the president “shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”

That clause places two limitations on the executive’s powers of clemency: a president can only issue pardons for federal crimes, and the president cannot undo the impeachment of a government official. Those two are the only explicit limitations on the president’s power to dispense “reprieves and pardons.” From that one might infer that the power exists with no other limitations beyond the two mentioned, and that, therefore, a president can pardon himself.

The matter is not quite so simple, however. Nor is the question new. It was first floated in the wake of the Watergate scandal, as Richard Nixon’s role in the cover-up of that event became increasingly evident. On August 5, 1974, three days before Nixon resigned the presidency, a memorandum opinion on the subject of a self-pardon was drafted by Acting Assistant Attorney General Mary Lawton. Lawton’s conclusion was the opposite of what the text seems to imply: that a president cannot pardon himself. Lawton based her view largely on one tenet of law: “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”

Running to only three pages, Lawton’s memorandum is hardly exhaustive. A much fuller treatment of the subject is to be found in an article for the Yale Law Journal in 1996 by Brian Kalt. Kalt begins his analysis by looking at the origins of the presidential power to pardon in the power of English monarchs to do the same. The problem going forward from that launching point is that a king, being above the law, never needs to pardon himself, thus there is no common-law precedent that can be applied to the far more constrained powers of the president of the United States.

One of the ways of analyzing the Constitution is to attempt to discern the Framers’ intentions when they penned that tersely worded document. Here Kalt comes to the conclusion that:

Ultimately, one can only speculate as to what the Framers thought about the self-pardon. Given the course of their debate, however, it is reasonable to conclude that they believed the power to be invalid, or at least that they did not think about it.

Looking at the plain wording of the text and the analysis of its simple meaning put forward above, Kalt states that the problem with the "simple" reading is that it places too much reliance on the suspect maxim of expressio unius…merely adding an exception immediately after a grant of power should not always be read as making the remainder of the power unlimited.

Kalt also goes into the question of “self-dealing,” the key argument in Lawton’s memorandum. To explain the concept, he gives the example of the way in which government officials are kept from acting as decisionmakers in matters that directly…affect them. This disfavor for self-dealing in the structure of the government, explicitly recognized by the Framers themselves, provides important structural support for the claim that a President is forbidden from pardoning himself.

In a now extremely topical vein, Kalt observes that:

A presidential self-pardon…would only be plunder to take home after a career-ending disgrace, even if an impeachment and conviction have stripped the President of all of the other badges and incidents of his former station. It thus seems a curious power to bestow...Self-pardons thus clash with the constitutional structure of the limited presidency

That brings him to conclude that:

The purported power of a President to pardon himself would be constitutionally anomalous and unprecedented in the constitutional structure. Such a power simply does not fit with the rest of the structure of the government established by the Constitution.

Kalt’s thoughtful analysis regrettably leaves unanswered the question of how such a pardon might play out today.

The chief argument that has been raised with regard to a Trump self-pardon is that it might do the President more harm than good. It would create a definite perception of guilt, tarnish the Trump presidency’s legacy, and probably dispense with what little political capital still remains to the President. A self-pardon might shield him from prosecution, but it would also be a public relations nightmare that could put an end to his hopes of running again in 2024.

Moreover, a presidential self-pardon would only free the President from federal prosecution. He might still be brought up on charges in, for example, New York, where 2019 legislation was enacted for precisely the purpose of thwarting Trump pardons by leaving pardonees open to prosecution at the state level. Thus a self-pardon might set off a flood of investigations that could prove anything from embarrassing to disastrous for the ex-President.

There is also the question of whether a self-pardon would even work. If the President were to attempt it, he would be taking his chances with the Supreme Court, and one cannot predict that a conservative majority Court would find in favor of a president’s right to self-pardon. Indeed, Trump’s track record with the Supreme Court hasn’t been stellar. The hue and cry that would result from a self-pardon might come to naught if the pardon isn’t upheld when challenged, which it is sure to be.

The president would doubtless do better taking his chances in the Senate, where time is on his side and Democrats don’t hold the two-thirds majority necessary for a conviction. Moreover, the question of whether the Senate can hold an impeachment trial after the president has left office is terra incognita.

So, however, is the question of a presidential self-pardon.