“Is it possible for Donald Trump 1) to pardon himself or 2) to engage in a tactic such as stepping down from the presidency before the end of his term and have the vice president pardon him as his first official act as the new president?” – Kristina Maloney

Hi Kristina,

The answers to your questions are “maybe” and “yes,” respectively. I’ll explain each below. The bottom line is that it’s hard to see Trump being prosecuted again.

Self-pardon

Whether presidents can pardon themselves is an open question.

Before Richard Nixon resigned from the presidency for the Watergate scandal in 1974, the Justice Department opined that presidents can’t pardon themselves.

“Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative,” the memorandum opinion from the department’s Office of Legal Counsel said.

But while that legal office is authoritative within the executive branch, its opinions aren’t binding on the courts. The self-pardon issue hasn’t been tested in court because no president has tried it.

Of course, there’s nothing to stop Trump from signing a piece of paper that says he is pardoned for any federal crimes he may have committed up to that point. (Presidential pardons apply to federal, not state, offenses, and they cover crimes committed already; they aren’t lifetime get-out-of-jail-free cards.)

But the question is how the unprecedented pardon could be tested. DOJ policy bars the prosecution of sitting presidents, and federal prosecutors under Trump wouldn’t charge him for anything, anyway.

A test could materialize if a future DOJ charges him after he leaves office in 2029. He would raise the pardon in a pretrial motion to dismiss. That would force the courts to confront its validity.

Yet on top of the important practical question of whether a future DOJ would charge Trump (who will be 82 when he leaves office), another obviously crucial question is what charges could he face?

Whatever the possibilities are by 2029, prosecutors could at least be severely hobbled by the Supreme Court’s 2024 presidential immunity ruling in Trump v. United States.

The limits of that ruling have not been defined, so it is possible that he could commit crimes while in office that can be prosecuted after he leaves. But there would be lengthy pretrial litigation on that question before any case could move forward. A prosecutor who considers charging the former president in this scenario would thus confront the dual obstacles of immunity and the pardon (on top of whatever other thorny considerations arise in this hypothetical situation).

Therefore, if Trump attempts an unprecedented self-pardon, it is entirely possible that we never get an answer from the courts about its validity.

Resignation followed by pardon from the new president

A simpler option — from a legal standpoint — is that Trump resigns, Vice President JD Vance becomes president and pardons him.

Unlike self-pardons, there is clear authority and historical precedent here: Nixon. He resigned, Vice President Gerald Ford became president and pardoned him before he was even charged with any crime.

As it happens, the Trump administration is now investigating whether Nixon got a raw deal. Regardless of what that probe yields, Trump is free to resign and Vance is free to pardon him afterward.

This scenario will probably become more hotly discussed in the waning days of Trump’s second term if a Democrat wins the 2028 election. But if the White House stays in Republican hands, then it would seem to be less of a pressing matter. Assuming that such control would continue a governmental priority of protecting Trump, he wouldn’t be at risk of prosecution by a GOP-controlled DOJ; that would also help him run the clock on statutes of limitation.

Further cementing the unlikelihood of another Trump prosecution, if Vance (or whoever is the next GOP nominee) wins in 2028 and then a Democrat wins in 2032, the outgoing Republican president could pardon Trump before they leave office. That would cover him for anything prosecutable up to that point, including any post-presidency conduct.

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