News - Capital University Law School

Professor Kobil Checks in on Whether the President Can Pardon Himself

12/7/2020  - 

Professor Dan Kobil, a nationally-recognized expert on executive clemency, had been prominently in the news recently, as the media reports on whether President Trump can pardon himself.

It’s often one of the last powers lame-duck presidents wield when exiting the Oval Office: the presidential pardon authority.

Following his defeat in the November election, President Donald Trump pardoned Michael Flynn, his former national security adviser, who pleaded guilty to lying to the FBI during the Russian investigation led by Special Counsel Robert Mueller. And now the big questions are will the President pardon himself and is it legal for him to do so?

The President tweeted in 2018 that he has the right to grant himself a pardon, but not everyone is so sure. Politifact, the fact-checking website of the Poynter Institute, asked legal experts, including Prof. Kobil, for their opinions on the matter.

With no consensus among those who study the Constitution, it’s an issue that ultimately could be decided by the U.S. Supreme Court should President Trump elect to exercise that option. “You never know until you have the temerity to try,” Professor Kobil told Politifact. “Even Richard Nixon didn’t have the temerity to try it.”

Instead, Nixon’s former Vice President Gerald Ford pardoned him for the Watergate crimes after Ford assumed the presidency. 

Kobil discussed presidential pardons on Boston’s WBUR radio in an interview with Peter O’Dowd on the nationally syndicated NPR program, Here & Now, where he was asked about a conversation Kobil had with former President Ford regarding the Nixon pardon.

“President Ford told me that he felt he had to do it in order for the country to get on with the very difficult issues that he faced coming in as President,” Kobil said. “There were a lot of economic issues, security issues that he wanted to deal with, and he felt that obsession with Richard Nixon would prevent that.”

Ford told him that it was important that the Supreme Court had said acceptance of a pardon is an admittance of guilt in order to rebut opinions that Nixon had gotten off scot-free.

O’Dowd noted that President Trump has not been charged with a federal crime and asked Kobil for his thoughts on whether President Trump could grant himself a pre-emptive pardon.

“As a legal matter,” Professor Kobil said, “we do not know for certain whether a self-pardon would be permitted.”

Kobil said he is, however, “expecting a floodgate of pardons for every crony and family member that may have committed a crime in the past four year” before the President leaves office in January.

To listen to the WBUR program, click here.