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By Kevin Daley
President Donald Trump’s legal team is reportedly exploring the scope of the president’s constitutional pardon powers, as special counsel Robert Mueller’s probe has reportedly expanded to include Trump’s personal finances.
The Washington Post, citing two unnamed individuals familiar with internal discussions, reports that the president’s lawyers are currently engaged in “theoretical” discussions as to the reach of the pardon power — including whether Trump can pardon himself.
Jay Sekulow, one of the president’s attorneys, denied that pardons were being discussed to CBS’ Major Garrett.
— Major Garrett (@MajorCBS) July 21, 2017
The president’s pardon power is granted by Article II section 2 of the Constitution. It provides that “The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
As such, pardons can only be granted for federal crimes. They do not apply against state or civil prosecutions, nor can they end an impeachment proceeding.
The Justice Department’s Office of Legal Counsel (OLC), which advises the president on the scope of executive power, concluded the president could not pardon himself in a memorandum during the Nixon administration. OLC explained at the time that pardoning oneself would violate a common law rule that prohibits individuals from acting as judges in their own cases.
The memo does raise a rather unusual proposition for resolving the pardon problem. It suggests that a sitting president could invoke the 25th Amendment and temporarily cede his powers to the vice president. The acting president could then pardon the president, who would resume his duties shortly thereafter.