Thursday night, the Washington Post reported that President Donald Trump “has asked his advisers about his power to pardon aides, family members and even himself in connection” with special counsel Robert Mueller’s investigation into the Trump campaign’s connections to Russia. If he does so, he is playing with fire.
No one actually knows if Trump can pardon himself, as previous presidents typically avoided criminal activity — and those that did break the law did not use their official powers in such a transparently self-serving way. Though the president’s power to pardon other people is nearly limitless, many legal scholars believe that a president cannot issue a self-pardon for much the same reason that a judge cannot sit on their own case.
But there’s also a very real danger to Trump if he starts doling out pardons to his inner circle. As Keith Harper, an attorney and former Ambassador to the United Nations Human Rights Council under President Obama, first pointed out on Twitter, a pardon would protect Trump’s confidants from prosecution for past acts— but it could also strip them of their Fifth Amendment right to refuse to give self-incriminating testimony.
The Fifth Amendment provides that no one “shall be compelled in any criminal case to be a witness against himself,” but that assumes that such a criminal case could actually arise against the individual. If Trump pardons a family member or close aide, that individual no longer can be prosecuted in federal court for matters falling within the scope of the pardon — and thus could potentially be compelled to testify on matters that could implicate Trump himself or other top officials.
The president does not have the power to issue a pardon against state offenses, so the recipient of a Trump pardon might still be able to avoid testifying if they were potentially subject to state criminal charges.
It’s also worth noting that a president can pardon past conduct, but someone who receives a pardon can still be prosecuted for future crimes. Thus, Harper notes, if the recipient of a Trump pardon lies under oath “any future perjury is not covered by past pardon.”