WASHINGTON — Experts on presidential pardons are split on whether they believe Rudy Giuliani was correct in saying that President Trump “probably” could pardon himself.
“I actually think he’s probably right,” Samuel Morison, a lawyer who formerly worked in the Justice Department’s Office of the Pardon Attorney, told The Post on Sunday.
Morison argued that the president’s power to pardon is “part of the system,” so the executive isn’t meddling in the criminal justice system when he issues a pardon.
“That’s part of the structure of the Constitution,” he said.
And while the president’s pardon power is “very broad,” there are other checks — including the fact that he can be impeached and that he can be voted out of office, Morison pointed out.
Trump critics have griped that if the president pardons associates like Paul Manafort or Michael Flynn, he’s doing it for his own self-interest.
But those kinds of pardons have been issued before.
As he was leaving office, President George H.W. Bush pardoned six individuals ensnared in the Iran-Contra scandal who had worked for former President Ronald Reagan when Bush was vice president.
“A lot of people criticized him because there were some suggesting that maybe he knew about Iran-Contra when he was vice president. He could have had his name dragged through the mud. It’s the exact same thing,” Morison said. “Trump’s just a little more brazen about it.”
Morison didn’t think there was anything in the Constitution that would prohibit Trump from pardoning himself.
“I’m not saying that it would be a good thing, I think it would be kind of crazy,” he said. “He might well get impeached if he did it.”
George Mason University public policy professor James Pfiffner, who’s written about the possibility of a president pardoning himself for the Heritage Foundation, told The Post it is “doubtful” that Trump could do so.
He pointed to two principles outlined in the Federalist Papers, considered to be companion materials to the US Constitution.
First, “no one is above the rule of law,” and second, “no man should be the judge in a case that affects him personally.”
“Any attempt by a president to pardon himself for crimes would create a constitutional crisis, and any such attempt would amount to an admission of guilt,” Pfiffner said.
Michigan State law professor Brian Kalt — who has been writing about presidential self-pardons since the 1990s — said for years “nobody cared about the legal arguments I presented because they thought the whole question was absurd.”
Now Kalt thinks people are eschewing the legal arguments because most people only care if Trump wins or loses.
“The bottom line is that there is no valid answer to the question, ‘Can Trump pardon himself?’ other than, ‘He could try,’” the professor told The Post.
Unless Trump pulls the trigger, he said, experts are only speculating what the courts would do to interpret presidential pardoning power.
“For every person who confidently asserts that he can do it, there is another person asserting just as confidently that he can’t,” Kalt said. “Without a real case, both of those people are wrong.”