This is a recurring question in constitutional law that has never been answered by the courts. If Donald Trump wins reelection and is convicted in federal court, the occasion for such a self pardon may present itself. But perhaps Trump could accomplish the same result by an alternative route.
The 25th Amendment provides: "Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President."
This provision has been used in the past when the President undergoes an operation that will incapacitate him for a short period.
To avoid the need for a self pardon, Trump could undergo a medical procedure that required him to be incapacitated for a short period. Then, during this period, the Vice President — acting as President — could pardon the President. This might avoid the issues involving a self pardon. After all, the President would not be pardoning himself.
One might wonder whether the Acting President could really do this. But it is not clear why he could not. If the Acting President were to pardon someone else during the period of his service as the President, it would appear that the pardon would be valid.
To argue against this, one would need to develop a theory that says the Acting President has only limited powers, but that seems unjustified and problematic. If the President were to order the Vice President to pardon him when the VP was serving as Acting President, one might argue that the Acting President was really just engaged in a scheme to self pardon the President. But in my view, the Acting President would not be obligated to follow the orders of the President during his service as Acting President and therefore the order would not be binding. Thus, the ineffective order would not be a constitutional problem. But to keep the issues neat, the better practice would be for the President not to give such an order to the VP.
Another complication is raised by the possibility that the President's medical procedure was not a real one or was just undertaken for the purpose of the self pardon. That might more plausibly lead to its invalidation. Thus, it would be cleanest if the President actually needed the medical procedure.
While the medical procedure reason for the President's incapacity has some precedent, another possibility is that the President would be in federal prison. If such prison service would prevent the President from discharging his duties, the President might transmit his powers to the VP and then receive the pardon.
We live in strange times.
Posted at 8:00 AM