Constitutional expert: 'the Constitution does not expressly prohibit self-pardons'
This could be the most interesting situation in U.S. political history.
Cillizza: Finish this sentence: "The chances of a president being able to pardon himself are roughly ______%." Now, explain.
Kalt: Ha! I have been studying self-pardons and writing about them for over 20 years now (including in Chapter 2 of my book), and I have thoroughly convinced myself that any court faced with the issue should rule against self-pardons' validity. But "should" and "would" are two different things, and it is so hard to predict just what the Supreme Court would do that I can't say with any precision. I'll just say that I think it's less than 50%, but not close to 0%.
On the president's side is the fact that the Constitution does not expressly prohibit self-pardons.
The argument is a bit more complicated on the prosecution's side -- that's how it would get to court; the president would have to pardon himself and the prosecutor would have to prosecute him anyway, presumably after the president had left office.
First, as I said in my answer to [your first question], there are limits in the pardon power implicit in the notion of what a "pardon" is. So the prosecutor would say that a pardon is inherently bilateral -- something you can only give to someone else. "Pardon" comes from the same Latin root as "donate," and it doesn't make sense to speak of donating things to yourself.
Second, there is a venerable principle in the law that no one can be the judge in his own case. We would not permit a judge to preside over his own trial, for instance. So we would say here that if a president wants a pardon he has to get it from someone else, i.e., a successor.
Third, there are some historical arguments that support the idea that the framers of the Constitution assumed presidents could not pardon themselves. [link to www.cnn.com]