The report that Special Counsel Jack Smith plans to keep prosecuting President Trump even if he wins the election,  through the eleven week window between Election Day and the inauguration, surfaces a yet to be tested constitutionally possibility — that Trump could resolve matters by pardoning himself as soon as he formally wields the imperium.

A president has never directed the pardon power at his own person, but circumstances are conspiring to surface that as a possibility. Polls have President Trump ahead in a tight race with President Biden amid growing turmoil over the 46th president’s fitness. The Supreme Court’s immunity ruling remands back to Judge Tanya Chutkan the task of discerning which alleged acts are official and make the 45th president immune. 

That litigation could stretch for months, if not longer. The Washington Post now reports that “Justice Department officials plan to pursue the criminal cases against Donald Trump past Election Day even if he wins.” DOJ regulations prohibit prosecuting a sitting president, though they are silent on a president-elect who has not taken the oath of office. 

Once Trump were sworn in as the 47th president, he would likely instruct his attorney general to fire Mr. Smith and dismiss the charges the special counsel handed up. The regulations that govern special counsels mandate that the “attorney general may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” 

Trump has made his views on Mr. Smith clear by repeatedly calling him “deranged.” Yet in view of the Supreme Court’s immunity ruling — a constitutional finding in favor of President Trump and a rebuff of Mr. Smith — one could just as easily say that Trump has a clearer view of the constitutional issue than the prosecutor leading the case against him.

If Mr. Smith can secure a conviction before Trump is inaugurated, his eventual termination would be after the fact and besides the point. The only path forward for President Trump to rid himself of a guilty verdict would be to turn to the Constitution, which ordains that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

Even if Mr. Smith has not yet secured a conviction, Trump may want to pardon himself from the offenses anyway, to innoculate himself from a future prosecution after he leaves office again. Historically, presidential pardons have sometimes been for crimes that have been charged but have yet to yield a conviction. President Ford’s pardon to his predecessor granted a “full, free, and absolute pardon unto Richard Nixon for all offenses against the United States.” None, at the time, had been formally charged.

The pardon power does not avail against state criminal charges like the ones handed up by District Attorneys Alvin Bragg and Fani Willis, though those prosecutions face their own challenges in the wake of Trump v. United States’s ruling on immunity. In 74 Federalist, Alexander Hamilton wrote that “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.”

While the Framers did not formally address the possibility of a president pardoning himself, they did fret over whether the pardon power was too broad. The governor of Virginia, Edmund Randolph, wondered if the power to pardon wasn’t “too great a trust,” especially when it came to “cases of treason.” The Congress decided that impeachment was a strong enough deterrent.  

Hamilton acknowledged arguments that in cases of treason it should be the legislature, not the president, who should dispense pardons. The framers, Hamilton pointed out, concluded that “a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body.” 

Hamilton took this position even as he allowed that the president might be involved in treason (as the Framers had been against George III). Hamilton wrote, “the connivance of the Chief Magistrate ought not to be entirely excluded.” Nevertheless, he contends that  “in seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.”

Would January 6 and surrounding events be such a season? The justices did not appear to consider it that way during oral arguments in the immunity case. Justice Neil Gorsuch asked Trump’s advocate, John Sauer, if his narrow understanding of immunity would create an incentive for “presidents to try to pardon themselves.” Mr. Sauer stammered that he “didn’t think of that until Your Honor asked it.”

Justice Gorsuch reflected that “Happily, the constitutionality of self-pardons” has “never been presented to us.” It could yet arise, though, if Mr. Smith can convict Trump on private acts, or can bear his burden in showing that official acts are undeserving of immunity. Mr. Sauer acknowledges that  the legality of a self-pardon “is something that’s never been addressed.”

The high court in Trump v. United States found that the pardon power is a paradigmatic example of an area of presidential purview that is “conclusive and exclusive,” and therefore entitled to “absolute immunity.” A law professor, Frank Bowman, tells the Sun that this means a president could “set up a pardon sale stand” on the front lawn of the White House and evade criminal liability. 

Justice Gorsuch’s predecessors held in 1886 that the pardon power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” This means that it can be exercised after the acts in question are committed but before a verdict is brought in. 

Mr. Bowman is skeptical. He took to the legal blog Just Security to opine that “throughout Anglo-American history from Magna Carta to the time of the Philadelphia Constitutional Convention, a pardon in law always involved two parties.” Mr. Bowman adds that he has been unable to “discover a single instance in which a king, royal governor, or any similar official purported to pardon himself.”

The jurist William Blackstone, whom the Supreme Court has called  “the preeminent authority on English law” for the Founders, writes that “The king himself condemns no man; that rugged task he leaves to his courts of justice: The great operation of his scepter is mercy.” An analysis carried out in 1974 by President Nixon’s Department of Justice came out against self-pardons because of the “the fundamental rule that no one may be a judge in his own case.”  

In 2018, Trump tweeted in respect of the Russiagate investigation that “as has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” 74 Federalist suggests that the Framers were aware of the prospect that a president might have done something wrong and gave him, and only him, the pardon power nonetheless.