Can Donald Trump pardon himself?

Donald Trump has been indicted three times this year, twice at the federal level.

In April, he was arraigned in New York and pleaded not guilty after receiving an indictment against him from Manhattan District Attorney Alvin Bragg alleging he tampered with his business records to conceal hush money payments he made 2016 to porn actress Stormy Daniels to stop her over an extramarital affair they allegedly had in 2006, just in time to scuttle his presidential candidacy.

Justice Department special counsel Jack Smith then filed federal indictments on him in May for his alleged misuse of classified government documents after the end of his first term as president and another in August for his efforts to overturn the 2020 election result, charging him with conspiracy Fraud against the United States, manipulation of a witness and conspiracy against citizens' rights.

In both cases, Mr. Trump again pleaded not guilty to all charges.

But that's not all. He may face a fourth indictment, this time from Fulton County, Georgia District Attorney Fani Willis over his attempts to sway the 2020 vote count in that crucial swing state, which turned blue for Joe Biden and prompted Mr Trump to seat the local one Pressured Secretary of State Brad Raffensperger to help him “find” the 11,780 ballots he needed to win, a conversation recorded and described by a veteran as “worse than Watergate.” Washington Post Journalist Carl Bernstein.

Although Ms. Willis has not confirmed any charges will be filed this week, her previous testimonies and security measures around the Fulton County Courthouse indicate imminent movement in the case is imminent.

No past or incumbent President of the United States has ever been formally charged with a crime before, so the fact that multiple indictments have been filed against Mr Trump is already history, another nefarious claim to fame for the first ever American commander in chief to have been indicted twice.

The prospect of Mr Trump winning the presidency again in November 2024 and then attempting to use his presidential pardon powers to apologize is an intriguing prospect that could yet become a reality.

As president between 2017 and 2021, Mr Trump happily used his executive clemency powers to pardon no fewer than 237 people, from Arizona Sheriff Joe Arpaio to far-right content creator Dinesh D'Souza and cronies like Steve Bannon and Roger Stone to Michael Flynn , Paul Manafort and George Papadopoulos.

Whether he had the authority to pardon himself was a key question when he left office after the deadly Jan. 6, 2021 Capitol riot, which ultimately never needed to be answered because he made no attempt to do so.

The broad consensus among legal experts at the time was that there was no provision that would actually prohibit such an act, but since there was no precedent for it either, it would likely be the subject of a lawsuit challenging its legal validity.

Although Mr. Trump is now a private citizen and therefore lacks such powers, he is in the extraordinary position of being impeached three times while assuming leadership in the Republican Party's 2024 presidential nomination, leaving him behind such rivals eats his dust in the polls as Ron DeSantis, Mike Pence, Nikki Haley, Tim Scott and Chris Christie.

There is nothing in the U.S. Constitution to prevent anyone from running a presidential campaign while charged or even convicted of a felony, although the 14th Amendment bars anyone from running for office who takes an oath of office and abides thereafter involved in an “insurgency or” “riot” against the country, which could ultimately cause problems for Mr. Trump should he be convicted of Mr. Smith's allegations related to the Capitol riot.

However, if this does not succeed, he is free to run again for the White House. But what would happen if he actually won and tried to use his regained pardon powers to his own advantage is where things get really tricky.

Justice Department Special Counsel Jack Smith

(AFP/Getty)

First, presidential pardons apply only to federal crimes.

While that means he could potentially acquit himself in the secret documents and 2020 election cases filed by Mr Smith, he could not do so in the indictment brought by Mr Bragg, which is a matter of state.

Second, the Constitution prohibits presidents from pardoning themselves as part of impeachment proceedings, meaning that any conduct Mr. Trump has found guilty of in connection with impeachment is ineligible for pardon.

Third, any pardon would almost certainly lead to a Supreme Court trial, and the court might not be inclined to side with Mr Trump, despite the current Conservative majority on its benches.

A 1974 Justice Department memo said, “Under the fundamental rule that no man shall be a judge in his own case, the President may not pardon himself.” While that memo is not law, it could serve as a precedent if so the situation is dealt with in court.

So, should a scenario arise in which Mr. Trump would win the 2024 election but was convicted on state (a trial is scheduled for March) or federal indictments related to the Capitol riot he was charged with, He was not allowed to pardon himself, which likely led to a massive and costly legal battle to spare him jail time.

Should he be unable to avoid that outcome, the situation would almost certainly lead to a third impeachment, or his impeachment via the 25th Amendment, which allows the cabinet to remove a president who is unable to perform his duties .

There are many duties and specialties of the presidency that an incarcerated person simply could not perform from a jail cell, such as sifting through classified information, to name but one.

We are currently still largely in the hypothetical realm, and a possible conviction of Mr Trump is still a long way off and little more than a distant possibility.

But the talks he began with his recent presidential bid have already pushed parts of theoretical US constitutional law far further than many pundits ever thought they would see.