President Donald Trump has told aides in recent weeks that he is considering issuing himself a federal pardon, The New York Times reported on Thursday, citing two sources with knowledge of the matter.
The conversations took place after the Nov. 3 election, but it is not clear if they have continued since the D.C. riots on Wednesday, which have reinvigorated calls for his immediate removal from office.
The prospect of a president issuing himself a pardon is unprecedented in U.S. history and has never been tested by the legal system. Scholars are divided on whether such an act would be permissible. Even if the pardon were lawful, it would only apply to federal crimes.
The White House declined to comment.
Trump has also floated the idea of pardoning family members and close associates, NBC News has reported. It is typical for presidents to issue politically disadvantageous pardons shortly before they leave office, but no president has ever attempted to pardon himself.
Read more: Here’s what 12 experts say about whether President Trump can pardon himself
Only President Richard Nixon, who resigned in disgrace, has received a pardon. He was pardoned by President Gerald Ford for his role in the Watergate scandal that ultimately brought down his presidency.
Trump claimed in a 2018 post on Twitter that he has the “absolute right” to pardon himself. The Office of Legal Counsel came to the opposite conclusion in a 1974 opinion issued shortly before Nixon resigned. OLC opinions are not binding.
Legal experts have said that Trump could potentially be exposed to federal charges related to his efforts to obstruct former special counsel Robert Mueller’s investigation into alleged ties between his 2016 campaign and Russia.
Mueller outlined ten potential episodes of obstruction in his report concluding his investigation and specified that Trump had not been exonerated. Trump has maintained that he did nothing wrong.
It is also possible that Trump violated federal law by pressuring the top elections official in Georgia to “find” votes in an hour-long phone call on Saturday, audio of which was published by The Washington Post.
“So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have,” Trump said on the phone call.
The New York Times reported that the discussions of a pardon occurred before the call, which was between Trump and Brad Raffensperger, Georgia’s Republican secretary of state.
The D.C. riots on Wednesday may have added to Trump’s potential criminal exposure. According to the Times, the White House counsel, Pat Cipollone, warned Trump that he could be in legal jeopardy as a result of his actions instigating the mob that attacked the U.S. Capitol.
The acting U.S. Attorney for D.C., Mike Sherwin, declined to rule out prosecuting Trump for inciting the riot on Thursday.
President-elect Joe Biden has shown no eagerness to prosecute Trump once the former vice president takes office on Jan. 20, but he has not ruled out the possibility of his Department of Justice doing so.
On Thursday, Biden formally announced that he would nominate federal appeals court judge Merrick Garland, a centrist whom former President Barack Obama nominated to the Supreme Court, as attorney general. Biden stressed that Garland would be independent in the role.
“I want it to be clear to those who lead the department and those who serve there,” Biden said. “You don’t work for me. Your loyalty isn’t to me. It is to the law.”
Trump also faces criminal exposure at the state level. In New York, Manhattan District Attorney Cy Vance, Jr. has suggested that Trump and his businesses could be criminally prosecuted for tax crimes.
The Supreme Court sided with Vance over the summer in a case in which Vance sought to gain access to Trump’s financial records, including his tax returns. That dispute continues to be litigated.
Subscribe to CNBC Pro for the TV livestream, deep insights and analysis on how to invest during the next presidential term.