Your Most Paranoid Questions About Trump’s Pardons, Answered
Spoiler: The president pretty much has free rein to pardon whomever he wishes
With weeks to go before Joe Biden enters the Oval Office, speculation is running rampant around whom President Trump will decide to pardon. Trump has several family members and allies under investigation, and the list of names ranges from Jared Kushner to Rudy Giuliani to the president himself. But are there any limitations on Trump’s presidential pardon power, or does he have the ability to bestow Get Out Of Jail Free cards to whomever he chooses?
Can Trump pardon anyone?
Yes, the presidential pardon power is very open-ended. Article II, Section 2 of the Constitution provides that the president “shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” In the 1866 case, Ex Parte Garland, the Supreme Court further elaborated that the power of the pardon “extends to every offense known to the law, and may be exercised at any time after its commission.”
So you don’t need to be pardoned for a specific offense?
Nope. As Frank Bowman, a professor at the University of Missouri law school told GEN, “presidents have issued a boatload of fairly non-specific pardons.” Most notoriously, Gerald Ford pardoned Richard Nixon “for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.” More recently, former National Security Advisor Michael Flynn was pardoned by Trump for “any and all offenses” connected to the Mueller investigation.
Are there any limitations on his pardon power?
There are some. First, as stated, the president can’t issue pardons in cases of impeachment. The presidential pardon power is based on that of the King of England and this limitation on the royal pardon power goes back to the 17th century. Second, the pardon power only applies to “offenses against the United States.” This means the president cannot pardon for state or local crimes, only federal offenses. Further, pardons can only be retrospective — someone cannot be pardoned for a crime yet to be committed.
Yep. Trump can pardon anyone he wishes even if there are allegations that they committed crimes on his behalf, as was the case with his former political confidant Roger Stone, whom Trump pardoned in July.
The issue of whether pardons should be allowed for crimes committed on a president’s behalf was debated at the 1787 Constitutional Convention. Edmund Randolph, later to be the first attorney general, proposed an exception for treason in the pardon power. He argued “the prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.” This argument was rejected by fellow Founder James Wilson who countered “Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.” In other words, the Founders trusted in the impeachment process if the president committed a crime.
Can Trump pardon himself?
This is a tricky question. On Twitter Trump has claimed “the absolute right” to pardon himself. However, like many claims in Trump tweets, it doesn’t quite stand up to scrutiny. As Jack Goldsmith, a professor at Harvard Law and an assistant attorney general in the George W. Bush Department of Justice, explained, “Nobody knows for sure [if presidents can self-pardon]. The only process for challenging a self-pardon would be in the context of challenging an investigation and prosecution of a former president who self-pardoned.”
Precedent for this is limited as well. Looking back to the roots of the presidential pardon power in that possessed by the King of England, the British monarch could not pardon himself because “he was the fountain of justice” and thus incapable of committing a crime. More recently, there is a cursory memo from the Justice Department’s Office of Legal Counsel under the Nixon Administration, which concluded that it cannot happen “under the fundamental rule that no one may be a judge in his own case.”
Is there a way he could get around this?
Yes. Trump could invoke the 25th Amendment, which would involve him issuing a written declaration to the Speaker of the House and President Pro Tempore of the Senate that he is unable to discharge the duties of the president. Vice President Mike Pence would then become acting president and pardon Trump, at which point Trump could then revoke the declaration of disability. Or, for simplicity’s sake, Trump could just resign and let Pence become president.
This requires Trump’s confidence that Pence would go along with the scheme. Further, it would open them both up to criminal liability. “The more sure he is that Pence would do it, the more likely it is to be a crime,” said Michigan State law professor Brian Kalt. After all, it would be exchanging a thing of value for a pardon.
So could Trump still go to jail?
Setting aside the potential of Trump to be prosecuted in state courts, which a pardon cannot absolve, he could still face federal prosecution even with a self-pardon. Presumably, his attorneys would offer the self-pardon as a defense early in the process, a constitutionally questionable action that could force the Supreme Court to weigh in.
In addition to the legal system, Trump could still be impeached for a second time, as former federal officers may be subject to impeachment. In 1876, the U.S. Senate voted to move forward with the impeachment trial of former Secretary of War William Belknap, though the former official narrowly avoided conviction by the necessary 2/3rd majority. More recently, Trump ally Rep. Matt Gaetz suggested impeaching Barack Obama. The other potential penalty of impeachment under the Constitution is “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”
Of course, no former president has ever faced prosecution since leaving office, and there would be formidable obstacles to federal prosecutors challenging that precedent in such a fiercely partisan environment.