Despite the frivolous lawsuits and cries that the election was “stolen,” president Trump will leave office on January 20, 2021. Almost as certain as his departure is that he will grant a flurry of pardons on his way out the door, perhaps including trying to pardon himself. Given the breadth of the pardon power, there is little that can be done about that. Such pardons, even if controversial, will almost certainly be valid – with the possible exception of a self-pardon. But despite his anticipated best efforts, Trump will not be able to completely shield his family and colleagues – or himself – from future legal liability.
Source and Scope of the Pardon Power
Article II, Section 2 of the U.S. Constitution gives the president the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This clause traces its roots to the power to grant clemency that English kings had for centuries. It’s an important part of our system of checks and balances, allowing the president to correct mistakes or perceived excesses in the justice system or simply to grant forgiveness in appropriate cases. Other than excluding impeachment, the Constitution contains no limits on this presidential power.
Although often referred to by the shorthand “pardon power,” this clause gives the president the ability to grant other forms of clemency as well, such as a commutation or reduction of sentence. For example, in the recent case of Roger Stone, president Trump commuted Stone’s 40-month sentence to keep him out of prison but did not grant him a full pardon. Similarly, president George W. Bush commuted the sentence of White House aide Scooter Libby for his role in the Valerie Plame/CIA leak case but refused to grant Libby a pardon, despite the vigorous objections of Libby’s boss, Dick Cheney.
A pardon represents presidential forgiveness for federal crimes that have been, or may have been, committed. It does not expunge any convictions or seal the recipient’s record, and the recipient still stands convicted. But a pardon removes collateral consequences that may flow from a conviction, such as restrictions on the right to own a firearm or the right to vote. A person whose sentence is commuted but who is not pardoned still bears those other consequences. That’s why someone who has merely had their sentence commuted might seek a full pardon later. Trump pardoned Scooter Libby a decade after Bush had refused to do so, and it seems likely Trump will pardon Stone now that the election is over.
Another difference is that a commutation or reduction of sentence can only come into play if the recipient has actually been convicted and sentenced to some form of punishment. A pardon, on the other hand, may be granted even if a person has not yet been convicted of anything – Gerald Ford’s pardon of Richard Nixon being the most famous example.
A presidential pardon may only cover crimes that have already been committed. A president cannot grant a sort of prospective immunity, authorizing someone to engage in future criminal acts by granting them a blanket pardon.
Most significantly for Trump, the president may only grant pardons for federal crimes. He cannot pardon anyone for state offenses. If an individual receives a presidential pardon, a state generally is still free to prosecute that individual for the same acts if they also constitute state crimes.
Trump’s Use of the Pardon Power
Trump’s use of the pardon power has been controversial. For the most part, he has bypassed the system set up within the Department of Justice and the Office of the Pardon Attorney for reviewing petitions for clemency. He has been more likely to grant clemency based on appeals by a Fox News host, political ally, or other personal connection. His more controversial pardons include Libby, Arizona Sheriff Joe Arpaio, and conservative activist Dinesh D’Souza. He was roundly condemned, including by many in the military, for pardoning soldiers convicted of committing war crimes in Afghanistan, after their cause was promoted on Fox News. Trump also commuted the sentence of former Illinois Governor Rod Blagojevich, who was serving a fourteen-year sentence after being convicted of multiple counts of corruption.
Pardons as a President Leaves Office
It’s not unusual for presidents to grant a number pardons as they are getting ready to leave office. Some of those pardons have been controversial. Bill Clinton pardoned fugitive financier Mark Rich on his last day in office. The FBI later investigated that pardon based on allegations it may have been granted in exchange for large donations to Democrats and the Clinton presidential library by Rich and his wife, although no criminal charges were ever filed. Clinton also pardoned his own brother, Roger, for a minor drug offense.
As he was about to leave office, George H.W. Bush pardoned six defendants about to go to trial over the Iran-Contra affair, including former defense secretary Casper Weinberger. Independent counsel Lawrence Walsh was outraged, suggesting the pardons might constitute obstruction of justice and that Bush acted to prevent information about his own involvement in the scandal from being revealed. (In an interesting historical twist, Bush’s move was supported by then-attorney general William Barr.)
So Trump certainly would not be the first president to raise some eyebrows with his parting pardons. But no previous president has ever had the potential to pardon so many of his own family members or close associates, including many who could potentially implicate the president himself in criminal activity. And no president has tried to pardon himself – although Nixon reportedly considered it.
Who Might Receive a Pardon?
The Mueller Defendants
The first likely recipients of a Trump pardon are those convicted as a result of the Mueller investigation. Trump, of course, has repeatedly attacked that investigation. His attorney general, William Barr, misled the public about Mueller’s report and has worked to undermine prosecutions that resulted, including by seeking to dismiss the Michael Flynn case and intervening in the sentencing of Roger Stone. It would be easy for Trump to justify these pardons by claiming they were all the result of the illegitimate Mueller “witch hunt.” Such pardons would have the added benefit for Trump of rewarding those who could potentially implicate him in wrongdoing and ensuring their continued loyalty.
Flynn seems like a prime candidate for such a pardon. Barr’s DOJ has tried to drop the charges against him after he pleaded guilty to lying to the FBI. The case remains mired in litigation over whether the trial judge must grant the government’s flawed motion to dismiss. By moving to drop the charges, Barr tried to free Flynn while allowing Trump to avoid taking the political heat of granting a pardon prior to the election. Now that the election is over, those political concerns are gone. Given the history, it frankly would be shocking if Trump did not pardon Flynn.
Roger Stone is another likely candidate. Trump commuted his sentence as he was about to report to jail, but now that the election is over look for Trump to bump that commutation up to a full pardon. Stone remained loyal by lying to Congress to protect Trump and refusing to cooperate even when prosecuted for those lies. Expect him to be further rewarded with a full pardon.
The outlook for other Mueller defendants is more cloudy. At times Trump has expressed sympathy for his former campaign manager Paul Manafort, who was convicted of money laundering and related financial crimes based on his work in Ukraine. Manafort pleaded guilty in a second case and agreed to cooperate with Mueller, but ended up lying to Mueller’s investigators. Trump and Manafort were reportedly never that close, but Trump might still pardon him just to take a shot at Mueller. The same is true for deputy campaign manager Rick Gates. Other lesser Russiagate players such as George Papadopoulos might be pardoned as well, again if for no other reason than to try to erase any results of the Mueller probe.
Other Former Insiders
Trump’s former personal attorney Michael Cohen almost certainly does not expect a pardon. Cohen was convicted of fraud and other charges in New York in a case that was spun off from the Mueller probe. His plea notably included a campaign finance charge for the payoff to Stormy Daniels that Cohen says was made at Trump’s direction. He potentially has a great deal of information that could implicate the president. But Cohen has completely turned against Trump, writing a harshly critical book and regularly criticizing him on cable news. He has said he doesn’t want a pardon, and he’s almost certainly going to get his wish.
Other former insiders have legal troubles of their own, but have also fallen out of Trump’s favor. For example, former presidential advisor Steve Bannon is now facing a federal fraud indictment for his involvement in a bogus fundraising scheme related to building Trump’s border wall. Bannon was once the consummate insider, but has also been critical of Trump since leaving the White House. Don’t expect him to receive any presidential clemency.
Trump Family Members
Up to this point we’ve been considering those who have already been charged or convicted. But Trump could also pardon individuals who have not yet been charged with anything, including members of his own family. For example, he could issue pardons for his son Don Jr. and son-in-law Jared Kushner for any crimes committed in connection with the 2016 presidential campaign and possible cooperation with Russia in its efforts to influence that campaign, or for any cover-up crimes related to the later investigations by Mueller and by Congress.
It’s not clear Don Jr. or Kushner want or need any such pardons; Mueller did not find that they had any criminal liability. But Mueller was not able to obtain all the information that he sought, and other facts could come to light under a new administration. Trump might be interested in issuing a sort of prophylactic pardon for any criminal acts related to Russia, the campaign, or the subsequent investigations, just as a precaution. On the other hand, he might conclude that issuing such pardons could make it sound like there was something to the “Russia hoax” after all.
Those who have not been charged or convicted could be reluctant to accept a pardon because they might think it would mean admitting they had done something wrong. But as I discussed in this earlier post, the view that accepting a pardon means you are admitting guilt is now generally discredited. For example, if a president were to pardon someone convicted of murder and then exonerated by DNA evidence, we clearly wouldn’t say that defendant is admitting he is guilty if he accepts the pardon. Trump family members and associates could easily claim they have done nothing wrong but will accept the pardons just to prevent a future, vindictive Democratic administration from pursuing baseless allegations.
Other Possible Pardons
There are other investigations that Trump could potentially try to head off by granting pardons. Not all of them are public, so it’s hard to know the full scope of what he could do here. For example, an investigation into financial misconduct related to the 2016 Trump inauguration may still be pending in the U.S. Attorney’s Office for the Southern District of New York. There could be other investigations pending within that office related to potential financial crimes by the Trump Organization. Presidential attorney Rudy Giuliani is reportedly still under investigation for some of his overseas business activities. To the extent there are such investigation still ongoing, Trump could short-circuit them by simply pardoning everyone who is under scrutiny.
Could Granting the Pardons Be a Crime?
It’s legally possible for granting a pardon to be a criminal act; for example, if a president granted a pardon in exchange for a bribe. During the Mueller investigation there were allegations that Trump attorneys had dangled the possibility of pardons in front of witnesses to encourage them not to cooperate. As I wrote here, had that been established I think it could constitute bribery. Similarly, granting a pardon to head off an investigation into the president himself could potentially constitute obstruction of justice. But at this late stage, proving the requisite corrupt intent to make any of Trump’s parting pardons a potential crime would be extremely difficult.
Can Trump Pardon Himself?
The great unanswered question is whether Trump can pardon himself. Trump has claimed he has that right, but most legal experts disagree. The Office of Legal Counsel in Nixon’s Department of Justice opined that a president could not self-pardon. But no court has ever ruled on the question, and that OLC opinion is not binding on Trump. He could be the first president to test this legal proposition.
For example, Trump could pardon himself for any obstruction of justice he may have committed during the Mueller investigation – probably his most clear-cut criminal exposure. If a Biden Department of Justice then tried to indict him for that obstruction – a big “if” — Trump would raise the pardon as a defense and move to dismiss. That would seem like a legal question destined to be decided by the Supreme Court.
Again, Trump may be reluctant to grant himself a pardon if he thinks it makes him look guilty. But he could easily rationalize it by saying he has done nothing wrong but needs to protect him from future unjustified “witch hunts.”
The Possible Pence Gambit
Trump could also engage in some more complicated gymnastics to seek to ensure that he receives a valid pardon. For example, he could resign the presidency prior to Biden’s inauguration. Mike Pence would then become president, with the power to pardon Trump.
Imagine this scenario: Over the next few weeks, Trump pardons his family members, associates, and anyone else who needs it, perhaps including Pence himself. Trump then resigns on the morning of January 20, a few hours before Biden is inaugurated. Pence is sworn in and becomes president for the morning, and issues the pardon to Trump. It sounds crazy, but a lot of crazy things have happened over the past four years.
Trump could also act under the 25th Amendment to declare himself temporarily unable to perform the duties of president. That would make Pence the acting president until Trump declares himself fit again, and Pence could grant the pardon. Of course, if Trump’s declaration was found to be a fabrication, that could call any such pardon into question.
It’s unclear whether Trump is interested in pardoning himself, or whether he would be willing to take the more dramatic step of resigning early to allow Pence to pardon him. It’s also unclear whether Pence, who has to think about his own political future, would agree to go along.
State Charges and Civil Cases
The most ominous aspect of all this for Trump is his inability to grant pardons for state charges. New York District Attorney Cyrus Vance has been conducting a grand jury investigation of Trump and the Trump Organization for the past couple of years and has been fighting to obtain Trump’s tax returns. The Supreme Court ruled in his favor last spring; the matter is now back before the Court and he is likely to prevail once again. Vance has indicated that possible charges include not just the Stormy Daniels hush money payments but also bank fraud, insurance fraud, or tax fraud.
These potential state charges pose a real risk to Trump, and as president he can’t really do anything about them. If he does end up facing any criminal charges after he leaves office, New York state is the most likely source.
Trump also can’t pardon his way out of the many civil cases against him that may be pending or may be brought in the future, such as the defamation case by E. Jean Carroll, a woman who claims Trump sexually assaulted her. These can’t result in criminal convictions, of course, but could require Trump to pay damages or face other civil sanctions.
It will be very interesting to see what Trump does in the next couple of months. The expected flurry of pardons may turn out to be maddening and even shocking – another entry in the catalogue of outrages from this administration. But despite the awesome power of the presidency, Trump will be unable to shield himself and those around him from all potential legal consequences after he leaves office.
Like this post? Click here to join the Sidebars mailing list