Can President Trump Pardon Himself And His Family?
Legal experts say the president’s pardon powers are wide-ranging, but they do have limits. Can President Trump Pardon Himself And His Family?
As his term comes to an end, President Trump is being urged by some supporters to consider pardons for close allies, family members and even himself.
Mr. Trump “needs to pardon his whole family and himself,” Fox News host Sean Hannity said this week on his radio show. Mr. Hannity said politically motivated investigations of Mr. Trump could occur when he is out of office and encouraged the president to use his constitutional powers to put a stop to them.
Mr. Trump has already pardoned his former national security adviser Michael Flynn. Here is a look at what else he can and can’t do with his pardon power.
Can The President Pardon His Children, His Family And His Close Associates?
The answer is almost certainly yes. The U.S. Constitution grants the president the power “to grant reprieves and pardons for offenses against the United States”—with few limits on that power found either in the text of the Constitution or in subsequent court decisions.
The provision has been interpreted to allow presidents to grant pardons, which expunge charges completely, or commutations, which lessen a sentence. The president can also reduce or cancel fines.
In 1866, The U.S. Supreme Court Held That The Power To Grant Pardons “Is Unlimited Except In Cases Of Impeachment.” It Added:
“It 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.”
Pardons can’t be revoked or reversed by a president’s successor.
There is even recent precedent for a president offering pardons to his family and close associates. As Bill Clinton left office in 2000, he pardoned his half-brotherRoger Clinton, as well as a longtime friend and associate, Susan McDougal, who had served jail time for refusing to testify as part of an investigation into Mr. Clinton.
Can The President Pardon Himself?
In a brief 1974 legal memorandum written days before Richard Nixon resigned over his role in the Watergate scandal, the Justice Department said that a president can’t give a pardon to himself under the age-old legal principle that “no one may be a judge in his own case.”
No president has ever tried to pardon himself, and some legal scholars disagree with the 1974 Justice Department opinion.
“The answer is crystal clear: No one knows, and we will probably never obtain a definitive answer,” Harvard Prof. Alan Dershowitz wrote in a 2018 op-ed. Others, like former federal prosecutor Andy McCarthy, argue that the president is allowed to self-pardon.
Mr. Trump appears to believe he can grant himself clemency. In June 2018 he wrote on Twitter: “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?”
Despite the 1974 Justice Department opinion, Mr. Trump could try to write himself a pardon before he leaves office. The issue would only ever reach a judge if a future Justice Department decided to try to indict him, which would then force a court to weigh in on the issue.
Must a pardon be for specific crimes? Can the president write a blanket pardon even if a person isn’t currently under investigation?
“Pardons are usually for specific things,” said Jonathan Adler, a law professor at Case Western Reserve University. “There are reasons to doubt that a pardon can simply say ‘any and all violations of federal law that have ever been committed.’”
But the exact boundaries of how expansive a pardon can be are untested—and many presidents have granted broad amnesty or other clemencies to groups of people.
Gerald Ford’s pardon of Mr. Nixon was quite broad—pardoning the ex-president for “all offenses against the United States” during the period of his presidency.
Other pardons involved large numbers of people. Jimmy Carter issued blanket pardons to those who evaded the military draft during the Vietnam War.
George Washington and John Adams issued amnesty to those who participated in rebellions against federal tax collectors and James Madison pardoned a large number of pirates operating in Louisiana, while Abraham Lincoln and Andrew Johnson granted extensive amnesty to former Confederates after the Civil War.
Mr. Trump’s pardon of Mr. Flynn freed him from any crimes within the jurisdiction of the special counsel’s investigation.
A president can issue pardons before any charges are brought. Most legal scholars agree that a president cannot issue pardon for crimes not yet committed, but could promise a future pardon to an associate planning to commit a crime.
The framers of the Constitution worried about such a possibility when drafting the power, but believed it could be checked through impeachment.
“What people feared it would be used for is that the president would send forth his minions to do dastardly things with the promise that once the acts were committed, they would be pardoned,” said Mr. Adler. “Fortunately, in our history, we have not seen that.”
Are There Any Checks On The Pardon Power?
The Supreme Court has held that the pardon power is beyond the control of Congress, meaning that absent a constitutional amendment there is little the legislature could do to check the power.
Any corruption in exchange for a pardon could potentially be investigated and charged as a separate crime in some circumstances, though that would likely not nullify the pardon itself.
The Justice Department did open an investigation into the circumstances around Mr. Clinton’s pardon of fugitive financier Marc Rich, but closed the investigation several years later without any charges. The late Mr. Rich’s wife had been a substantial donor to Democratic causes, including being a major benefactor to Mr. Clinton’s presidential library.
Does The Presidential Pardon Power Apply To State Offenses?
No. A president can only issue pardons for federal crimes. Presidential clemency couldn’t stop state officials from investigating potential state law violations by Mr. Trump, his associates or his family members.
New York state prosecutors are fighting for access to Mr. Trump’s tax returns as part of a wide-ranging criminal investigation being conducted by Manhattan District Attorney Cyrus Vance Jr. into possible insurance or bank fraud. In addition, the New York attorney general is conducting a separate civil investigation.
The president has no ability to curtail or bring to an end those investigations using his pardon power.
Why Presidential Pardons Are Normal, Trump’s Less So
The U.S. president has vast constitutional power to grant clemency in the form of pardons and commutations. The process is often tinged with politics. George H.W. Bush pardoned six men involved in the Iran-Contra scandal, while Bill Clinton pardoned Marc Rich, a Democratic Party donor who had fled to Switzerland after being accused of tax crimes.
But clemency under Donald Trump has been unusual in multiple respects, including how recipients are evaluated and how announcements are timed. There’s even renewed speculation that Trump, before leaving office on Jan. 20, might try to preemptively pardon himself as a shield against any future prosecution for alleged federal crimes.
1. What Is A Pardon?
It’s an act of presidential forgiveness rooted in Article II, Section 2 of the U.S. Constitution that wipes the slate clean for the recipient, even halting judicial proceedings that are under way. (A commutation differs from a pardon by making a punishment milder without wiping out the underlying conviction.)
Alexander Hamilton, explaining the purpose of presidential pardoning power in Federalist Paper No. 74, said that the severity of a criminal code demands “an easy access to exceptions in favor of unfortunate guilt,” without which “justice would wear a countenance too sanguinary and cruel.”
2. Who Has Been Pardoned By Trump?
As of Dec. 2, Trump had issued 29 pardons and 16 commutations, many of them to politically connected convicts in response to outcry from fellow Republicans or appeals from celebrities.
He pardoned Michael Flynn, his first national security adviser, who had pleaded guilty to lying to FBI agents, and commuted the sentence of political ally Roger Stone, who was supposed to serve more than three years in prison for witness tampering and lying to Congress.
Other recipients of clemency include author Dinesh D’Sousa, who pleaded guilty in 2014 to using straw donors to evade campaign finance limits; I. Lewis “Scooter” Libby, the former chief of staff to Vice President Dick Cheney who was convicted in 2007 of perjury and obstructing justice; former Illinois Governor Rod Blagojevich, a Democrat who was convicted of public corruption; financier Michael Milken, who was convicted of securities fraud; and former New York City Police Commissioner Bernard Kerik, who was sentenced to four years in prison for failure to pay taxes and lying to White House officials.
3. How Else Is Trump Doing Things Differently?
He’s made clemency something of a theatrical process, announcing a posthumous pardon of Susan B. Anthony to mark the centennial of women’s suffrage and timing another pardon to be part of the 2020 Republican National Convention.
While standard procedure is to let the Justice Department’s Office of the Pardon Attorney vet requests, most of Trump’s grants of clemency have gone to people who didn’t meet the office’s requirements or hadn’t even asked for one, as the Washington Post reported in February.
Trump’s first pardon was given to Joe Arpaio, the former Maricopa County, Arizona, sheriff who had been found guilty a year prior of criminal contempt of court.
Arpaio hadn’t applied for the pardon, and regardless, the Justice Department’s guidelines say pardon requests shouldn’t be made until five years have passed after the completion of a sentence, or from the sentencing date if no confinement is ordered.
Another recipient of a Trump pardon, David Safavian, who had served prison time for obstructing justice in the investigation of former lobbyist Jack Abramoff, said he hadn’t sought a pardon and that it came “out of the blue.”
4. Is Trump Allowed To Do That?
Yes. The president can grant a pardon “to any individual he deems fit, irrespective of whether an application has been filed with the Office of the Pardon Attorney” and at any time after the commission of an offense, the Congressional Research Service has written.
5. Who Else Is Seeking Pardons?
A lot of people, most of them not famous at all. There were 2,445 pending requests for pardons and 11,510 pending requests for commutations at the start of this fiscal year, according to the Justice Department.
6. Could Trump Pardon Himself?
Trump, in a 2018 tweet, claimed an “absolute right” to pardon himself. But that’s far from clear. Experts weighing the question point to legal advice given to President Richard Nixon in 1974 in connection with the Watergate scandal: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” That advice hasn’t ever been tested in court.
Trump has shown he’s willing to press the limits of his executive authority in unprecedented ways, and he’s been effective at rallying his base around claims that Democrats are out to get him. Trump pardoning himself would fit with that pattern. In 2018, Trump’s own lawyer, Rudy Giuliani, said Trump pardoning himself “would be unthinkable.”
More recently, on Nov. 30, one of the president’s favorite TV personalities, Sean Hannity of Fox News, said Trump should “pardon his whole family and himself” on his way out the door. Even if Trump did so, and the pardon withstood legal challenges, it wouldn’t preempt state or local authorities from charging him.
Ivanka Trump Questioned In Suit Over Inaugural Hotel Cost
Ivanka Trump was interviewed by District of Columbia lawyers in a lawsuit where President Donald Trump’s inaugural committee is accused of illegally overpaying for events at a hotel owned by his family business.
The deposition of the president’s daughter, a top White House aide, was taken Tuesday and is one of many key interviews taken in recent months, according to a court filing, which also disclosed that First Lady Melania Trump has been subpoenaed for documents.
Lawyers for District of Columbia Attorney General Karl Racine also have deposed Mickael Damelincourt, the managing director of the Trump hotel in downtown Washington and Eric Danziger, who runs Trump’s hotel business, as well as Thomas Barrack Jr., a longtime friend of the president’s and chairman of the inauguration committee, according to the filing. The content of the depositions wasn’t disclosed or described.
The White House declined to comment.
Filed in January in District of Columbia Superior Court, the case is one of numerous and varied legal actions Trump, his family and associates face as the president reenters private life next month.
Racine, a Democrat, argues that Trump’s inaugural committee made an unjustified payment of more than $1 million to the Trump hotel for events from Jan. 17 to Jan. 20, 2017, after failing to consider less expensive alternatives.
The depositions were reported earlier by CNN.
The case is District of Columbia v. 58th Presidential Inaugural Committee, 2020 CA 000488 B, Superior Court of the District of Columbia.
Trump Prepares Pardon List For Aides And Family, And Maybe Himself
President Donald Trump has prepared a sweeping list of individuals he’s hoping to pardon in the final days of his administration that includes senior White House officials, family members, prominent rappers — and possibly himself, according to people familiar with the matter.
Trump is hoping to announce the pardons on Jan. 19 — his final full day in office — and his ideas are currently being vetted by senior advisers and the White House counsel’s office, the people said.
The biggest question facing his legal team may be whether the president has the authority to pardon himself, as he has discussed in recent weeks with top aides, according to the people familiar with his conversations. Trump has previously claimed the power, though it’s a matter of legal dispute and has never before been attempted by a president.
A self-pardon could also prove a major political liability and hamstring another presidential bid, with opponents sure to suggest the self-pardon amounted to an admission that he thought he might be prosecuted for breaking the law.
Preemptive pardons are under discussion for top White House officials who have not been charged with crimes, including Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John McEntee, and social media director Dan Scavino.
The president’s eldest daughter, Ivanka Trump, her husband, Jared Kushner, who both hold White House positions, are also under consideration, the people said. Trump’s personal lawyer Rudy Giuliani has also discussed the issue of a pardon with the president.
Preemptive pardons are also under consideration for other members of the president’s family, as well as friends and allies. For instance, Trump has floated a preemptive pardon for Kimberly Guilfoyle, the former Fox News host who is dating his eldest son, Donald Trump Jr.
The president wants the preemptive pardons to shield recipients from prosecutions for any federal crimes committed before the pardons were issued.
He’s also considering a traditional pardon for Albert Pirro, who previously worked with the president on real estate deals and was convicted of tax fraud. Pirro is the ex-husband of Fox News host Jeanine Pirro, a former district attorney of Westchester County in New York.
Trump is similarly considering pardoning celebrities including rapper Lil Wayne — with whom he posed for a photo during the presidential campaign –as well as rapper Kodak Black, who is serving time for falsifying paperwork to obtain a firearm.
Other prominent celebrities including rapper Lil Yachty and Baltimore Ravens quarterback Lamar Jackson have publicly lobbied Trump to pardon Kodak Black, who said in a now-deleted tweet that he would donate $1 million to charity if the president freed him.
Trump’s list is currently being vetted by lawyers who are concerned that pardons could create new allegations of obstruction of justice for members of the administration. The process is being managed in part by White House Counsel Pat Cipollone. A White House spokesman did not immediately respond to a request for comment.
While some of the proposed pardons have moved through the legal steps needed inside the White House, the idea of a self-pardon is far less developed, the people say, and so far only at the discussion stage.
A self-pardon could shield Trump from prosecution over a myriad of issues his political opponents have suggested could be worthy of prosecution, from his federal income tax filings to hush money payments to an adult film star to his inaugural committee’s spending at venues owned by the Trump family.
Some Democrats have continued to say Trump should face legal scrutiny over the Russian interference campaign during the 2016 election, despite Special Counsel Robert Mueller finding no evidence the president colluded with the Kremlin. And in recent days, Trump has drawn scrutiny over his effort to pressure officials in Georgia to overturn the results of the presidential election there, as well as inciting what became a violent mob that stormed the U.S. Capitol on Wednesday.
A U.S. Capitol Police officer died of injuries he sustained “while physically engaging with protesters” during the unrest, according to the department. The officer was the fifth person who died in connection to the storming of the Capitol.
The Constitution says that a president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” That sprawling authority is seen as absolute by some, though a Department of Justice legal opinion from 1974 stated that “the president cannot pardon himself,” because of what it described as a “fundamental rule that no one may be a judge in his own case.”
Brian Kalt, a professor at Michigan State University College of Law who has written extensively about self-pardons, said it’s not clear whether the president can do it.
“The main argument in favor of the self-pardon power is that the Constitution does not expressly rule it out, and that the pardon power is extremely expansive,” he said.
“The argument against self-pardonability starts with the idea that granting a pardon is, by definition, something one can only do to another person,” Kalt said. “There is also a general principle in the law against being the judge in one’s own case.”
Ford And Nixon
Trump would not be the first person to issue pardons preemptively, though the action is rare. Gerald Ford did so for Richard Nixon only a month after his resignation over the Watergate scandal, granting him a “full, free, and absolute pardon” for offenses he “has committed or may have committed or taken part in” during his entire term as president.
Trump’s pardoning power only extends to federal crimes, meaning he could not protect himself or his family from legal trouble on the state level. New York Attorney General Letitia James had opened a civil fraud inquiry into the president’s businesses while Manhattan District Attorney Cy Vance is pursuing a criminal investigation.
Trump has already issued pardons to several political allies and friends, including in the weeks since he lost re-election.
Among those pardoned in recent days were Trump’s 2016 campaign chairman, Paul Manafort, who’d been convicted of financial crimes and illegal lobbying, and Charles Kushner, the real estate developer and father of the president’s son-in-law. The elder Kushner was convicted of charges that included preparing false tax returns and witness retaliation.
A Trump Self-Pardon Could Make Criminal Charges More Likely
Any move by President Donald Trump to pardon himself in his final days in office could backfire, legal experts say, inviting the incoming administration to challenge the unprecedented action by filing criminal charges against him.
Trump has raised the possibility of a self-pardon in recent days as calls grow for him to face prosecution for inciting the U.S. Capitol siege that resulted in five deaths and sent members of Congress scrambling for safety. But though the president has vast authority to grant clemency to others, a self-pardon would be a novel assertion of executive power that both Democrats and Republicans might want the Supreme Court to strike down.
“It would almost set himself up as a sitting duck to be prosecuted,” said Nick Akerman, a former Watergate prosecutor. “It takes the edge off the idea that you’re going after somebody just because they were a political opponent in the prior administration.”
Trump faced legal threats even before Wednesday’s riot. The administration of President-elect Joe Biden could decide to revive Special Counsel Robert Mueller’s investigation into obstruction of justice by Trump or launch a new probe into his taxes. But such prosecutions were likely to face stiff Republican opposition, and Biden has signaled he might prefer to move on.
The Capitol siege has now scrambled political calculations, with many of the president’s allies abandoning him. The New York Times reported on Thursday that White House Counsel Pat Cipollone warned Trump he could potentially face charges for encouraging the riot. At a press conference on Thursday, the acting U.S. attorney in Washington said he would not rule out investigating the president’s role.
Under such circumstances, a self-pardon may prove tempting for Trump. But many experts say the idea has weak legal foundations.
To start with, Trump has been shielded from federal criminal prosecution while in office not by the Constitution or binding Supreme Court precedent but by internal Justice Department policy. A self-pardon would challenge the constitutionality of another such policy encapsulated in a 1974 memo citing the “fundamental rule that no one may be a judge in his own case” and concluding that “the president cannot pardon himself.”
The Justice Department policy dates from the Watergate scandal, in which President Richard Nixon resigned and was pardoned by his former vice president, Gerald Ford. If Trump were to follow that path and accept a pardon from a President Mike Pence, the act would be on solid legal ground. But a self-pardon has no historical precedent.
The Constitution says that a president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Some experts have said they believe this means the power is absolute. Former George W. Bush Justice Department official John Yoo wrote in an October 2017 New York Times op-ed that the president “can clearly pardon anyone — even himself.”
But other experts say that would go against the framer’s intent. “If the president can pardon himself, there’s no recourse for federal crimes that he has committed,” said Jessica Levinson, a constitutional law professor at Loyola Marymount University, “and that’s not really how our system is set up.”
Akerman points to the verb “grant” as evidence that a pardon is something the president can only bestow on others.
“It’s a transitive verb, the object of which is somebody other than the person doing the granting,” he said. “Linguistically, it doesn’t make sense that you can pardon yourself.”
Trump may previously have thought that the Supreme Court’s 6-3 conservative majority, which includes three justices he appointed, would side with him in such a dispute. He repeatedly expressed a belief that the high court would back his legal efforts to overturn the election results. But the justices, along with several other federal judges, soundly rejected the president’s arguments. Experts say they are likely to be similarly skeptical about a self-pardon.
Jennifer Rodgers, a former federal prosecutor who teaches at Columbia Law School, said she doubts the conservative justices would side with Trump in such a case.
”You have a number of them who are self-professed originalists, so they ought to be looking at what the framers intended by the pardon power,” Rodgers said. “That leads toward saying a self-pardon is not within a president’s power.”
Still, the president may ultimately conclude that the possible benefits of a self-pardon outweigh the risks. The legal battle over the validity of the pardon would prolong any prosecution, giving him time to build a stronger defense and sapping the government’s resources.
“He would still have a benefit if it was not successful,” said Andrew Weissmann, one of the top prosecutors on Mueller’s team. “It would delay the process quite some time.”
The prospect of a prolonged fight that could distract from other policy goals may be one reason the Biden administration ultimately decides not to pursue charges against Trump. During the campaign, the president-elect also expressed concern about setting a dangerous precedent of prosecuting political opponents, saying it probably would be “not very good for democracy.”
Even if it decides against charges, experts say the Justice Department could still challenge the validity of a Trump self-pardon by writing a more thorough, updated version of the 1974 memo, said Jed Shugerman, a law professor at Fordham. Though it wouldn’t have the binding legal force of a Supreme Court opinion, it might discourage future presidents from taking similar action in the future.
A Trump self-pardon could further fuel other legal risks to him. The president’s pardon power applies only to federal crimes. It offers no protection from state-level investigations like the inquiry by Manhattan District Attorney Cy Vance into Trump’s business dealings. The New York prosecutor recently questioned employees at Deutsche Bank and insurance broker Aon as part of a probe that initially focused on hush-money payments made to adult-film actress Stormy Daniels, who claims she had an affair with Trump over a decade ago.
Georgia Secretary of State Brad Raffensperger has also said Trump could face a state investigation over the Jan. 2 call in which he asked the election official to “find” just enough votes to overturn Biden’s victory in the state. Knowingly encouraging voter fraud is both a federal and state crime.
State authorities would likely use a Trump self-pardon to rally public support for cases against the outgoing president, said Rodgers.
“People will be on board a bit more with the decision to prosecute him if he does try to give himself a pardon on the way out,” she said. “A large portion of the public will recognize it as outrageous.”