We’ve already seen President Trump grant pardons to several of his closest allies, including former National Security Adviser Michael Flynn and former Maricopa County Sheriff Joe Arpaio. Reports say that even the Tiger King, Joseph Maldonado-Passage (better known as Joe Exotic), is hoping for a get-out-of-federal-prison-free card.
But the bigger clemency issue remains: Will President Trump pardon himself (for crimes he says he hasn’t committed)? It’s something no other president has done.
With the upcoming transition of power, some are suggesting President Trump should issue more pardons—to his confidants, family, and even himself—before leaving the Oval Office. But are such pardons legal? And what sort of immunity can they provide to the President himself, his family, and his allies?
Presidential Pardon Power
The U.S. Constitution states, “The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” (U.S. Const., art. II, § 2, cl. 1.)
This language gives the president broad pardoning power, with few limitations. (Schick v. Reed, 419 U.S. 256 (1974).) Here’s how that power works.
Federal crimes only. A president’s power to pardon individuals extends only to federal—not state—crimes. So, a state prosecutor still has the power to file state criminal charges against Trump or anyone else receiving a presidential pardon. Manhattan District Attorney Cyrus Vance Jr. already has his office investigating Trump’s business dealings in the state of New York.
No charges, no conviction, no problem. Precedent exists for using the pardon power preemptively, meaning before a person has been prosecuted, convicted, or sentenced. (Ex parte Garland, 71 U.S. 333 (1866).) President Gerald Ford used his presidential power to pardon President Richard Nixon (after Nixon’s resignation) for acts allegedly tied to the Watergate scandal, even though Nixon faced no formal charges.
Crimes of past, of present, or yet to come? The use of “preemptive pardons” extends only to past criminal acts, not criminal acts yet to come. The official document granting the pardon typically identifies the offense or offenses being pardoned. But, similar to the Nixon pardon, the President could issue a pardon for all acts allegedly committed during a past time frame. (And who’s to say a similar arrangement couldn’t unfold between Trump and Pence in the last hours of the presidency?)
Family pardons. Typically, presidents use their power of clemency as an act of grace, forgiveness, or leniency. The U.S. Department of Justice states that, “A pardon is an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence. “ But that’s not to say a president can’t use it in other, more political, ways. And President Trump wouldn’t be the first to use the pardon power for personal reasons.
Self-Pardon: Is It Constitutional?
Without legal precedent, the answer is unclear. Even legal scholars’ opinions on the constitutionality of a presidential self-pardon land firmly in opposing camps.
Arguments suggesting that a presidential self-pardon is unconstitutional include:
- No one, not even the President of the United States, is above the law.
- A self-pardon violates the president’s constitutional oath to faithfully execute the laws.
- The president cannot engage in self-dealing.
On the flip side, others argue that the president clearly has the power to self-pardon. Two arguments in this regard are:
- The Constitution already provides limits to the presidential pardon powers, and those limits do not prohibit a self-pardon.
- As the nation’s chief prosecutor, the president has the power of prosecutorial discretion, even when it comes to his own dealings.
Constitutional or not, one thing is clear—President Trump has no qualms about testing his presidential powers. He’s gone so far as to declare that Article II gives him “the right to do whatever [he] want[s] as president.” With potential federal criminal charges looming, what or who’s to stop him from trying?