As we head toward Inauguration Day 2021, there is the typical flurry of activity from the outgoing administration: cementing new regulations, appointments, and pardons.
That last one always generates the most buzz. Barack Obama used the end of his second term to grant clemency to hundreds of offenders who faced harsh sentences from the War on Drugs. President Clinton drew heat for pardoning corporate fugitive Marc Rich, whose family had some questionable financial ties to the first family.
Now, as President Trump’s days in office draw to a close, there is new speculation about how the pugilistic norm-breaker may use his pardon power on … himself?
Seeking a Fresh Start?
As the president was embroiled in the seemingly never-ending investigation into his presidential campaign’s dealings with Russia, Trump declared via Twitter (where else?) in 2018:
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?
Even if the Department of Justice is no longer interested in Russiagate once Trump leaves office, he is still facing a flurry of legal troubles related to his business dealings both in and out of office, renewing the self-pardon debate.
There have also allegedly been discussions within the White House of Trump using his authority to grant his family and his attorney, Rudy Giuliani, preemptive pardons due to concerns about a Biden administration’s prying eyes.
Shocker: It’s Murky
Article II, Section 2 of the U.S. Constitution appears to lay out pretty clearly the president’s powers when it comes to clemency:
“[The President] shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
Having survived his impeachment, Trump would not be violating that part of the impeachment clause. The president’s pardon power also applies to federal offenses, which means he could still have trouble with state investigations, such as the one unfolding in New York. But some scholars argue that the pardon power is otherwise absolute.
However, as former U.S. Court of Appeals Judge J. Michael Luttig wrote recently: “There is next to nothing from the constitutional convention, state ratification debates or 229 years of Supreme Court decisions that sheds light on whether this language empowers a president to pardon himself for federal crimes.”
Luttig argues that the word “grant” in Article II, Section 2 means that a pardon is something the president can give as a gift, which you cannot do to yourself. Michigan State University law professor Brian Kalt says that “grant” clearly means “two separate people.”
Are Preemptive Pardons Even Allowed?
In his final days in office, President Richard Nixon pondered the same question: whether he could preemptively pardon himself when he was not yet facing any federal charges.
In a brief memorandum, the Department of Justice concluded that President Nixon could not serve as a judge in his own case, thus rendering a self-pardon off the table for crimes he hadn’t been charged with yet.
President Gerald Ford, however, solved the problem for Nixon a month after he resigned by pardoning him for any crimes he may have committed during his presidency.
The question of preemptive pardons, even for people other than the president, is a tricky one as well. University of California law professor Aaron Rappaport argues that there is no way the founders intended the power of the pardon to extend to what are essentially imagined crimes. He says that an 1855 Supreme Court ruling makes clear that a specific offense must be named when granting a pardon.
So if Trump were to issue pardons to Giuliani and his family members, he would have to list specific possible offenses that they could be charged with in the future, which he may want to avoid. It would also mean that Trump would have to do the same if he were to pardon himself. This would be difficult since he continually asserts that he’s simply the subject of a “witch hunt.”
Will a Court Allow It?
If Trump does issue the pardons, and a Biden-led Department of Justice decides to pursue investigations and charges anyway, the matter would certainly end up in federal court, and most likely the Supreme Court.
There is little precedence to guide the justices on the matter. So whether it’s what the founders intended, some “norms” are likely to be busted again. And with the country pretty much split on whether it wants more or less political drama, one group is sure to be sorely disappointed.