Analyzing Trump’s power to pardon
Chatter regarding potential plans for the president to pardon his associates, and possibly himself, has heightened interest in the scope of Trump’s clemency powers.
WASHINGTON—U.S. President Donald Trump has consulted his legal advisers about the possibility of pre-emptively pardoning his associates — and possibly even himself — to undermine the Justice Department’s Russia investigation, the Washington Post reported Thursday night. But Friday, John Dowd, Trump’s new personal lawyer, denied to BuzzFeed that any such discussions have taken place.
Either way, the chatter has heightened interest in several key legal issues about the scope and limits of Trump’s clemency powers. Here is what you need to know:
What is the pardon power?
The Constitution gives presidents clemency powers “to grant reprieves and pardons for offences against the United States, except in cases of impeachment.” By bestowing a pardon on someone who committed a federal crime, the president nullifies the legal consequences of that crime.
May a president issue prospective pardons?
Yes. In Ex parte Garland, an 1866 case involving a former Confederate senator who had been pardoned by President Andrew Johnson, the Supreme Court made clear that the pardon power “extends to every offence 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.”
It is unusual for a president to issue a prospective pardon before charges are filed, let alone a conviction proving that someone committed a crime, but there are examples. In 1974, after president Richard M. Nixon resigned to avoid being impeached in the Watergate scandal, president Gerald R. Ford shut down the possibility that his predecessor might be indicted by issuing “a full, free and absolute pardon” to Nixon for all federal crimes he “committed or may have committed” during his presidency.
And in 1992, shortly before leaving office, president George H.W. Bush pardoned six Reagan administration officials over “their conduct related to the Iran-Contra affair,” including the former defence secretary, Caspar W. Weinberger, who was about to go to trial on charges that he had lied to Congress. The independent prosecutor, Lawrence E. Walsh, who had been planning to use that trial in part to explore if Bush had any role in the scandal when he was the vice-president, accused Bush of a “coverup.”
How would pardons affect the Trump-Russia investigations?
Anyone pardoned by Trump would receive immunity from being charged with a federal crime over his or her past conduct covered by the pardon. That could contract the scope of the special counsel investigation led by Robert Mueller into possible ties between associates of Trump and Russia’s meddling in the presidential election.
Still, if Trump did not also pardon any Russian officials for violating U.S. law in carrying out an election-influence operation, then the investigation might continue in ways that could make the past conduct of the pardoned people still subject to Mueller’s scrutiny; they would be suspected unindicted co-conspirators to any crimes by the Russians.
In addition, because recipients of pardons would no longer face potential legal jeopardy, they would not be able to invoke a Fifth Amendment right against self-incrimination to avoid testifying about the matter before the House and Senate Intelligence committees, which are separately conducting oversight investigations. Michael Flynn, Trump’s former national security adviser, has invoked that right.
Could pardons increase Trump’s legal risk?
Some legal specialists think so. While pardons are widely understood to be irrevocable even if obtained through questionable means, some experts think that a president who abuses his pardon power might be subject to prosecution. In 2001, then-Sen. Jeff Sessions, who is now Trump’s attorney general, voiced support for the idea of a bribery investigation into president Bill Clinton for his pardon of Marc Rich, a fugitive financier whose ex-wife had donated to the Democratic Party and the Clinton library foundation.
In an op-ed published in the New York Times, two University of Chicago law professors, Daniel Hemel and Eric Posner, argued that if Trump pardoned his relatives and aides to cover up possible crimes and impede Mueller’s investigation, rather than for reasons of mercy or public welfare, it could increase the risk that Trump is later charged with obstruction of justice. Trump’s previous actions, including purportedly pressuring James Comey, then the director of the FBI, to back off the investigation into Flynn, have already raised that spectre.
Could Trump pardon himself?
This is not clear. The only limitation explicitly stated in the Constitution is a ban on using a pardon to stop an impeachment proceeding in Congress, and the only obvious implicit limitation is that he cannot pardon offences under state law. But some legal scholars think a president cannot pardon himself, either, because it would be a conflict of interest.
In August 1974, four days before Nixon resigned, Mary C. Lawton, then the acting head of the Justice Department’s Office of Legal Counsel, issued a terse legal opinion stating that “it would seem” that Nixon could not pardon himself “under the fundamental rule that no one may be a judge in his own case.” But she did not explain what transformed that principle into an unwritten legal limit on the power the Constitution bestows on presidents.
Other legal specialists have come out the other way. In a 1998 House Judiciary Committee hearing about the then-proposed impeachment of Clinton, for example, Rep. Bob Goodlatte, who is now chairperson of that panel, stated: “The prevailing opinion is that the president can pardon himself.”
There is no definitive answer because no president has ever tried to pardon himself and then been prosecuted, which would give courts a chance to weigh in. If Trump did purport to pardon himself, and was later indicted anyway, it could create an opportunity for the Supreme Court to resolve the question.
What about the 25th Amendment?
This part of the Constitution provides a mechanism for temporarily making the vice-president the “acting president” when a president is disabled from carrying out his duties. In her 1974 memo, Lawton argued that it would be lawful for a president to declare himself temporarily disabled, receive a pardon from the vice president, and then resume his role as president. Under such a scenario, Trump could put his pardon on firmer legal footing by getting Vice-President Mike Pence to do it for him.