Given that the president can legally and unilaterally pardon a person for federal crimes, some have questioned whether Trump can and would try to pardon himself. Trump has reportedly asked aides about the range of his forgiving power since the November election, from which he lost.
At least two figures associated with the White House – former Attorney General William Barr and White House counsel Pat Cipollone – have reportedly warned Trump not to attempt self-forgiveness, CNN reported Monday. But would he? What kind of forgiving power does a president have, and who could then pardon Trump? Here’s what you need to know about a presidential pardon.
Can President Trump Forgive Himself?
Trump seeking self-forgiveness would be uncharted territory, with no precedent and no outright rule against it. It seems there is currently no known legal barrier holding President Trump back from the attempt.
The Constitution, under Article II, Section 2, Clause 1, gives the President the power to pardon individuals. The language of the law does not explicitly state that a president cannot grant complacency through prosecution. It comes down to the interpretation. Some legal scholars suggest that if it is not in the text, it is not legal.
“No president has the constitutional authority to pardon himself,” said Jared Carter, assistant professor at Vermont Law School.
While no president has yet attempted to pardon himself, in 1974 President Richard Nixon asked the Office of Legal Counsel for an opinion on the matter while entrenched in the Watergate scandal.
“Under the fundamental rule that no one should be a judge in his own case, the president cannot pardon himself,” said Mary C. Lawton, acting assistant attorney general in the Office of Legal Counsel, in a memo on August 5, 1974. Nixon resigned on August 9, 1974.
If Trump were to continue the action before the end of his presidency, the only way to test the legality of self-forgiveness is to be charged with a federal crime. This would, theoretically, most likely be done by President Joe Biden’s Justice Department after he took office on Jan. 20. From there, the case should make its way to the Supreme Court, which would ultimately rule on the legality of a self-determination. Excuse me.
What if Trump steps down and gets pardon from Pence?
This scenario would be similar to President Gerald Ford’s pardon on Nixon after his resignation over the Watergate scandal. Trump could step down before his presidency expires, making Vice President Mike Pence the president. Pence, in turn, was able to pardon Trump.
Importantly, the same constitutional law on pardon prevents a president from pardoning a person who has been impeached. Trump should resignif it were to take effect.
There are a few nuances here. First, the pardon applies to federal crimes, meaning that in this highly hypothetical scenario, a pardon from Pence would mean Trump would not be held responsible for charges related to the Capitol Hill riot. However, he can still be convicted of state crimes, which are currently under investigation by the Manhattan district attorney.
There is a possibility that charges could be brought in Washington DC by Attorney General Karl Racine. In an interview on MSNBC on Monday, Racine said he wants to sue those who spoke at a riot rally, including the president, “according to the DC Code of Incitement to Violence.”
If this scenario were to materialize – again, this is only very theoretical – an attempt to pardon Trump among some voters might sour hopes that Pence would become president in 2024, but bolster his cause with Trump’s base.
And if Trump resigned and Pence immediately pardoned him, at least one attorney has suggested legal trouble.
“Theoretically, [Pence] could open itself to criminal charges for bribery or corruption. If he did, ”said William A. Burck, partner at Quinn Emanuel Urquhart & Sullivan.
Can President Trump pardon the rioters in Capitol Hill?
Yes. On the day the crowd stormed the Capitol, 13 people were arrested. Since then, law enforcement officials have charged dozens of others who traveled to Washington to participate in the post-war riot. Those arrested could be charged with federal crimes and could face up to 10 years in prison.
Trump could pardon or general pardon any individual charged with a crime to anyone who could face federal sanctions for the riot. There is precedent for this massive grace. When President Jimmy Carter took office in 1977, one of his first acts was to forgive anyone who dodged the draft for the Vietnam War.
Can Trump pardon as many people as he wants? Is there a legal limit?
There is technically no limit to the number of pardons a president can grant. Along with Carter’s aforementioned general pardon, President Andrew Johnson pardoned dozens of Confederate soldiers and wealthy Southerners during his tenure.
How many people has Trump pardoned?
Trump has pardoned 70 people so far. This includes former members of his campaign and associates who have made false statements against federal agents, the likes of Michael Flynn, Roger Stone, Paul Manafort, and George Papadopoulos. He also pardoned women’s rights activist Susan B. Anthony and early 20th-century championship boxer Jack Johnson.
Could Trump otherwise pardon before leaving office?
There are still a number of people Trump could pardon for the end of his presidency. The most likely individuals are his children – Ivanka, Don Jr. and Eric Trump – and members of his staff, including personal attorney Rudy Guiliani (who is at risk of losing his New York State Bar Association membership), Chief of Staff Mark Meadows, Senior Advisor Stephen Miller, Personnel Chief John McEntee and social media director Dan Scavino, according to a report from Blomberg. It is also reported that he could pardon a few celebrities, including rappers Lil ‘Wayne and Kodak Black.