U.S. President Donald Trump speaks during a videoconference with members of military in the Diplomatic Room of the White House in Washington, D.C., on Nov. 26, 2020.
Erin Schaff—The New York Times/Bloomberg/Getty Images
By Tessa Berenson – Time.com
Donald Trump has less than 50 days left in his presidency. The transition process has formally begun for President-elect Joe Biden, and Trump has retreated from the public eye and largely stepped back from presidential duties since Election Day as he continues to make baseless claims that the election is rigged.
But there’s one presidential power Trump can still use with wide discretion until Inauguration Day on January 20: the pardon power.
Trump has already signaled he may pardon allies on his way out the door. On Nov. 25, he announced by tweet that he had pardoned his former national security adviser Michael Flynn, who pleaded guilty in 2017 to lying to the FBI about his contacts with the Russian ambassador.
It’s not unusual for presidents to issue controversial pardons during a transition period, experts say. In December 1992, for example, President George H.W. Bush pardoned six defendants in the Iran-Contra affair. During his last week in office in 2001, President Bill Clinton pardoned financier Marc Rich, who had been indicted for tax evasion and tax fraud, and whose ex-wife had given large donations to the Clintons. “The pardon power is one that usually gets a lot of attention” during presidential transitions, says Max Stier, founding president and CEO of the Partnership for Public Service.
But Trump in particular has wielded this power to benefit his allies and people he knows personally. As of Nov. 10, Jack Goldsmith, co-author of “After Trump: Reconstructing the Presidency,” calculated that of the 41 pardons or commutations Trump issued during his presidency at that time, 88% had a personal or political connection to him. “No president has come close to using the pardon power in such persistently self-serving ways,” Goldsmith wrote in an op-ed in the New York Times.
Flynn is the only person to receive a pardon since Trump’s electoral defeat. It remains to be seen who else might receive one in the final days of this presidency. Here are the answers to five important questions about the scope — and limits — of presidential pardon power.
Who can Trump pardon?
In short: pretty much anyone. Presidents have very broad authority to issue pardons for federal crimes. Article II Section 2 of the Constitution says presidents “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The President doesn’t need approval from anyone else in the government to issue a pardon. Defending the presidential pardon power in The Federalist Papers No. 74, Alexander Hamilton wrote, “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
A presidential pardon exempts the recipient from punishment for the crime and offers him or her restoration of any rights that were rescinded for a federal conviction, like the ability to own a firearm. It doesn’t provide absolute immunity: the person could still face state charges or federal charges for other crimes. But the president can also pardon people who haven’t been formally charged with a crime yet. Perhaps most famously, President Gerald Ford pardoned President Richard Nixon for Nixon’s conduct related to the Watergate scandal, even though Nixon had not yet been charged with any crimes.
In general, people seeking presidential pardons submit applications to the Office of the Pardon Attorney in the Justice Department for evaluation. “All requests for executive clemency for federal offenses are directed to the Pardon Attorney for review, investigation, and preparation of the Department’s recommendation to the President, which is signed by the Deputy Attorney General, for the final dispositions of each application,” the office’s description on the Justice Department website reads.
But as a legal matter, the President can unilaterally pardon anyone he wants, with or without the recommendation of this office. When Trump pardoned former Maricopa County, Arizona Sheriff Joe Arpaio in 2017, for example, he did not go through the typical Justice Department process before making his decision.
Can Trump pardon himself?
Legal experts disagree about whether Trump could pardon himself, and no president has ever tried. But Trump has raised that possibility: in 2018, Trump tweeted that he had the “absolute right” to do so during special counsel Robert Mueller’s probe into Russian interference in the 2016 election.
This week, Fox News host and Trump ally Sean Hannity suggested the president should pardon himself, saying on his Nov. 30 radio show, “The president out the door needs to pardon his whole family and himself.” (“I don’t know about his authority to pardon himself but it should not be necessary,” replied his guest, lawyer Sidney Powell, who has advanced spurious claims of wide-ranging election fraud on behalf of Trump in recent weeks.)
In January 2018 during the special counsel investigation, Trump’s lawyers, Jay Sekulow and John Dowd, suggested Trump might have the power to do so in a 20-page letter to Mueller, claiming that the Constitution allows the President to “terminate the inquiry, or even exercise his power to pardon if he so desired.” They did not explicitly state that Trump could pardon himself, but the wording of the letter left open that possibility.
In the past, the official position of the executive branch was that a president could not self-pardon. A self-pardon would run afoul of a bedrock legal principle in the United States, according to a 1974 memo written by the Office of Legal Counsel under President Nixon. “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” the memo declared days before Nixon resigned amid the Watergate scandal.
The document does acknowledge there could be a loophole, however: “If under the 25th Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President,” it says. “Thereafter the President could either resign or resume the duties of his office.”
The Supreme Court has never ruled on whether a president can self-pardon, and it would almost certainly set off a legal fight if Trump tried it.
Can Trump pardon his family members?
Yes, it would be legal for Trump to pardon his family members, as Hannity suggested he do. It has happened before: In 2001, amid a slew of pardons his issued on his final day in office, President Clinton pardoned his half-brother Roger Clinton for drug charges.
Can Trump pardon people in secret?
In theory, yes. Pardons are typically vetted by the Office of the Pardon Attorney in the Justice Department. But the regulations governing that process don’t interfere with or supersede the president’s constitutional authority on this issue, which mentions nothing about needing to notify the public of a pardon.
There’s a real historical example of a secret pardon scandal on the state level. In 2003, it came to light that South Dakota governors had granted numerous pardons over decades, the names and records of which had been kept hidden under a 1983 law. It created an uproar in the state, the New York Times reports, and brought attention to the law, which said every document from arrest to conviction could be sealed after a pardon was granted.
But that’s a state law, so it wouldn’t work the same way in the White House. If a recipient of a presidential pardon were subsequently indicted, the pardon would be revealed during the proceedings. In 2017, a Democratic congressman introduced a bill that would force the White House to announce the recipients of presidential pardons, over fears that Trump would quietly issue pardons to his aides and family members involved in Mueller’s investigation.
But “long-term secrecy is not the danger because if authorities ever attempt to file charges or pass a sentence, the pardon would come to light,” Illinois Rep. Raja Krishnamoorthi, who introduced the bill, told TIME in a statement at the time. (The bill was then re-introduced in 2019 after it didn’t receive a vote in a previous session of Congress, but it hasn’t passed.)
The way a pardon could stay under the radar is if Trump pardons someone before they’ve been charged with a crime. In that case, that person could have a presidential pardon in their pocket to use if they ever do get charged with a related crime, but if they aren’t, the public wouldn’t necessarily ever know about it.
Can Trump accept money in exchange for a pardon?
No. It is a federal crime if someone “directly or indirectly, corruptly gives, offers or promises anything of value to any public official” to “influence any official act.” Court documents unsealed by a federal judge on Dec. 1 and first reported by CNN show that the Justice Department has been investigating a possibly bribery pardon scheme, in which people working on behalf of a federal convict offered to send money as political donations in exchange for a pardon or commutation.
The documents are redacted so it isn’t apparent who is involved in this conduct or how much the White House may have known about it. Trump blasted the investigation on Twitter Tuesday night as “Fake News.”