Among the many problems facing President-elect Biden and his incoming administration is whether to pursue the investigation and possible prosecution of President Trump and aides for federal offenses. Trump has hinted at a possible solution: The issuance of pardons for past, ongoing and even prospective wrongdoing by his associates, family members – and even himself.
Issuing such pardons would establish a troubling precedent for future presidents or other wayward leaders, including governors, who wield similar authority. That’s less likely to be a problem in Minnesota, where a three-person board made up of the governor, the attorney general and chief justice of the state Supreme Court make such determinations under narrow guidelines set by state law.
At the federal level, the U.S. Constitution gives the president broad power. The sole restrictions are that it applies only to federal wrongdoing and not to violations of state or local laws, and it expressly does not extend to impeachment.
Otherwise, the pardon power is virtually unrestricted. It has been exercised under varied circumstances by presidents through the years, some 20,000 times in the last century alone. President Obama was the pardoner-in-chief; he exercised his power to pardon, or grant clemency or related relief 1,715 times, more than the combined total of his five immediate predecessors. That still is a far cry from the 3,687 issued by President Franklin Roosevelt during his 12-plus years in office.
Despite some high profile and controversial pardons, such as those of former Maricopa County Sheriff Joe Arpaio, conservative commentator Dinesh D’Souza and publishing magnate Conrad Black, President Trump has exercised the power sparingly, only 44 times so far. Trump also commuted the sentence of political operative Roger Stone and former Illinois Gov. Rod Blagojevich.
One troublesome feature of the projected Trump pardons is that some of them might be prospective, unlike the conventional situations in which pardons are granted, or clemency exercised, after criminal charges have been brought or convictions obtained. Some of those who have been the subjects of such speculation, including the president himself, have not been charged with any offenses, let along convicted.
But that’s not actually a bar to prospective pardons. In a case more than 150 years ago involving a Confederate politician, the U.S. Supreme Court held that the presidential pardon power may be exercised before any charges are pending. Minnesota is different. It restricts pardons to convicted offenses.
The most notable federal example was President Ford’s pardon of President Nixon within a month after Nixon resigned. It pertained to offenses for which the former president had not been criminally charged or convicted.
But the post-Civil War case contains an important limitation on potential pardons bandied about by the White House. The High Court there noted that a pardon may be issued for an offense “after its commission,” but before charges are brought. This suggests that a blanket pardon could only extend to prior misbehavior, not conduct not yet occurring.
The prospect of the president pardoning himself has been advanced by Trump acolytes like Rudy Giuliani, who has changed his position so many times it’s difficult to guess what the Trump team’s current thinking actually is.
The president has asserted – by tweet – that he has “the absolute right to pardon myself,” a view at odds with many legal experts, including Harvard Law School’s Lawrence Tribe.
A Trump self-pardon also would conflict with the position taken by the Justice Department’s Office of Legal Counsel (OLC), which opined just three days before Nixon’s resignation that such an action would be invalid because “the president cannot pardon himself.”
A Pence Pardon?
While lawyers and scholars debate whether a president can pardon himself, another device has been suggested: That the president step down ala Nixon, elevating Vice President Pence, who would then pardon the former president. That device might work, but it would create a political stench that could be hard to cleanse.
But regardless of President Trump pardoning himself or arranging it to be done by his underling, there is no dispute that pardons can be issued to family members and supporters of the chief executive. Indeed, Abraham Lincoln, to whom Trump has compared himself, issued one to his wife Mary’s sister, a widow of a Confederate general.
Here is one more troubling wrinkle to the problem: The reasoning underlying such actions could permit future presidents, upon their inauguration, to issue themselves and their acolytes a free pass for any offenses they might commit in the next four years, or thereafter. It would undermine the concept of a nation of laws, not of men and women. That’s reminiscent of what’s going on right now in Russia, where parliament is advancing a bill that would shield President Vladimir Putin and his family from prosecution after Putin leaves office.
A leader taking the law into his own hands, literally and figuratively, is not unprecedented. In 1802, Napoleon Bonaparte grabbed the crown at a ceremony with the pope and crowned himself emperor of France, preceding by a few years his forlorn invasion of Russia, which precipitated his ouster after the Battle of Waterloo.
Trump, as he famously explained in justifying his firing early in his term of FBI Director James Comey, had his “this Russia thing” hovering over his tenure. Pardoning himself could be the crowning blow in his tainting of the presidency.
Marshall H. Tanick is a constitutional law attorney with the Twin Cities law firm of Meyer Njus Tanick.
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