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Explainer

Presidential Pardon Power Explained

Can the president pardon himself?

The Consti­tu­tion gives the pres­id­ent the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeach­ment.” When it comes to redu­cing our prison popu­la­tions, we’ve argued that this power should be used more frequently as a vital mech­an­ism of mercy, temper­ing the often harsh, racist, and inequit­able effects of our crim­inal legal system.

But the pardon power also comes with the risk of abuse. Never has this been more appar­ent than under Pres­id­ent Trump, who has used it to grant clem­ency to people convicted of crimes relat­ing to his pres­id­en­tial campaign. And now, Trump is reportedly consid­er­ing trying to pardon himself for a vari­ety of crimes, which would be unpre­ced­en­ted.

Why is Trump consid­er­ing pardon­ing himself?

The most recent reason is his role in incit­ing the deadly insur­rec­tion at the Capitol Wednes­day, when he told a crowd of support­ers in front of the White House that the elec­tion was stolen and instruc­ted them to “walk down to the Capitol” where Congress was count­ing the Elect­oral College votes. The Justice Depart­ment said that it was not ruling out char­ging Trump for incit­ing a riot, with the U.S. attor­ney in Wash­ing­ton saying, “All options are on the table. … We will look at every actor and all crim­inal charges.”

Since making that state­ment, the DOJ has softened its posi­tion, with one offi­cial call­ing it a “moon­shot” that “there’s any hook for crim­inal liab­il­ity for Trump.”  But even if Trump dodges prosec­u­tion now, noth­ing will stop the Biden DOJ, based on its review of the law and facts, from prosec­ut­ing Trump for incit­ing the riot. And Biden’s attor­ney general pick Merrick Garland condemned Wednes­day’s riots and noted that today’s prior­it­ies, “from ensur­ing racial equity in our justice system to meet­ing the evolving threat of viol­ent extrem­ism,” are ones that he will be devoted.

The other recent reason is illegal elec­tion inter­fer­ence — specific­ally, Trump’s Janu­ary phone call to Geor­gia Secret­ary of State Brad Raffen­sper­ger in which the pres­id­ent asked him to “find 11,780 votes” to change the outcome of the pres­id­en­tial vote in the state.

News of the call promp­ted Reps. Ted Lieu (CA) and Kath­leen Rice (NY) to ask the FBI to open a crim­inal invest­ig­a­tion into the matter, saying that they believe the pres­id­ent has engaged in “soli­cit­a­tion of, or conspir­acy to commit, a number of elec­tion crimes.”

Back in 2017, the Wash­ing­ton Post repor­ted that Trump consul­ted with his advisors on the legal author­ity to self-pardon when he was under invest­ig­a­tion by Special Coun­sel Robert S. Mueller III as part of the Russia probe.

Could Mike Pence pardon Trump if he resigns or is removed from office by impeach­ment or under the 25th Amend­ment?

Yes. The only pres­id­ent who has ever obtained a pardon was Richard Nixon. After he resigned, his successor, Pres­id­ent Gerald Ford, gran­ted him a full pardon for any crimes that he might have commit­ted against the United States as pres­id­ent, shield­ing Nixon from crim­inal charges related to the Water­gate scan­dal.

Would a pres­id­en­tial self-pardon be consti­tu­tional?

The answer is unclear. While neither the text of the Consti­tu­tion nor judi­cial preced­ent expli­citly resolves the matter, a 1974 Justice Depart­ment memo conten­ded that a self-pardon would collide with “the funda­mental rule that no one may be a judge in his own case.” The only way to answer this ques­tion, then, is for Trump to pardon himself and subsequently be indicted for a federal crime for which he had pardoned himself. That, in turn, would create the oppor­tun­ity for the courts to settle the debate.

The bipar­tisan National Task Force on Rule of Law & Demo­cracy has called for Congress to pass a resol­u­tion expressly and categor­ic­ally condemning self-pardons.

How would a self-pardon affect state prosec­u­tions?

The Consti­tu­tion only grants the abil­ity to pardon people of federal crimes, so even if the courts found that the pres­id­ent could pardon himself, it would not excuse him from viol­a­tions of state laws, several of which he is in danger of being prosec­uted for.

Follow­ing the release of Trump’s call with Raffen­sper­ger, where the pres­id­ent may have viol­ated state laws against elec­tion inter­fer­ence, the Fulton County district attor­ney released a state­ment declar­ing that “Anyone who commits a felony viol­a­tion of Geor­gia law in my juris­dic­tion will be held account­able.”

Pres­id­ent Trump is also in legal peril in New York, where he is facing a string of invest­ig­a­tions. The state’s attor­ney general, Leti­tia James, is look­ing into the finan­cial deal­ings of Trump and the Trump Organ­iz­a­tion. And Cyrus Vance Jr., the Manhat­tan district attor­ney, is invest­ig­at­ing the pres­id­ent and the Trump Organ­iz­a­tion on suspi­cion of bank and insur­ance fraud.

Predict­ing that the pres­id­ent might attempt to self-pardon, New York State enacted legis­la­tion in Octo­ber 2019 permit­ting state prosec­u­tions when a person — even Pres­id­ent Trump himself — has received a pres­id­en­tial pardon for federal crimes that could be the basis of state or local crimes.

How has Trump used the clem­ency power so far compared with the past?

Pres­id­ent Barack Obama gran­ted more than 1,700 commut­a­tion requests, more than every other pres­id­ent over the previ­ous half-century combined. Yet 7,881 peti­tions were never reviewed.

Thus far, Pres­id­ent Trump has gran­ted just over 90 pardons and commut­a­tions, primar­ily to his friends and polit­ical allies. And he has talked about adding himself to that list: in 2018, he tweeted, “As has been stated by numer­ous legal schol­ars, I have the abso­lute right to PARDON myself.”

Mean­while, there are thou­sands of people who are poten­tially appro­pri­ate clem­ency candid­ates sitting in federal prison. The Biden admin­is­tra­tion must make more broad-based use of the clem­ency power, which will provide some relief to those serving partic­u­larly harsh mandat­ory sentences, correct for unwar­ran­ted dispar­it­ies among code­fend­ants, and give retro­act­ive effect to recent changes in the law.