Can Trump pardon himself before leaving office? What to know about presidential pardons – CNET

President Trump

What will Trump do before his presidency is over? 

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As president of the United States, President Donald Trump has the power to pardon individuals for federal crimes. Pressure continues to grow for Trump to be impeached or removed via the 25th Amendment for his part in inciting the deadly riot at Capitol Hill on Jan. 6. Meanwhile observers are wondering what he might do to avoid prosecution for any crimes he may be accused of.

Since the president can legally and unilaterally pardon a person for federal crimes, some have questioned whether Trump can — and indeed, would — seek to pardon himself. Trump has reportedly asked aides about the reach of his pardoning power since the November election, which he lost to President-elect Joe Biden.

At least two figures connected with the White House — former Attorney General William Barr and White House counsel Pat Cipollone — have reportedly warned Trump not to attempt a self-pardon, CNN reported Monday. But could he? What kind of pardoning power does a president have and who might Trump pardon next? Here’s what you need to know about a presidential pardon. 

Could President Trump pardon himself?

Trump seeking a self-pardon would be unchartered territory, with no precedent and also no outright rule against it. It appears there is currently no known legal barrier stopping President Trump 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 doesn’t explicitly state that a president can’t grant self-clemency from prosecution. It comes down to the interpretation. Some legal scholars suggest that if it isn’t in the text, then it’s not legal. 

“No president has the constitutional authority to self-pardon,” said Jared Carter, assistant professor at Vermont Law School

While no president has yet attempted to pardon himself, President Richard Nixon did ask the Office of Legal Counsel in 1974 for an opinion on the matter while he was entrenched in the Watergate scandal

“Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself,” Mary C. Lawton, acting assistant Attorney General for the Office of Legal Counsel, said in a memo on Aug. 5, 1974. Nixon resigned on Aug. 9, 1974. 

If Trump were to go through with the action before the end of his presidency, the only way to test the legality of a self-pardon is for him to be charged with a federal crime. This would, theoretically, most likely occur by President Joe Biden’s Department of Justice after he takes office on Jan. 20. From there, the case would have to make its way to the Supreme Court, which would ultimately decide the legality of a self-pardon. 

Hypothetically, could Trump resign and be pardoned by Pence? 

This scenario would be similar to President Gerald Ford’s pardoning of Nixon following his resignation due to the Watergate scandal. Trump could resign before his presidency ends, which would make Vice President Mike Pence the president. In turn, Pence could pardon Trump. 

Importantly, the same constitutional law on pardons prevents a president from pardoning a person who has been impeached. Trump would have to resign before being impeached if it were to take effect.

Vice President PenceVice President Pence

Will Vice President Pence come to Trump’s rescue?

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There are a couple of nuances here. Firstly, the pardon applies to federal crimes, which means that in this very hypothetical scenario, a pardon from Pence would mean that Trump wouldn’t be held accountable for indictments regarding the Capitol Hill riot. However, he could still be convicted for any state crimes, which is currently under investigation by the Manhattan district attorney

There’s a possibility charges could be filed in Washington, DC, by the city’s Attorney General Karl Racine. In an interview Monday on MSNBC, Racine said he’s looking to charge those who spoke at a rally before the riot, which includes the president, “under the DC code of inciting violence.” 

If this scenario were to play out — again this is highly theoretical only — a move to pardon Trump could sour any hopes of Pence running for president in 2024 with some constituents but bolster his case with Trump’s base. 

And if Trump were to resign with Pence immediately pardoning him, at least one attorney has suggested legal trouble.

“Theoretically, [Pence] could be opening himself up to a criminal prosecution for bribery or corruption If he did it,” said William A. Burck, partner at Quinn Emanuel Urquhart & Sullivan. 

Does Trump have the power to pardon the Capitol Hill rioters? 

Yes. On the day the mob stormed the Capitol, 13 people were arrested. Since then, law enforcement charged dozens more who traveled to Washington to participate in the riot after the FBI posted more pictures of suspects. Those arrested could be charged with federal crimes and face time in jail of up to 10 years. 

Trump could pardon each individual charged with a crime or provide a blanket pardon for anyone that could face federal penalties for the riot. There is precedent for this mass pardoning. When President Jimmy Carter took office in 1977, one of his first acts was to pardon anyone who evaded the Vietnam War draft

Can Trump pardon everyone as he wants? Is there any legal limit?

There technically isn’t a limit on the number of pardons a president can grant. Along with the previously mentioned blanket pardon by Carter, President Andrew Johnson pardoned tens of Confederate soldiers and wealthy Southerners during his time in office. 

Who has Trump pardoned so far? 

Trump has pardoned 70 people, so far. This includes former members of his campaign and staff who made false statements to federal agents, people such as Michael Flynn, Roger Stone, Paul Manafort and George Papadopoulos. He also granted posthumous pardons to women’s rights activist Susan B. Anthony and early 20th century championship boxer Jack Johnson

Would else might Trump pardon before he leaves office? 

There are still a number of people Trump could pardon before the end of his presidency. The most likely individuals would be 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 membership to the New York State Bar Association), Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John McEntee and social media director Dan Scavino, according to a report from Blomberg. It’s also reported he could pardon a few celebrities, including rappers Lil’ Wayne and Kodak Black. 

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