Just the Facts... Is it Really Possible for President Trump to Preemptively Pardon Himself and if so
With only days left in his term, President Trump is facing yet another impeachment, among other processes for removing him from office. In fact, the House introduced articles of impeachment earlier this week and plan to vote on those by the week's end. At the same time, other law-makers consider the viability of invoking the 25th Amendment. Amidst these discussions of various allegations and alleged criminal activities, the President has raised a proposed solution to his problems-the "Pre-Pardon." You may recall that after losing the presidential election, Mr. Trump declared his "absolute right" to pardon himself and others close to him, and, in light of last Wednesday's insurrection, such talks can be heard again in certain circles. However, I personally find it hard to imagine a scenario in which one could pardon oneself for a crime(s) for which one has not yet been convicted. Even if it were possible, wouldn't such an action amount to pleading guilty before due process?
Before grappling with these questions, let's take a step back and look at the foundation of the power itself. A pardon is an executive order granting clemency for a conviction. It may be presented "at any time" after the commission of a federal crime. The President's power to pardon is not further restricted other than the crime must have been committed. Wait, let's go back and reflect on those words. "Must have been committed." So a pardon must be based on a crime already committed, and the individual(s) must have been found guilty of that crime and appropriately sentenced, correct? It sounds like it but let's continue.
By definition, a pardon is an expression of the President's forgiveness and is granted in recognition of the applicant's acceptance of responsibility for the crime. Because an individual for whom a pardon has been offered has the right of refusal, the acceptance of that offer is an admission of guilt. Or, as stated in the Constitution, a pardon "carries an imputation of guilt; an acceptance of a confession of it." This discussion should essentially close the door on any further questions regarding the ability of Mr. Trump to pursue a personal pre-pardon since there are no convictions as such, and it would seem rather unlikely that the President would preemptively admit to his own guilt, right? If only it were that easy!
The fact is that the legal and constitutional breadth of the presidential pardon power remains unresolved. Take a look at the following quote "A federal pardon can be issued prior to the start of a legal case or inquiry, prior to any indictments being issued, for unspecified offenses, and prior to or after a conviction for a federal crime." Doesn't that contradict what has already been stated above? It would appear so; however, the Watergate scandal best illustrates this lack of legal and constitutional clarity. In 1974, President Ford pardoned former President Richard M. Nixon for "all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969, through August 9, 1974. This was a preemptive pardon as no charges or indictments had yet been made. And, while many scholars and legal experts question the legality of these actions, President Ford's pardon was never heard by the Supreme Court, leaving significant questions about whether or not preemptive pardons are, in fact, allowable.
But what about a pre-pardon being offered by a sitting president to himself? That scenario has some precedent yet leaves more questions than answers. Again, let's turn to President Nixon's case for our example. Before resigning, Nixon's advisors suggested that he pre-pardon himself as a way of mitigating any charges that would come upon his resignation from office. However, in this case, the Justice Department's Office of Legal Counsel issued an opinion stating that a president could, in fact, not pardon himself. However, that same opinion laid out a scenario that would be legal in which the President would resign from office using the 25th Amendment (sound familiar?), and his Vice President, now President, could pardon him. And, as history illustrates, this is precisely what happened. Since this too was never challenged by the courts, who's to say this couldn't be done again?
Finally, can the President pardon his close friends, family members, and allies? Yes, he can. The Constitution does not explicitly prohibit pardons that may involve self-interest or a conflict of interest, though the act may stir up public angst and protest.
What precisely the President decides to do remains to be seen, but at least we have a better understanding of what options may or may not exist. We also know a bit more about the risks associated with these options. For example, as discussed earlier, Mr. Trump only has clemency powers over federal offenses. In the case of the current tax fraud allegations he is facing in New York, a pardon might help the President dodge the federal offenses, but he would be powerless over the state prosecutors' investigations. The notion of a pre-pardon also raises issues regarding Mr. Trump's image and legacy. Might he choose legal protection over a perceived admission of guilt or, would a preemptive pardon give him and his base yet another opportunity to fight the "wrong-doings" of our federal government? Amongst all of these questions and confusion, one thing remains assured; Mr. Trump will continue to surprise the American people, so stay tuned.
*Contributing Author: Harini Peri