“No president has ever had the audacity to try a self-pardon, so we don’t have any precedent for it,” one expert says

By Sean Neumann
December 08, 2020 10:44 AM
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President Donald Trump
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In the final weeks of his presidency, Donald Trump has reportedly discussed the possibility of flexing one of his signature powers by issuing federal pardons to family members and close political allies — and even, perhaps, himself.

Multiple news outlets report that Trump, 74, has discussed the idea of preemptively pardoning his personal lawyer Rudy Giuliani and his oldest children out of an apparent concern over the legal exposure they may face once he leaves office in January.

Neither Trump's kids nor Giuliani has been accused of a crime, though they have been tied up in various civil and criminal investigations at the state and federal level in recent years — most recently over alleged fraud in New York and Trump inauguration spending.

The family insists they followed the law.

The Daily Beast also reported, according to two sources, that the president "casually discussed" the "hypothetical" of pardoning himself. ABC News reported much the same: that Trump and his circle have discussed "hypotheticals" over the months about pardoning himself or his family.

According to The New York Times, Trump has said “he is concerned that a Biden Justice Department might seek retribution” against him by “targeting” Donald Trump Jr., Eric Trump, Ivanka Trump and his son-in-law, Jared Kushner, Ivanka’s husband. (President-elect Joe Biden has maintained he will have no hand in federal investigative decisions.)

NBC News likewise reported, according to sources, that the president had discussed possible pardons for his family — though one source told NBC it was because Trump felt "embattled," according to the outlet, "not because Trump believes he or any of his family members had done anything illegal."

Ivanka and Kushner, both 39, work as senior advisers in the White House, while Don Jr. and Eric help run the president’s family real estate business and are active campaign and cable TV surrogates.

Giuliani denied any pardon discussion to NBC and tweeted that the Times reporting was "lies."

White House Press Secretary Kayleigh McEnany downplayed the reporting last week.

"I’ve heard no mention of any pardons in any conversations I’ve had in the White House other than the pardon of Lt. Gen. Michael Flynn," she said, referring to the president's first national security adviser.

A president's pardon power is vast, at least when it comes to federal crimes and prosecution. Presidents do not have authority over state crimes.

Trump's predecessors also issued controversial pardons in the waning days of their terms, when they were no longer beholden to voters.

“Legally speaking, Trump can pardon his allies and his family,” says Dr. Jeffrey Crouch, an American University professor and the author of The Presidential Pardon Power.

“It would be an abuse of the pardon power if he did so, in my view, but the checks on Trump at this point are fairly weak,” Crouch tells PEOPLE. “He has already lost his re-election bid and has already been impeached. The strongest remaining constraint on Trump granting widespread clemency is the judgment of history.”

The Trump family at the Republican National Convention in August 2020
| Credit: SAUL LOEB/AFP via Getty

Trump would not be alone in such a move.

President Bill Clinton pardoned his half-brother, Roger Clinton Jr., for drug charges in the final days of his presidency after Roger had already served his sentence; President George H. W. Bush pardoned Reagan-era officials over the Iran-Contra scandal; and President George W. Bush used his presidential power to commute a perjury sentence against former administration member Scooter Libby.

All three drew rebuke from their critics, while the younger Bush’s action led to a congressional hearing over the “Use and Misuse of Presidential Clemency Power for Executive Branch Officials” in 2007.

“A presidential pardon for political allies is becoming more common, unfortunately,” says Crouch, noting the most famous presidential reprieve in U.S. history, when Gerald Ford granted Richard Nixon a "a full, free and absolute pardon” for any crimes committed while in office — including Nixon's involvement in the Watergate scandal that drove him from office before he was impeached.

Trump has already commuted sentences for Roger Stone, a longtime friend, and Rod Blagojevich, the former governor of Illinois. He has also commuted the sentences for several high-profile cases in the criminal justice reform movement, which has been a rare bipartisan priority for his government.

From left: Jared Kushner and Ivanka Trump
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Donald Trump Jr. (left) and Eric Trump
| Credit: MANDEL NGAN/AFP via Getty

As for himself, Trump was impeached last December — and later acquitted by the GOP-led Senate in February — on charges of abuse of power and obstruction of Congress in connection with his dealings with Ukraine.

A special counsel's investigation into his ties with Russia during the 2016 election did not accuse him of obstruction of justice in that matter, finding the question too legally thorny and suggesting it would be the province of Congress.

“No president has ever had the audacity to try a self-pardon, so we don’t have any precedent for it,” Crouch says. “Legal scholars disagree about whether it’s possible.”

On one hand, Crouch says experts don’t think it’s possible for Trump to pardon himself “because the president would then be the judge in his own case,” while others believe it could be possible because the “language in Article II of the Constitution granting the clemency power is very broad and doesn’t explicitly forbid a self-pardon, and cases interpreting clemency generally fall on the pro-president side.”

Either way, Crouch says Trump “could very well attempt to self-pardon, but it’s entirely unclear how that would turn out.”