Trump Contemplating Preemptive Pardons

Last-minute pardons have long been a tradition for outgoing presidents, but President Donald Trump may try to expand his clemency powers further than any president has done before. Trump is said to have discussed preemptive pardons for up to 20 family members, aides, allies, and maybe even himself.

As the clock counts down on President Trump’s remaining days in office, questions surfaced regarding his possible last-minute pardoning spree. Speculation about the spree has intensified since Trump pardoned Michael Flynn, his former national security advisor who pleaded guilty in 2017 to lying to prosecutors about his contact with Russia’s ambassador to the US. 

Trump is reportedly seeking pardons for up to 20 family members, aides, and allies, and among those, his eldest three children, Donald Trump Jr., Ivanka Trump, and Eric Trump, his son-in-law, Jared Kushner, and his personal lawyer, Rudolph W. Giuliani, are assumed to be at the top of the list. The pardons will likely be preemptive pardons- which would provide protection against federal offenses, but not state crimes- prior to any charge or conviction. 

However, according to a report from Axios, there seems to be no shortage of pardons available to those in close proximity to the President. One source told Axios that Trump said he would pardon “every person who ever talked to [him].” 

Axios said it was unclear to the aide how serious the President’s comments were, but Axios also described a senior administration official as saying the President was discussing pardons “like Christmas gifts.”

Those close to the President are not the only ones expected to receive these so-called “Christmas gifts;” another high-level name on the pardoning list could shake the foundation of America’s democracy: the President himself. 

New York Attorney General Letitia James (D) predicted on Tuesday that President Trump would step down from office and then have Vice President Pence preemptively pardon him.

“He can preemptively pardon individuals, and the vast majority of legal scholars have indicated that he cannot pardon himself,” James said during an appearance on ABC’s “The View.” “What he could do is step down and allow…Vice President Pence to pardon him.”

“I suspect at some point in time he will step down and allow the Vice President to pardon him,” she later added.

Trump has declared that he has the “absolute right” to issue a pardon to himself, yet the law is largely a grey area considering none of his predecessors have attempted something similar in the past. 

Legal scholars debate on the question of whether Trump can preemptively pardon himself, and assuming that the self-pardon was constitutional, it would not cover criminal violations of state or local laws and offenses for which he was impeached. 

Article I of the Constitution states that “the Party convicted [of impeachment charges] shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.” Simply put, had the Senate convicted Trump for abuse of power or obstruction of Congress, he could not pardon himself for those offenses and he could be tried for them, according to The Hill.

While a self-pardon would potentially position Trump to dodge prosecution for federal crimes committed in or prior to taking office (note that the Supreme Court has held that acceptance of a pardon is not an admission of guilt), he likely remains accountable for obstruction of Congress as well as any state and local crimes, assuming the statutes of limitations have not expired.