Can Trump Pre-emptively Pardon Himself? Clemency Power, Explained

  • Politics
  • Can Trump Pre-emptively Pardon Himself? Clemency Power, Explained

Yes. The Constitution does not bar pardons that raise the appearance of self-interest or a conflict of interest, even if they may provoke a political backlash and public shaming.

Shortly before leaving office in 1993, President George Bush pardoned six Reagan administration officials over “their conduct related to the Iran-contra affair,” including Caspar W. Weinberger, the former defense secretary who was about to go to trial on charges that he had lied to Congress. The independent prosecutor, Lawrence E. Walsh, had been planning in the trial to explore whether Bush had played a greater role than he had acknowledged when he was the vice president, and Mr. Walsh accused Bush of a “cover-up.”

In 2001, shortly before leaving office, President Bill Clinton issued several controversial pardons, including to his half brother, Roger Clinton, over a 1985 cocaine conviction for which he had served about a year in prison, and to Susan H. McDougal, a onetime Clinton business partner who had been jailed as part of the Whitewater investigation.

This is unclear. Usually, pardons are written in a way that specifically describes which crimes or sets of activities they apply to. There is little precedent laying out the degree to which a pardon can be used to instead foreclose criminal liability for anything and everything.

Notably, Ford’s “full, free and absolute pardon” of Nixon was extraordinarily broad. It covered all federal crimes Nixon “committed or may have committed” during his presidency, rather than listing particular matters or categories of activities. But because prosecutors did not try to charge Nixon, the validity of this rare, open-ended clemency was untested.

In a law journal article this year, Aaron Rappaport, a law professor at the University of California, Hastings, argued that pardons must be specific about what they are covering. He cited English common-law principles that informed the founders’ understanding of pardons, as well as fundamental democratic values. Still, he also acknowledged that “the existence of a specificity requirement has never been acknowledged by the Supreme Court.”

This is unclear. There is no definitive answer because no president has ever tried to pardon himself and then faced prosecution anyway. As a result, there has never been a case that gave the Supreme Court a chance to resolve the question. In the absence of any controlling precedent, legal thinkers are divided about the matter.

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