Roundup: Presidential Pardons

President Trump has begun in earnest an activity typical of outgoing presidents: granting pardons to people convicted of federal crimes. The president’s ability to give clemency was built into our democracy by the framers of the Constitution as a way to correct possible miscarriages of justice. The framers left this power unchecked, and the courts have refrained from constraining it, finding that misuses of the pardon power would be cause for impeachment. So presidents have been known to store up their pardons until the end of their presidency.

President Trump has pardoned former associates convicted of tax fraud, lying to federal investigators, lying to congress, and tampering with witnesses in investigations looking into whether the Trump campaign colluded with Russia to win the 2016 election. He has also pardoned the father of his son-in-law, who was convicted of illegal campaign contributions and tax crimes; war contractors convicted of murdering Iraqi civilians; and Republican politicians convicted of money laundering and campaign finance violations. But the most concerning pardon for analysts is a self-pardon.

So we’ve rounded up some of the best resources on pardons to review the history of this power and how it can and can’t be used.

The Basics

  • Any sitting president can grant a pardon to someone for federal crimes. Presidents cannot give pardons for state crimes.
  • A president can grant a blanket pardon that covers all possible crimes committed by someone during a particular period. Andrew Johnson granted one in 1865 when pardoning all Confederates, and Gerald Ford pardoned Richard Nixon for his crimes in office, perhaps the most notorious use of the pardon before the Trump era.
  • Professor of legal history at NYU Tim Naftali gives a useful overview of the history of the pardoning power and of abuses of it to contextualize Trump’s pardons.
  • The Financial Times also puts the pardoning power into context by explaining how other presidents have used it in the past and where Trump falls.

The Big Question

Can Trump pardon himself?

Scholars disagree on this matter, and the courts have never had reason to rule on this as no president has ever attempted it. University of North Carolina law professor Eric Mueller writes that that is not the question we should ask, but rather that the text of the Constitution should make us ask whether Trump can grant himself a pardon. Mueller then argues that based on the understanding of the word grant in the time of the framers, a pardon is something a president can only grant to someone else, not to himself.

Because the law is unclear on whether or not a president can pardon himself, some have speculated that there could be a scenario in which President Trump resigns shortly before the end of his term, making Vice President Mike Pence the president, who could then grant him a pardon.

Many also wonder whether the president will offer pre-emptive pardons to his children and son-in-law before leaving office. While we don’t know whether that’s something he will do, it is something he can do.

The Bigger Question

If all of this makes you ask yourself whether there should really be a presidential pardon power in a democracy at all, read the analysis of ethicist Scott Davidson, who engages this question from a philosophical perspective.

Next Steps: