As President Trump’s remaining days in office dwindle, get ready to hear a whole lot about the presidential pardon power. And while you’re at it, prepare yourself ahead of time for the outrage you’re going to feel when you fully digest the kicker: between now and noon on January 20, Trump has virtually unlimited power to pardon anyone he wants.
The president’s pardon power comes from the Constitution, which states that “The President … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Get over everything you learned in high school about checks and balances being a central part of the government established by the founders. For the pardon power, there are no checks, as Congress and the courts play virtually no role whatsoever in presidential pardons.
Pardon his friends who have been convicted of federal crimes? Sure! That’s why President Trump was able to pardon Michael Flynn, Trump’s first National Security Advisor, who served for twenty-two days and then resigned because he made false statements to the FBI about being a foreign agent for Turkey. That also includes commuting the sentence of Roger Stone, Trump’s fixer who was convicted of covering up Russian contacts with the Trump campaign during the 2016 election.
Others in the same position could be next. Paul Manafort, Trump’s former campaign chairman, is serving a seven-and-a-half year jail sentence for money laundering, lobbying violations, and witness tampering. Rick Gates, Trump’s former deputy campaign chairman, served 45 days in jail for conspiracy against the United States and lying to investigators. George Nader, a Trump foreign policy adviser, is serving 10 years in federal prison for child pornography crimes. These Trump associates and all others who have been convicted of federal crimes could soon be pardoned.
What about pardoning his associates who haven’t been convicted but are being actively investigated? Yup, no problem there either. That means that Trump loyalists such as Steve Bannon, the White House strategist who was charged with fraud earlier this year, could receive a pardon even before any trial even takes place.
How about pardoning people who have not yet been charged with any crime? Absolutely! Reportedly, there have been discussions about pardons for Trump’s own children and Rudy Giuliani. This smacks of corruption and nepotism to most people. But to those within the Trump cult, the supposed concern is that a Biden administration would go after Trump’s family and close allies for unstated crimes, so Trump needs to pardon them in order to prevent this injustice.
If Trump did this, he would be well within his powers. The Supreme Court stated in 1866 that the pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” The most famous use of this power was one of the first acts that President Gerald Ford took when he pardoned Richard 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.”
It didn’t matter that Nixon hadn’t been charged with any crime (he had been named an “unindicted co-conspirator” in connection with Watergate but not charged). All that mattered was that President Ford had the pardon power and used it. Likewise, if Trump were to pardon his children or anyone else associated with him for crimes not yet charged (or even known), he would be allowed to do so.
Just because Trump has the power to issue these pardons doesn’t mean that he has the right to do so without criticism. Many people, including Republican senators, have already criticized the pardons Trump has already issued. And there would certainly be a loud outcry if Trump started giving out pardons like water, including preemptively pardoning his family and other people close to him. But if there’s one thing we have learned after almost four years of President Trump it’s that he doesn’t really care about this kind of public criticism. In fact, he seems to relish it. So as much as he will be lambasted in the press and in the halls of Congress for what may come, it’s unlikely this pushback will matter at all, especially since he has no election coming up in the near future (if ever again).
To be clear, there are some small limits on the pardon power. Trump cannot pardon people for state crimes. His pardon power also doesn’t have any effect on civil lawsuits, federal or state, that may arise from the pardoned person’s actions. It’s also against the law for the president to accept a bribe in exchange for a pardon, something that is the subject of an active investigation right now.
Less clear is the question of whether Trump can pardon himself. Constitutional law scholars have disagreed about this issue, with some arguing the pardon power is so limitless that a self-pardon is allowed, while others argue the essence of a pardon is giving something to someone else, so a self-pardon violates that basic idea. If anyone is going to test this possible limit, it’s Donald Trump.
But, he doesn’t have to. If he really wants to make sure that he is immune from federal prosecution, he has one trick up his sleeve that would get him what he wants: resigning the Presidency minutes before Joe Biden is sworn in and having new President Mike Pence, in his very limited time as President, pardon him. This would be an outrageously self-serving and corrupt act, but it would be perfectly constitutional.
Despite these very minor exceptions, the bottom line here is clear: The President has almost unfettered discretion to pardon anyone he wants. With just under 50 days left in his term, expect President Trump to use this power repeatedly and without regard to any sense of justice beyond the only thing he ever cares about — what is best for him and those who he considers loyal to him.
Cohen is a professor of law at the Drexel University Thomas R. Kline School of Law.