Analysis: renewed US speculation raises number of legal and practical questions
Donald Trump’s pardon for his former national security adviser Michael Flynn has ignited speculation that he may be planning a broader swath of pardons in his last weeks in office, especially given – most controversially – his own previously expressed view that it is within his own power to pardon himself.
Trump’s pardon of Flynn, who was convicted of lying to the FBI, follows his commutation of the jail sentence of his ally and self-professed political dirty trickster, Roger Stone.
The renewed speculation, however, raises numerous issues, both legal and practical.
Questions about whether Trump is considering pardons for associates, members of his family and even himself have been driven in large part by his own apparent obsession with the issue, which has been well documented since at least 2017.
According to a CNN report earlier this month, which featured interviews with unnamed former aides, Trump has asked both about self-pardons as well as pardons for his family, even asking if he could issue pardons pre-emptively for things people could be charged with in the future.
“Once he learned about it, he was obsessed with the power of pardons,” the former official told the cable network. “I always thought he also liked it because it was a way to do a favour.”
Trump himself has been explicit about his view he can pardon himself, tweeting in 2018: “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”
As legal experts have made clear as well in recent days, Trump is not facing any active criminal investigation, with the attorney general, William Barr, following US Department of Justice guidelines that a sitting president cannot be charged with a crime.
But can Trump actually pardon himself?
Those legal scholars who believe it is within his power, point to the open-ended text of the clause in the constitution on pardon rights that says: “The president … shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment,” which – theoretically at least – suggests no explicitly described limits on pardon power.
One issue, however, Trump is likely to run into, which he acknowledged himself in his 2018 tweet, is a supreme court ruling dating back to 1915 that concluded that any pardon carries an implicit imputation of guilt. In Trump’s case, this could only be for criminal acts committed in office and could hamper his plans to run again for president in 2024.
That meaning was recognised by Richard Nixon, who was initially wary of accepting the preemptive pardon offered by Gerald Ford at the time of his resignation from the presidency after the Watergate affair, believing himself innocent.
And while legal experts have suggested there is no explicit constitutional prohibition on a president self-pardoning, they point to a justice department memo written in 1974 in the light of the Nixon crisis.
“Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself,” the Office of Legal Counsel wrote in August 1974.
As Keith Whittington, a professor of politics at Princeton University specialising in constitutional theory told the Guardian in 2018: “The president could surely issue a valid pardon to his own associates (though abusing his pardoning power might itself be an impeachable offence).
“It is less clear that the president could issue a pardon to himself. Conceptually, the pardon is an act of mercy, and that would seem to imply that it is only possible to bestow mercy on someone else and so there is an implicit bar against a self-pardon.
“Certainly, attempting to do so could be regarded as an impeachable offence as an abuse of power, but whether a court should ultimately respect the validity of such a pardon is a much more difficult question.”
Finally, even if Trump were to try to pardon himself it might be of only limited value. His power to pardon applies only to federal statutes, still leaving him vulnerable to criminal and civil prosecution in state courts, not least in Manhattan, where Trump and the Trump Organization are under active investigation.
Trump’s pardon plans
Who can President Trump pardon?
The constitution is vaguely worded on the issue of pardon power. Previous presidents have pardoned relatives (Bill Clinton pardoned his brother Roger), aides, businessmen, and Gerald Ford famously pardoned his predecessor, Richard Nixon.
How does it work?
There is an office at the Department of Justice that deals with pardons but it has largely been short-circuited by Trump, who has responded to requests from rightwing allies and celebrities such as Kim Kardashian. Jared Kushner has been put in charge of the pardons issue and some speculate that might mean a pardon for his father, Charles, who was convicted in 2005 of illegal campaign contributions, tax evasion and witness tampering.
So who is in the frame?
Trump has made it clear he still holds a grudge over the investigation into Russian interference in the 2016 election and some names that have come up are related to that. Michael Flynn was pardoned on Wednesday and Roger Stone’s sentence has already been commuted. Others reportedly seeking pardons include campaign advisers Rick Gates and George Papadopoulos. Steve Bannon, his former strategist, who has been indicted for defrauding donors, and Elliott Broidy, a top fund-raiser, have also been mentioned.
Is that all?
Far from it. Lists of names are reportedly circulating. The media has mentioned a plethora of Trump and Trump family associates, and Trump has reportedly asked aides about the issue of pardons for members of his own family, although it is not clear what for. Finally Joe Exotic, the former Oklahoma zoo keeper convicted of hiring a hitman to kill a rival, has apparently also been campaigning to get Trump’s attention in a bid for clemency.