The Dangerous Possibilities of Trump’s Pardon Power

In a Rose Garden ceremony last week, Donald Trump described his final Thanksgiving ritual at the White House as “the official Presidential pardon of a very, very fortunate turkey.” The annual theatrics of the President sparing a bird from the fate of its flock provide a humorous performance of a profound power: the ability to grant an exception to the rule of law. In the waning days of a Presidency known for exceptional self-dealing, it seemed seasonable that Trump followed up the symbolic ceremony by actually pardoning Michael Flynn, his former national-security adviser, who pleaded guilty, in 2017, to the crime of lying to federal investigators about his contacts with the Russian Ambassador during the 2016 Presidential transition. The remaining weeks will involve drama about other associates, officials, and family members whom Trump may or may not pardon on his way out, including those who haven’t been convicted or even indicted. The candidates include Trump himself, who has stated in a tweet, “I have the absolute right to PARDON myself.” Whether or not Trump will create, in the coming weeks, the spectacle of the first Presidential self-pardon, Democrats’ desires for accountability may clash with the Biden Administration’s need to move forward and restore normalcy.

Trump’s use of the pardon power since 2017 has largely appeared self-interested, rewarding political support and personal loyalty, and tweaking perceived enemies. He pardoned the former Maricopa County sheriff Joe Arpaio (an early supporter of the birther conspiracy), the conservative publisher Conrad Black (who published a pro-Trump book), the conservative commentator Dinesh D’Souza (who produced films that criticized Barack Obama and Hillary Clinton), and the former Illinois governor Rod Blagojevich (who, Trump said, was prosecuted by “the same people” that Trump associates with investigations of him). His pardon of Dick Cheney’s former aide Lewis (Scooter) Libby appeared to signal that Trump rewards not rolling on one’s boss.

Most disturbingly, Trump has seemed to hold out the possibility of commutations and pardons to associates in order to protect himself against snitching. Trump commuted the sentence of his friend and adviser Roger Stone, in July, after a jury convicted Stone of witness tampering, obstruction of justice, and lying to Congress in the special counsel Robert Mueller’s investigation of Russian interference in the 2016 Presidential election. Whatever Trump and Stone may have said to each other in private, their public comments smacked of a clemency-centered deal. Mueller concluded that Trump’s public statements—including condemning “flipping” and praising Stone’s “guts” for refusing to coöperate—“support the inference that the President intended to communicate a message that witnesses could be rewarded for refusing to provide testimony adverse to the President.” Stone, for his part, told an NBC News reporter that he didn’t want a pardon, which implies guilt, but that he expected a commutation, because Trump “knows I was under enormous pressure to turn on him.”

In these last weeks of his Presidency, Trump will likely use the pardon power to reward other associates who refused to implicate him under prosecutorial pressure. The candidates include his former campaign manager, Paul Manafort, who is serving a federal sentence for financial crimes and witness tampering. Last year, the sentencing judge rebuked Manafort for misleading the court and the prosecutors, implying that she believed Manafort was holding out for a pardon. Trump may also attempt to immunize loyal associates who have not yet been convicted of criminal conduct that may have benefited him, his businesses, or his campaign. Steve Bannon, who has been indicted for defrauding GoFundMe campaign donors in order to divert funds to Trump’s border wall, could receive such a pardon, as could Trump’s children and his son-in-law, who haven’t yet been indicted. Trump’s lawyer Rudy Giuliani has been under federal investigation for possible violation of foreign-lobbying laws, as part of his role in Trump’s attempt to pressure Ukraine to announce an investigation of Joe Biden. Trump was impeached for abuse of power in connection with that effort. Giuliani has reportedly broached with his client the topic of a pardon for himself. All of this amounts to possible bribery, in which Trump exchanges pardons for something of value, namely forbearance from implicating him in crimes. It did occur to the Framers that a President might be tempted to pardon cronies who committed crimes that served his interests; George Mason, a delegate to the Constitutional Convention, worried explicitly that a future President “may frequently pardon crimes which were advised by himself.” But the Framers appear to have thought that fear of impeachment would deter such abuses of the pardon power. We may surmise from experience that they were mistaken.

If Trump does pardon allies like Manafort and Giuliani, it would not be the first time that corruption was suspected in a President’s exercise of the pardon power. After Bill Clinton left office, federal prosecutors investigated whether he had pardoned two fugitives from justice in exchange for campaign contributions. (Giuliani, who, as a prosecutor, had indicted the two men for tax fraud, called the pardons “a disgrace.”) Clinton also pardoned four people who were convicted of conspiracy and bankruptcy fraud, in the nineteen-nineties, as a result of the independent counsel’s investigation of the Clintons’ land deals in Arkansas in the nineteen-eighties. Those pardon recipients included Susan McDougal, who had refused to coöperate with the investigation, but not her husband, James, who did coöperate and implicated the Clintons. Before leaving office, Clinton himself reached a deal with the independent counsel to avoid indictment if he gave up his law license for five years and admitted that he had committed perjury. Clinton also threw in a last-minute pardon for his half-brother, who’d served time for federal drug crimes.

In her book, “Theaters of Pardoning,” from 2019, the legal and literary scholar Bernadette Meyler observes that “Trump has cannily recognized the theatrical power of pardoning.” He has “built pardons on personal dramas and stories” and cultivated suspense—particularly about whether he will pardon himself. Because the Justice Department holds the position that it does not indict sitting Presidents, Trump has been shielded from federal indictment. On leaving office, however, he becomes vulnerable to investigation and indictment for a range of alleged crimes: for obstruction of justice, the facts of which the Mueller Report laid out; for campaign-finance violations, in connection with payments for silence about Trump’s affairs, of which Trump’s former attorney Michael Cohen has been convicted and could provide evidence; or for tax and other fraud crimes. Soon enough, federal prosecutors will have to decide whether to forge ahead with criminal investigations leading to possible charges against Trump. (Cases pursued by state authorities, such as the financial-fraud matters already being investigated by the Manhattan District Attorney and the New York attorney general, could proceed to indictment and trial in coming months or years. In these cases, Trump’s pardon powers would offer no recourse: the President cannot pardon anyone for crimes at the state level.)

At this point, Trump is, in all likelihood, considering two possible self-engineered pardon scenarios, both addressed in a memo from 1974 that the Justice Department’s Office of Legal Counsel provided on whether Richard Nixon could pardon himself. The memo looked askance at a self-pardon, “under the fundamental rule that no one may be a judge in his own case.” But it explained that if the President were to invoke the Twenty-fifth Amendment to declare that he is “temporarily unable to perform the duties of the office,” his Vice-President, upon becoming acting President, could then grant him a pardon. Both before and after the congressional attempt to remove Trump through impeachment, early this year, the Twenty-fifth Amendment was widely discussed, because of concerns about Trump’s mental instability. Trump could have the last laugh, invoking that amendment so that Mike Pence could grant him a pardon.

The act that would be most true to Trump’s narcissistic absolutism about his power would be for him to claim to pardon himself outright. But the legal validity of a self-pardon is far shakier than one that could be issued by Pence as the acting President. No President has attempted to pardon himself, and constitutional scholars are vociferously divided on whether it would be valid, with one side pointing to its conflict of interest, to put it mildly, and the other side observing that neither the constitutional text nor judicial precedent limits the President’s pardon power. If Trump were to try to pardon himself, that act’s constitutionality could be tested if federal prosecutors charge him with crimes and assert in court that the pardon power does not extend to a President pardoning himself. But in the absence of federal charges, a self-pardon may remain legally unchallenged: courts are likely to demur from considering its legitimacy under the constitutional rule that they decide only actual “cases” and “controversies.” In their recent book, “After Trump,” Bob Bauer, a White House counsel under Obama, and Jack Goldsmith, the head of O.L.C. under George W. Bush, propose many legal reforms that the Trump Presidency has shown to be necessary; among them are that Congress should act to make clear that the Constitution does not authorize self-pardon, and to remove any doubt that a President’s exchange of a pardon for anything of value, including influence on testimony, is criminal bribery. Just this week, unsealed court records revealed that federal prosecutors are investigating a possible bribery conspiracy, involving “a substantial political contribution in exchange for a presidential pardon or reprieve of sentence.” The identities of the individuals under suspicion are not public; Trump tweeted that “the pardon investigation is Fake News!”

In a town hall during the election campaign earlier this year, Joe Biden promised “absolutely” not to pardon Trump for any crimes. However unlikely a Biden pardon of Trump may seem, the question arises from the example of Nixon, the only President to receive a pardon. Nixon resigned the Presidency, in 1974, on the eve of his likely impeachment for obstruction of justice, abuse of power, and contempt of Congress. Although his Vice-President, Gerald Ford, testified in his confirmation hearings that he wouldn’t pardon Nixon, because the public “wouldn’t stand for it,” a month after Ford became President, he granted Nixon a “full, free, and absolute pardon” for federal crimes he may have committed during his time in office. The pardon meant that the Justice Department did not pursue an indictment of Nixon, even as several of his former aides were indicted, some of whom, including his Attorney General and his chief of staff, served prison time for participating with him in the Watergate affair or its cover-up.

In Federalist No. 74, Alexander Hamilton highlighted two reasons for the pardon power: to ameliorate the possible injustice of a criminal law that may be too cruel or too severe, and to “restore the tranquility” of the country in critical moments when not doing so may make such restoration impossible later on. President Ford’s proclamation emphasized the latter of these rationales, acknowledging that Nixon was “liable to possible indictment and trial” for his acts in office, but that “the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President.” Doing so would “cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.” The pardon of Nixon was so unpopular with the public that commentators have blamed it for the loss of dozens of Republican seats in the 1974 midterm election and Ford’s defeat, by Jimmy Carter, in 1976.

It is hard to imagine a surer way to ruin Biden’s Presidency than to have it mired in post-traumatic, high-drama controversy over misdeeds of the past Administration, keeping Trump’s term in the front rather than the rearview of our politics. The dilemma puts into sharp relief the core quandary for the coming Administration: how to reconcile the desire not to alienate half the country, who wanted four more years of Trump even after observing him as President, with satisfying the demands of the other half, who voted him out. Biden has signalled through his aides that he is not eager to risk having his Administration’s policy priorities bogged down by the circus-like attention and partisan division that would accompany any federal criminal matters involving Trump and his associates. But the President-elect has also said that he will leave such matters to the Justice Department. In the event that federal prosecutors don’t pursue indictments, it will anger those who want to see Trump brought to justice, particularly if the criminal investigation in New York also does not lead to charges. At the same time, the risks of bringing criminal charges against a recently defeated political opponent cannot be lost on anyone who recoiled from Trump’s craving for criminal investigations of Obama and Hillary Clinton. Bauer and Goldsmith write that “an administration poring over the actions in office of a just-ousted president, and of his administration, looking for crimes, would be a first in American history,” and that it might “threaten to begin a tit-for-tat cycle of recriminations across administrations.” And, of course, there is significant risk that investigations and charges won’t end up becoming convictions, because of insufficient evidence. In that case, those investigations may look like a colossal waste of time and resources; they could also be falsely interpreted as, in Trump’s words about the Mueller Report, a “complete and total exoneration.” Still, Bauer and Goldsmith grant, “It might seem strange to give a president immunity from criminal prosecution for public crimes while in office to avoid destabilizing the presidency, and then to give him a pass on the criminal law after office in order to avoid destabilizing the nation.”

After his short-lived Presidency, Ford reportedly took to carrying in his wallet a passage from a 1915 Supreme Court case stating that a pardon “carries an imputation of guilt; acceptance a confession of it.” Trump will never accept guilt, so perhaps he won’t be eager to receive a pardon, self-granted or otherwise. Nonetheless, his pardons, like many aspects of his Presidency, have exposed the cracks in our rule of law, which have the potential to undo the democracy that it assumes and protects. Pardons, in particular, are essentially proclamations of exceptions to laws—and thus go to the fragile heart of what it means to have a government of laws, not of men. It is natural that a new President committed to restoring legal norms would, despite Trump’s violation of them, wish for the country to simply move on. President Ford poignantly confessed, “I cannot prolong the bad dreams that continue to reopen a chapter that is closed.” However much we might object to the pardons that Trump may issue in the next few weeks, perhaps one method to help insure that the nightmare we’ve been living becomes a blip—the exception to the rule—is to look the other way, to the future.