Can Trump Pardon Himself, his Family, his Allies and the Insurrectionists?
Apparently Donald Trump is considering pardoning himself, his family members, his attorney Rudy Giuliani, and who knows whom else, maybe the insurrectionists of the last week’s Capitol takeover.
The US Constitution gives a President broad discretion to grant pardons for federal crimes except in cases of impeachment; “he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” US Constitution Article 2, Section 2, Clause 1.
The two obvious limitations are 1) “in cases of impeachment” and 2) “grant”. Since President Trump is in the process of being impeached for inciting an insurrection (although not yet convicted in the Senate), he may not be eligible for a pardon for those offenses encompassed in his impeachment, and he may not be authorized to issue pardons while under impeachment. The use of the words “grant pardons” may preclude self-pardons. Finally the phrase “offenses against the United States” does not allow a President to pardon anyone for offenses against a state or local government.
Frank Bowman writes in “Just Security” that the framers not only did not envision, but did not sanction “self pardons”. https://www.justsecurity.org/73539/why-a-self-pardon-is-not-constitutional/ The Office of Legal Counsel in the Department of Justice has long concluded that a President cannot self-pardon. https://www.justice.gov/file/20856/download
Two distinguished historians looked at the framers’ intent and debates and concluded that a President could not pardon his co-conspirators in a matter concerning impeachment. https://www.theatlantic.com/ideas/archive/2020/07/traditional-interpretation-pardon-power-wrong/614083/
There is a detailed procedure in place for those seeking Presidential pardons. https://www.justice.gov/pardon/pardon-information-and-instructions However, Presidents, if they so choose, can bypass this process, and some have done so, particularly during their last days in office – a time when their responsiveness to the countervailing views of Congress and the American voting public is as its lowest ebb. Some argue that now is the time for a constitutional amendment to restrain a President’s pardon powers as many states already do for their chief executives. https://www.lawfareblog.com/time-amend-presidential-pardon-power
Just before Christmas, Trump issued Presidential pardons for four Blackwater murderers of 14 unarmed, innocent Iraqis, for four of his Russian co-conspirators – Paul Manafort, Rodger Stone, Michael Flynn, George Papadopolous and Alex Van Der Zwaan, for three convicted, corrupt Republican Congressmen – Duncan Hunter, Steven Stockman, and Chris Collins, and for several corrupt campaign contributors convicted of large sums of Medicare fraud. He forgot to pardon the partridge in the pear tree.
In apparent appreciation of their President’s magnanimous pardons, General Flynn, Rodger Stone and George Papadopoulos addressed the DC rallies leading up to the insurrection to overthrow the Presidential election. https://www.cbsnews.com/news/dc-rally-arrests-trump-backers-protest/ General Flynn has been advocating martial law unless Donald Trump is returned for a second term in January and has met with the President to make his case. https://www.thedailybeast.com/when-the-bombs-go-off-the-blood-is-on-mike-flynns-hands-retired-officers-blast-his-calls-for-martial-law, and https://www.cnbc.com/2020/12/22/martial-law-conspiracy-theories-rattle-white-house-as-trump-seeks-to-undo-biden-win.html
The Department of Justice is apparently investigating “someone” connected to an alleged bribery — contributions to the Trump campaign for pardon scheme. https://www.cnn.com/2020/12/01/politics/presidential-pardon-justice-department/index.html
Lucien Wulsin
Dated: 1/13/21