It is the sign of every outgoing presidency: slightly controversial pardons for political allies facing federal charges. A sign that the Trump White House is preparing to wind down is the deafening whispers about who the president will pardon and when.
The major difference for President Donald Trump is not that he is planning to issue these reprieves from criminal charges. It is who he plans to pardon and how. Reports show that he may be planning to preemptively pardon his three oldest children, his son-in-law, and his personal attorney, Rudy Giuliani.
While that move may be politically unpopular, preemptive pardons are not unprecedented. Perhaps most famously, President Gerald Ford pardoned President Richard Nixon for his conduct in the Watergate scandal before Nixon had been charged with any crimes.
"Certainly there's an optics issue and it creates this appearance of impropriety, that you know that you 100 percent did something wrong," said Ariel Alvarez, associate professor of political science and law at Montclair State University. Preemptive pardons are "somewhat uncommon" he noted, "but they've been done before."
Lessons From the Past
The Constitution gives the president broad authority to issue pardons and commute sentences for federal crimes:
"The President ... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment."
That clear-cut language makes the pardon power basically the only power granted to a branch of government that cannot be checked by either of the other branches. Neither Congress nor the court system can undo a pardon.
The power as we know it today dates back to the presidency of Abraham Lincoln. The combination of the broad nature of the power and "Honest Abe's" natural generosity made for a liberal use of the pardon power, which rubbed Attorney General Edward Bates the wrong way.
"[Bates] thought the kind-hearted Mr. Lincoln was far too generous with his pardoning and he said, 'You can't be trusted. Mr. President. Everybody comes through me,'" said Margaret Love, a lawyer specializing in pardons. Love served as pardon attorney in the Clinton administration's Department of Justice.
Ever since then, the DOJ has had a role in the process. The process normally goes something like this: ordinary people in the criminal justice system submit an application for a pardon to the Office of the Pardon Attorney asking either for a commutation of their sentence or a full pardon.
The pardon attorney then investigates that claim. That process includes an FBI background check and is designed to make sure that the person to be pardoned will not embarrass the president if ultimately a pardon is issued. The pardon attorney then makes a recommendation and sends it up through the political appointees at the DOJ before it is sent to the White House. The White House Counsel's Office then ultimately accepts or rejects the recommendation.
At least that is how it is supposed to work. Love said the process broke down during the Clinton years because the DOJ had become committed to the "war on crime" and took pardons as a commentary on their work.
That led to Clinton pardoning many more people at the end of his presidency than at the beginning. Normally, presidents spread out their pardons across their entire term. A third of all his pardons occurred on his last day in office, Jan. 20, 2001, creating what has been called "Pardongate."
Love said Presidents George W. Bush and Barack Obama had more normal patterns of using their pardon power, but underlying problems with the mechanism itself still make the process nebulous for the average person. The last four years, though, have gone differently.
"Well, now we come to Trump and you know, the whole thing has just gone out the window," she said.
Can He Pardon Himself?
Presidents often wind down their time in office on pet projects and Trump will be no different. When it comes to presidential pardons though, he has already charted a unique course. There is obvious precedent for controversial pardons from the Resolute Desk. Now it's conceivable Trump may try to pardon himself, despite not currently facing any federal charges, something that has never been legally tested.
Such a move would not fall too far outside Trump's use of the pardon power so far. Rather than abide by the normal application and vetting process run by the Department of Justice, the president's most high-profile pardons and commutations have been of close allies, partisan figures, and those brought to light by celebrities.
Still, legal scholars disagree about whether or not he can even issue a pardon for himself.
"I don't think he can," Love said. "I think that the structure and the wording of the Constitution, but particularly the structure, says no."
Others, though, believe the U.S. Constitution's text on presidential pardons does not preclude a self-pardon if a president so wishes.
"Article II, Section 2 provides that the 'President shall…have Power to grant Reprieves and Pardons for Offenses against the United States.'," attorney and CEO of LegalAdvice.com David Reischer explained in an email. "This language is not qualified with any exceptions, and therefore it has generally been believed the president can indeed pardon oneself."
While Reischer explains that a self-pardon by a president is arguably legal, it's legality has never been tested and would likely face court challenges.
"The decision whether a president can pardon himself would probably need to be decided by the Supreme Court," Reischer suggested.
Alvarez said he thinks an attempt at a self-pardon would provoke immediate impeachment in the House of Representatives. That will not be an option, however, if Trump were to try a self-pardon in his last days, especially his very final day in office, January 20, as a final act of his presidency. In such a case, the incoming Biden administration could intervene and prevent the pardon from being processed.
"[T]hat's kind of the way it works," Alvarez said. "The president issues a pardon, it gets processed by the Justice Department. If you have a new administration coming in, and other people taking over, that's a possibility, if he does it on his last day in office."
On January 20, 2021, at 12:00 p.m. ET Trump will no longer be president, but his final acts could define his political ambitions well into the future. Rumors of a run for the presidency again in 2024 abound.
Trump has weathered arguably more controversial acts than this and faced no backlash from his fiercely loyal base. There is no indication that pardoning himself or his children would be any different.
What he cannot protect himself from, though, is prosecution at the state level. While he can attempt to make himself immune from charges once he leaves office, a federal presidential pardon will not exempt anyone, president or otherwise, from facing indictments in state or local courts.
"A pardon only immunizes a person from federal prosecution but any of the 50 states could still prosecute a president, especially one that pardons himself," Reischer said.
Legacy of Trump's Pardons
Love, the former pardon attorney at the DOJ, said that while Trump's use of the pardon power to help allies, and potentially himself, is incredibly problematic (and possibly illegal on the self-pardon front). What's more problematic is that he has gone around the normal pardon process and created a separate process based on personal connections and prestige.
"Look, there's nothing unique about any President Trump's grants," she said. "They all have some sort of precedent in our history. Each one of them does. But what is unique is that he, of all presidents, has ignored the regular party process that is open to ordinary people."
"[The pardon] process was created to give ordinary people access to power that it at least looked fair, that everybody had a shot," she said. "And so that gave people a degree of confidence in it. This president has totally bypassed and neglected and ignored that regular route to his power, and that's what makes his work different."
Ultimately, Love said, the pardon power itself is here to stay. Trump has not done irreparable harm to our institutions through the pardon power, but he has highlighted the opportunities for abusing the unchecked power.
"I really welcome this attention that President Trump has brought to the potential for abuses," Love said. "I don't regard any of President Trump's pardons as fatal to our institutional survival. I honestly couldn't care less about Michael Flynn. Really. It's just theater. That's all."