The president of the United States has vast constitutional power to grant pardons to individuals facing possible prison terms even before charges are filed, or to commute the sentences of folks already languishing in jail. President Donald Trump has at least broached the possibility of using pardons to short-circuit the investigation into whether he or his campaign were involved in Russia’s interference with the 2016 presidential election. (The probe has now produced its first criminal charges.) There’s even talk about whether a president can pardon himself, something that hasn’t been done before.
1. What is a presidential pardon?
It’s an act of presidential forgiveness rooted in Article II, Section 2 of the U.S. Constitution. A pardon wipes the slate clean for the recipient, even halting judicial proceedings that are under way. President George Washington pardoned farmers convicted of treason after the 1791 Whiskey Rebellion; President Grover Cleveland cleared Mormon polygamists in 1894 as part of Utah becoming a state. More recently, President George H.W. Bush pardoned aides tied up in the Iran-Contra scandal.
2. Why are pardons arising as an issue for Trump?
The federal probe into possible collusion between Russia and Trump’s presidential campaign could threaten his inner circle. Charges filed against Paul Manafort, former chairman of the Trump campaign, show the breadth of Special Counsel Robert Mueller’s investigation: Manafort is charged with using real-estate investments to launder money he earned working for Ukrainian politicians. Trump has called the entire matter "a witch hunt" and has made clear he believes Mueller shouldn’t be going beyond the original topic of the investigation -- whether the Trump campaign colluded with Russia’s interference in the 2016 election.
3. Who might Trump pardon?
That’s entirely speculative at this point, and a lawyer for the Trump White House, Ty Cobb, says no pardons are being discussed. But it’s worth noting that members of Trump’s family -- his eldest son, Donald Jr., and his son-in-law, Jared Kushner -- are among those whose contacts with Russians are under scrutiny.
4. Could Trump pardon himself?
Literally, yes. "He could write his pardon down on a napkin and sign it -- that would be a pardon," said P.S. Ruckman, a political science professor at Rock Valley College in Rockford, Illinois, who runs a blog about presidential pardons. Standard procedure for presidents is to let the Justice Department vet possible pardons -- but that’s not required by law, and Trump ignored this step in granting his first pardon, of former Phoenix-area sheriff Joe Arpaio. But some experts say a self-pardon would wilt under a court challenge. They point to legal advice given to President Richard Nixon in 1974 in connection with the Watergate scandal: "Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself," Acting Assistant Attorney General Mary Lawton told Nixon.
5. What does Trump say?
"While all agree the U.S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us," Trump tweeted in July.
6. Isn’t a pardon an admission of guilt?
Not necessarily. "People have traditionally said forgiveness pardons are admissions of guilt, but there are pardons for innocence too," and "pardons for miscarriages of justice," said Margaret Love, who was the U.S. pardon attorney from 1990 to 1997. "There are lots of reasons a president might issue a pardon that wouldn’t involve an admission of guilt." Trump would likely frame any such pardon as a necessary maneuver to avoid the injustice of an investigation into what he has called a fake scandal concocted by his enemies.
7. Would pardons end the Russia investigation?
Since presidential pardons apply to federal crimes, any issued by Trump would significantly hamper the federal investigation being led by Mueller. But state-level investigations could proceed. Manafort, for instance, is also under investigation by the office of New York Attorney General Eric Schneiderman, which also has been looking at Trump’s charity. And a pardon could backfire on Trump: Prosecutors can try to compel pardoned individuals to testify, since they lose some Fifth Amendment protections.
8. Could Trump be impeached for pardoning family or himself?
Members of Congress can start impeachment proceedings against a president for any matters they deem "high crimes and misdemeanors," which can include abusing the powers of the presidency. It’s a political question, not a legal one. At least some Democrats in Congress would no doubt call for impeachment proceedings, but they would need at least some support of Republicans, who hold majorities in both houses.
The Reference Shelf
- A self-pardon would trash the U.S. Constitution, Bloomberg View’s Noah Feldman writes.
- The 1974 Justice Department memo on the question of a president pardoning himself.
- Richard Nixon resigned as president three days after that memo came out.
- Gerald Ford, the next president, pardoned Nixon on Sept. 8, 1974.
- "Pardon Power," a blog by pardon expert P.S. Ruckman.
- QuickTake Q&As on the Trump-Russia probe, the special counsel and impeachment.