The Detroit Post
Monday, 29 November, 2021

Can Trump Pardon His Family

Daniel Brown
• Saturday, 05 December, 2020
• 7 min read

© Erin Chaff/Pool/Getty Images President Donald Trump speaks in the Diplomatic Room of the White House on Thanksgiving on November 26, 2021 in Washington, DC. But each day brings new reporting about how President Donald Trump might creatively stretch and bend his expansive pardon power not just to protect himself but also to shield his children and his closest associates from future legal problems -- all moves that would test the spirit of the power and legal precedent.

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Ivanka Trump and her husband, Jared Kushner, who worked for him on his campaigns and in the White House. Rudy Giuliani, who sought dirt on Joe Biden from foreign governments and has been Trump's lawyer.

Trump's already pardoned his former national security adviser Michael Flynn, who pleaded guilty twice to lying to the FBI but had not yet been sentenced, for any and all crimes pertaining to the special counsel investigation. Frank Bowman, a constitutional expert at the University of Missouri School of Law, has written a forthcoming study, “Presidential Pardons and the Problem of Impunity,” and traces the history of the pardon power back to the British.

He tells in particular of Charles II, who as King after the Restoration in the 1660s was hard up for cash and having trouble getting money from Parliament. Years later, Parliament found a way to strike impeachment from the pardon power when William and Mary took over the throne.

That phrasing -- “at any time after its commission” -- from 1866, would suggest Trump could pardon people for things they've done that have not yet been prosecuted, as Ford did for Nixon, but not for crimes that haven't yet been committed. The fact that the preemptive pardon presumes guilt has been identified as one flaw of the idea, although Trump has so convinced himself and his followers that the “deep state” has been rigging elections and subverting his presidency that he could easily self-justify that any and all charges brought against him or those closest to him would be a hoax.

“Leaving aside the bad precedent it could create for a cycle of legal retribution after elections, it would be a huge distraction, and convicting a guy who got 70 million votes would be very tough, regardless of the strength of the evidence. It's important, however, to remember that presidential pardons do no good in civil proceedings and state courts, according to Bowman.

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Most of the President's current legal problems are at the state level in New York, where the Manhattan district attorney, Cyrus Vance, is investigating Trump's finances, his tax avoidance, his charity and his involvement in hush money payments to women who have alleged affairs with him. President Donald Trump during an event in the Rose Garden of the White House in Washington, D.C., November 13, 2021 (Carlos Barrio/Reuters) That doesn’t mean he should.

The pardon granted just before Thanksgiving to former Trump national security adviser Michael Flynn, for example, applies to his lies to the FBI, everything covered in his earlier plea agreement, and “any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to” former special counsel Robert Mueller's investigation. President Jimmy Carter granted unconditional pardons to men who evaded the draft during the Vietnam War.

And most famously of all, President Gerald Ford gave Richard Nixon a “full, free, and absolute pardon for conduct related to the Watergate scandal that led to House impeachment proceedings. Pete Williams is an NBC News correspondent who covers the Justice Department and the Supreme Court, based in Washington.

President Donald Trump on Wednesday granted pardons to his former campaign chairman Paul Manafort and former adviser Roger Stone, sweeping away the most important convictions from U.S. Special Counsel Robert Mueller’s investigation into Russian meddling in the 2016 presidential campaign. So far, Trump, who has 27 days left in the White House until President-elect Joe Biden is sworn in on Jan. 20, has issued 70 pardons since taking office.

The Supreme Court said in 1866 that the pardon power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” Most famously, former President Richard Nixon was preemptively pardoned by his successor Gerald Ford in 1974 for all crimes he might have committed against the United States while he was in office.

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In 1977, President Jimmy Carter preemptively pardoned hundreds of thousands of “draft dodgers” who avoided a government-imposed obligation to serve in the Vietnam War. The nation’s founders saw the pardon power as a way to show mercy and serve the public good.

In 2001, former President Bill Clinton pardoned his brother, Roger, who was convicted for cocaine possession in Arkansas. Clinton pardoned about 450 people, including a Democratic Party donor, Marc Rich, who had earlier fled the country because of tax evasion charges.

Some scholars have argued the nation’s founders intended for pardons to be specific, and that there is an implied limit on their scope. Vance, a Democrat, has suggested in court filings that his probe could focus on bank, tax and insurance fraud, as well as falsification of business records.

Trump, a Republican, has called the Vance probe politically motivated harassment. “Never had the discussion they falsely attribute to an anonymous source,” Giuliani said on Twitter on Dec. 1, referring to the New York Times report.

If someone receives a pardon and no longer faces legal jeopardy on the federal level, it may make it more difficult for them to assert this constitutional right. “When people ask me if a president can pardon himself, my answer is always, ‘Well, he can try,’” said Brian Salt, a constitutional law professor at Michigan State University.


President Donald Trump has prepared a sweeping list of individuals he’s hoping to pardon in the final days of his administration that includes senior White House officials, family members, prominent rappers -- and possibly himself, according to people familiar with the matter. The biggest question facing his legal team may be whether the president has the authority to pardon himself, as he has discussed in recent weeks with top aides, according to the people familiar with his conversations.

Preemptive pardons are under discussion for top White House officials who have not been charged with crimes, including Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John Mentee, and social media director Dan Saving. The president’s eldest daughter, Ivanka Trump, her husband, Jared Kushner, who both hold White House positions, are also under consideration, the people said.

He’s also considering a traditional pardon for Albert Piero, who previously worked with the president on real estate deals and was convicted of tax fraud. Other prominent celebrities including rapper Little Yacht and Baltimore Ravens quarterback Lamar Jackson have publicly lobbied Trump to pardon Kodak Black, who said in a now-deleted tweet that he would donate $1 million to charity if the president freed him.

Trump ’s list is currently being vetted by lawyers who are concerned that pardons could create new allegations of obstruction of justice for members of the administration. A self- pardon could shield Trump from prosecution over a myriad of issues his political opponents have suggested could be worthy of prosecution, from his federal income tax filings to hush money payments to an adult film star to his inaugural committee’s spending at venues owned by the Trump family.

Some Democrats have continued to say Trump should face legal scrutiny over the Russian interference campaign during the 2016 election, despite Special Counsel Robert Mueller finding no evidence the president colluded with the Kremlin. And in recent days, Trump has drawn scrutiny over his effort to pressure officials in Georgia to overturn the results of the presidential election there, as well as inciting what became a violent mob that stormed the U.S. Capitol on Wednesday.

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A U.S. Capitol Police officer died of injuries he sustained “while physically engaging with protesters” during the unrest, according to the department. Brian Salt, a professor at Michigan State University College of Law who has written extensively about self-pardons, said it’s not clear whether the president can do it.

Trump ’s pardoning power only extends to federal crimes, meaning he could not protect himself or his family from legal trouble on the state level. Among those pardoned in recent days were Trump ’s 2016 campaign chairman, Paul Manafort, who’d been convicted of financial crimes and illegal lobbying, and Charles Kushner, the real estate developer and father of the president’s son-in-law.

On Nov. 25, he announced by tweet that he had pardoned his former national security adviser Michael Flynn, who pleaded guilty in 2017 to lying to the FBI about his contacts with the Russian ambassador. “The pardon power is one that usually gets a lot of attention” during presidential transitions, says Max Stair, founding president and CEO of the Partnership for Public Service.

“No president has come close to using the pardon power in such persistently self-serving ways,” Goldsmith wrote in an op-ed in the New York Times. Article II Section 2 of the Constitution says presidents “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The President doesn’t need approval from anyone else in the government to issue a pardon.

74, Alexander Hamilton wrote, “The criminal code of every country partakes so much of necessary severity, that without easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” A presidential pardon exempts the recipient from punishment for the crime and offers him or her restoration of any rights that were rescinded for a federal conviction, like the ability to own a firearm.


“All requests for executive clemency for federal offenses are directed to the Pardon Attorney for review, investigation, and preparation of the Department’s recommendation to the President, which is signed by the Deputy Attorney General, for the final dispositions of each application,” the office’s description on the Justice Department website reads. When Trump pardoned former Maricopa County, Arizona Sheriff Joe Armies in 2017, for example, he did not go through the typical Justice Department process before making his decision.

This week, Fox News host and Trump ally Sean Hannity suggested the president should pardon himself, saying on his Nov. 30 radio show, “The president out the door needs to pardon his whole family and himself.” (“I don’t know about his authority to pardon himself but it should not be necessary,” replied his guest, lawyer Sidney Powell, who has advanced spurious claims of wide-ranging election fraud on behalf of Trump in recent weeks.) “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” the memo declared days before Nixon resigned amid the Watergate scandal.

The Supreme Court has never ruled on whether a president can self- pardon, and it would almost certainly set off a legal fight if Trump tried it. But the regulations governing that process don’t interfere with or supersede the president’s constitutional authority on this issue, which mentions nothing about needing to notify the public of a pardon.

In 2003, it came to light that South Dakota governors had granted numerous pardons over decades, the names and records of which had been kept hidden under a 1983 law. It created an uproar in the state, the New York Times reports, and brought attention to the law, which said every document from arrest to conviction could be sealed after a pardon was granted.

In that case, that person could have a presidential pardon in their pocket to use if they ever do get charged with a related crime, but if they aren’t, the public wouldn’t necessarily ever know about it. It is a federal crime if someone “directly or indirectly, corruptly gives, offers or promises anything of value to any public official” to “influence any official act.” Court documents unsealed by a federal judge on Dec. 1 and first reported by CNN show that the Justice Department has been investigating a possible bribery pardon scheme, in which people working on behalf of a federal convict offered to send money as political donations in exchange for a pardon or commutation.

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