The possibility of President Donald Trump preemptively pardoning himself, his family and his allies has been floated as the Electoral College looks likely to confirm that his time as president ends in January.
While Trump has not said he will attempt to grant any of these potential pardons, people are still discussing whether he could even legally do so. This opens the discussion of how far his authority to grant pardons extends.
THE QUESTIONS
Can President Trump preemptively pardon people? Can he pardon people broadly? Can he pardon himself?
THE ANSWERS
There is precedent to pardoning someone before a conviction or a formal investigation, so he can definitely do that.
The other two questions may be up to the courts to decide if it comes to it, but it’s possible.
WHAT WE FOUND
The president’s authority to grant pardons is derived from the Constitution, specifically in Article II Section 2. That section says the president "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."
That’s all there is in the Constitution. The president can grant pardons for federal crimes, but can’t do so to prevent impeachment.
Further information about presidential pardons can be found on a Justice Department web page. That page explains pardons can only be granted for federal crimes, not state crimes. It also says "bear in mind that a presidential pardon is ordinarily a sign of forgiveness and is granted in recognition of the applicant's acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or release from confinement. A pardon is not a sign of vindication and does not connote or establish innocence." While it has no legal bearing on your guilt, accepting a pardon is often perceived as accepting guilt. But that doesn’t necessarily mean you have to be convicted of a crime before you can be pardoned.
The most famous instance of a president pardoning someone before they had been convicted was when President Gerald Ford pardoned former President Richard Nixon in 1974. His pardon proclamation said he granted a "full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974."
A 1975 federal court case, Murphy v. Ford, upheld that pardon and in doing so cited a quote from the 1866 Supreme Court: "[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 . . . . The benign prerogative of mercy reposed in [the President] cannot be fettered by any legislative restrictions." The justice who said that, Stephen Field, even called the power unlimited except in cases of impeachment.
That interpretation gives the president broad pardoning authority. But legal expert and University of Missouri professor Frank O. Bowman did mention one limit on preemptive pardons. "A president can pardon someone for conduct that occurred before the pardon, but not for conduct that occurred after the pardon (or that is ongoing from before the pardon and continues after it)," he told VERIFY in an email.
That means that while a president can pardon someone for crimes they haven’t been charged with or investigated for as of yet, the president can’t pardon someone for crimes they will commit or are committing.
Bowman said the permissibility of a broad pardon for all crimes is less certain. While Ford gave Nixon a broad pardon, "the Nixon pardon was never challenged on overbreadth grounds, and there are some who argue that more specificity is required." Still, he thinks that the Supreme Court would favor the president in this case. "If I had to bet, I’d bet that a blanket pardon is constitutionally permissible."
Last month, Bowman published a paper titled "Presidential Pardons and the Problem of Impunity." In the paper’s abstract he said, "A president cannot constitutionally pardon himself, though the point is untested." He described that it’s theoretically possible a president temporarily withdraw from office and have his vice president into acting president to pardon him before resuming office, but he felt the chance of such a thing happening was "improbable."
He clarified in an interview over Zoom that a president pardoning themselves has never been legally tested. "Nobody in the history of Anglo-American law has ever tried it, including kings and queens," he said. So even if it hasn't been tested, there isn't precedent to suggest it's legally permissible.
Finally, he noted in the interview that a person who accepts a pardon loses their 5th Amendment rights to not make self-incriminating testimony in a relevant federal crime because they can't be incriminated for that federal crime anymore. He said if a pardoned person can make an argument that testimony would be self-incriminating for a state crime, they can still plead the fifth.
BOTTOM LINE
A president can pardon someone before a conviction or even an official investigation begins. However, a president cannot pardon someone for a crime they haven’t committed yet or are currently committing.
The president’s ability to pardon someone broadly for all crimes isn’t entirely certain. When Nixon was pardoned for all crimes that he would have committed during his presidency, it wasn’t challenged. It’s possible the Supreme Court would favor the president if such a pardon was challenged legally.
It's unlikely a president can pardon themselves, although it is technically untested. Additionally, potential loopholes in using the 25th Amendment have not been tested.
Regardless, it’s not guaranteed that Trump will even try to pardon himself, his family or his associates. He has tweeted that the “Pardon investigation is fake news!”
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