President Donald Trump, who recently granted a pardon to former White House national security adviser Michael Flynn, has tweeted that he has the right to grant clemency to himself. Whether that’s true isn’t clear, since it has never been attempted, according to professors from Northeastern.
And though the Supreme Court could ultimately decide the issue, the justices might choose not to consider the matter, professors say.
“Now that there is a strong conservative majority on the Supreme Court, it seems very unlikely that they would consider—much less overrule—any pardons by Trump, including of himself, and absent that, he can basically do whatever he wants,” says Nick Beauchamp, assistant professor of political science.
Talk of pardons heated up recently when the New York Times reported that Trump has talked to advisers about whether to grant preemptive pardons to his children, his son-in-law Jared Kushner, and his personal lawyer Rudolph Giuliani.
Close political allies such as Fox News host Sean Hannity and Florida Congressman Matt Gaetz have encouraged the president to protect himself and those close to him from what they say would be politically-motivated prosecutions.
“President Trump should pardon Michael Flynn. He should pardon the Thanksgiving turkey. He should pardon everyone from himself to his administration officials to Joe Exotic if he has to,” Gaetz said in November on Fox News’s “The Ingraham Angle.”
A self-pardon would shield Trump only from federal prosecution, not state prosecutions, says Daniel Medwed, university distinguished professor of law and criminal justice. “So he could still potentially face state criminal charges for his past actions, depending on the applicable statute of limitations,” he says.
The Manhattan District Attorney’s office has been conducting an inquiry into Trump’s family business and his taxes.
There’s also a possibility, however unlikely, that Trump could resign from office and receive a pardon from now-Vice President Mike Pence, Medwed says.
Many have questioned whether a preemptive move to absolve Trump would be constitutional.
“It’s also unknown whether he will pardon anyone for specific crimes or, as seems more likely, just issue blanket, Nixon-style pardons for anything that may have been done between X and Y dates,” says Beauchamp. After President Richard Nixon left office in the wake of the Watergate scandal, President Gerald Ford issued a broad pardon that covered Nixon’s entire time in office, January 20, 1969 through August 9, 1974.
It’s also unclear whether a Trump preemptive pardon would effectively waive its recipients’ Fifth Amendment rights, and whether people who received a preemptive pardon could still be tried and found guilty in the future—just not convicted or punished, adds Beauchamp.
Also unknown is how a federal pardon would affect state-level prosecutions for the same or related offenses, Beauchamp says.
With less than two months left in his presidency, Trump has granted the fewest pardons of anyone in the Oval Office in modern history, according to Pew Research. As of Nov. 23, the most recent date provided by Pew, he granted clemency 44 times, the lowest of any president since at least William McKinley, who served at the turn of the 20th century. President Barack Obama, by comparison, granted clemency 1,927 times during his two terms.
Obama’s more notable clemency actions included retired U.S. Marine Corps four-star general James Cartwright, who pleaded guilty to lying to the FBI, and Hall of Fame baseball player Willie McCovey, who pleaded guilty to federal tax fraud.
Before Thanksgiving, Trump granted Flynn a “full and unconditional pardon” for making false statements to federal investigators as part of the Russian election interference probe. The president could next turn to a pair of former campaign aides who were also key figures in the Russia investigation, Medwed says.
“I suspect Rick Gates and George Papadopoulos may be candidates for pardons based on the Flynn precedent,” Medwed says. Gates was the 2016 campaign’s deputy chairman, who agreed to work with prosecutors and pleaded guilty to charges of conspiracy and lying to investigators. His cooperation led to a reduced sentence of 45 days in prison, though he was facing as many as six years.
Papadopoulos, a former foreign policy adviser, served 14 days in prison for lying to the FBI.
Trump has already commuted the sentence of longtime political operative Roger Stone, who was convicted of obstructing a Congressional probe into whether people close to Trump cooperated with Russia before the 2016 election. Trump commuted Stone’s sentence in July, shortly before he was to start serving 40 months in prison.
Even politicians across the political aisle have been weighing in on whom Trump should pardon. Hawaii Democratic Rep. Tulsi Gabbard, a former presidential contender, has encouraged Trump to grant clemency to Edward Snowden and Julian Assange, who are facing espionage charges in the United States.
The power to unilaterally wipe the slate clean on someone’s crimes has been a political hot potato for Democratic and Republican chief executives, suggesting a ripe opportunity for reform, says Jeremy Paul, the former dean of Northeastern’s law school who teaches constitutional law, property, and jurisprudence.
“The pardon power has become very dangerous,” Paul says, adding that the question of whether a sitting president can pardon himself will ultimately have to be decided by the Supreme Court.
Paul says the original framers of the Constitution enshrined the pardon power for instances when presidents wanted to show mercy to lawbreakers whose transgressions don’t seem so serious by current standards—or to acknowledge when someone had already paid a substantial debt to society.
“But what they never intended, and what I fear now is available to presidents on both sides of a very polarized country, is the president being able to say to the people in his orbit, ‘Don’t worry, if you get in trouble, I’m going to pardon you,’” Paul says.
Curbing that power, though, would require a Constitutional amendment, a long, arduous process that could further divide red and blue states. Nonetheless, Paul says, “I would like to see some effort to limit pardons.”
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