Chatter about President Trump’s pardon plans is heating up, with top allies to the president publicly calling for him to preemptively grant clemency to confidants, family members and even himself.
In just 50 days, President-elect Joe Biden will be sworn in as president, exposing Trump to a significant legal liability that comes when a president leaves the Oval Office.
Fox News host Sean Hannity, who has frequently had the president’s ear, urged Trump on Monday to issue a self-pardon, framing it as a way to protect himself from politically-motivated charges.
“The president out the door needs to pardon his whole family and himself because they want this witch-hunt to go on in perpetuity. They’re so full of rage and insanity against the president,” he said.
People around Trump are also wondering about pardons, particularly after the president issued one last week to his former national security adviser Michael Flynn, who had pleaded guilty to federal crimes.
Trump’s personal lawyer Rudy Giuliani, according to a report in The New York Times on Tuesday, discussed a pardon with Trump in the last week. Giuliani quickly denied the report.
It’s unclear whether courts would interpret as constitutional a blanket self-pardon by a president.
In 1974, when former President Nixon was considering a self-pardon in the aftermath of the Watergate scandal, the Justice Department (DOJ) issued a memo finding that it would be unconstitutional. Nixon was ultimately pardoned by former President Ford, though he was never charged for his role in Watergate.
Biden has expressed reluctance about pushing a case against a former president but has said that he would ultimately leave the decision up to DOJ officials. But there is pressure from the liberal base for the new administration to go after what many on the left view as a lawless regime.
Republicans say this pressure makes such a self-pardon more likely.
“It would be unprecedented and Democrats would protest. It would probably end up at the Supreme Court,” said Ian Prior, the former deputy director of public affairs for the DOJ. “But based on the Russia investigation and the fact that Trump will be a thorn in the side of Democrats for the next four years as he determines what’s next, there’s a case to be made that he should protect himself against the new administration leveraging its DOJ or FBI against him.”
Trump has been accused of obstruction of justice for his conduct described in former special counsel Robert Mueller’s report. He is allegedly at the center of the hush money scheme that landed his former personal attorney, Michael Cohen, in prison. And ongoing local and state probes into his tax returns could potentially reveal federal crimes that a Biden Justice Department will have to consider.
Hannity cited calls for Trump’s prosecution from former Mueller officials in urging Trump to self-pardon.
“As painful and hard as it may be for the country, I believe the next attorney general should investigate Mr. Trump and, if warranted, prosecute him for potential federal crimes,” Andrew Weissman, a former member of Mueller’s office, recently wrote in a New York Times op-ed.
Rep. Bill Pascrell (D-N.J.) said Trump and members of his administration have “committed innumerable crimes against the United States” and must be “fully investigated” by the next DOJ.
Hannity said such comments show charges against Trump would be politically motivated.
Republicans close to the White House say there hasn’t been much chatter about a pardon. They say they’re doubtful the Biden administration would investigate a political opponent over fears it would tear the country apart.
“This wouldn’t be viewed as a legal matter, it would be viewed as overtly political,” said one Republican close to the White House. “I don’t see it. It’s horrible politics.”
Even some groups that have petitioned the DOJ to investigate Trump are doubtful the Biden administration will take it up.
Paul S. Ryan, vice president of policy and litigation at Common Cause, has written to the DOJ, Federal Elections Commission and the Southern District of New York asking for investigations into campaign finance violations pertaining to Trump’s hush money payments to two women and over the president’s request that Ukraine investigate Biden for corruption.
Ryan said federal officials should feel duty-bound to investigate even when Trump is out of office, but said he fears the political pressure to look the other way will be too great.
“I don’t think politics should play a role, but it probably will,” Ryan said. “I suspect, against my own wishes, that a Biden DOJ will probably not pursue crimes against his predecessor. We have a history in this country of presidents looking the other way and letting bygones be bygones. That’s not good for democracy in terms of election law and future precedent. But Biden may find it necessary for democracy writ large to try and move the country forward.”
Jed Shugerman, a law professor at Fordham University, said there’s little consensus about whether a self-pardon would be constitutional, and he was skeptical that the theory in DOJ’s 1974 memo about Nixon would be accepted by the conservative judges who would have the final say on the matter.
“I think anyone who says that this is clear is not being fair,” he said. “This is an open question.”
He believes that such a pardon could be challenged under the theory that presidential self-dealing would violate the oath to “faithfully execute the Office of President,” but that any legal argument against self-pardons may have a hard time coming up against a conservative Supreme Court majority’s expansive views on executive power.
“All of the arguments about limiting the pardon power face some kind of uphill battle, based on precedent and, frankly, the political leanings of the current court system,” Shugerman said. “Conservative judges, I would say, have a tendency to bend over backwards in favor of presidential power.”
Even if Trump pardons himself and it holds up in court, his immunity will only extend to federal crimes and won’t cover the investigations he’s facing from the Manhattan district attorney’s office, which is seeking nearly a decade of his tax returns as part of a criminal probe, and the New York state attorney general.
But with the potential criminal liability that Trump will face starting next year, some think that the president will see that it’s in his best interest to try a self-pardon anyways.
“Frankly, I would be surprised if he doesn’t pardon himself,” Shugerman said.