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Can Trump do that? 5 things to know about presidential pardons

Donald Trump
Donald TrumpErin Schaff/Bloomberg

President Donald Trump has talked with advisers about granting preemptive pardons to his children, to his son-in-law, and to his personal lawyer Rudy Giuliani, and talked with Giuliani about pardoning him as recently as last week, according to media reports.

Given the scandals that have plagued Trump’s tenure in office and his past granting of pardons to close associates, observers believe the possibility of more pardons is real. Some believe Trump might even try to pardon himself. Here’s a quick roundup of what you need to know:

Is it legal for a president to grant pardons?

Yes. Article 2, Section 2 of the Constitution provides that the “President shall…have Power to grant Reprieves and Pardons for Offenses against the United States.”

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“A president can pardon anybody. That’s what the Constitution says,” said constitutional scholar Frank Bowman, a professor at the University of Missouri School of Law, though he noted that “through history presidents have issued a number of fairly dodgy pardons.”

What do the pardons cover?

A presidential pardon only provides protection from prosecution for federal crimes, leaving a person open for prosecution by state or local authorities. A pardon does not shield the person pardoned from civil lawsuits.

A pardon is also not a get-out-of-jail-free card forever. It covers only crimes committed up to the point of pardon, Bowman said. Any crimes subsequent to that moment are fair game for law enforcement.

“It can’t be used to avoid state and local prosecutions. It can’t be used to avoid civil liability, and it can’t be used to license future crime,” said constitutional scholar Laurence H. Tribe, an emeritus professor at Harvard Law School.

How broad can it be?

Typically, said Bowman, pardons have specified the category and timeframe of the crimes committed. But there have been cases of exceptionally broad pardons.

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Bowman cited Gerald Ford’s pardon of president Richard Nixon after the Watergate scandal for any crimes he may have committed during his entire presidency, saying it was a move that was “unique in American history.”

He said it wasn’t legally clear whether such a pardon was valid, with some legal scholars arguing that specificity is required in pardons. It was never challenged in court.

Both Tribe and Bowman said they expected broad pardons if Trump’s family is pardoned because the president would not want to detail exactly what he is pardoning them of.

What are the precedents?

In addition to Ford’s pardon of Nixon, other examples of pardons in American history include: president George Washington’s pardon of the plotters of the Whiskey Rebellion, which shielded them from treason prosecutions; president Jimmy Carter’s pardon of thousands of American men who illegally avoided the draft for the Vietnam War; and president George H.W. Bush’s pardon of six of his associates — including the former Defense Secretary Caspar W. Weinberger — for their role in the Iran-contra affair.

President Bill Clinton caused a scandal when, on the last day of his presidency, he granted a pardon to Marc Rich, a wealthy financier and longtime Democratic donor who was considered a fugitive as he had fled the United States to avoid tax charges. Prosecutors in Manhattan investigated whether the pardon had been part of a quid pro quo, but no one was ever charged.

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“The pardon power has been used by many presidents in politically self-serving ways, whether it was George H.W. Bush or Clinton,” said Jack L. Goldsmith, a professor at Harvard Law School. “Pardoning pals has been done before.”

Can Trump pardon himself?

Trump has raised the possibility that he might try to pardon himself. In 2018, he tweeted, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”

Bowman and Tribe both said he was wrong about the law.

Bowman said no president in American history has ever tried it. The Founders, Bowman said, “explicitly decided we’re not having any kings here. ... It’s perfectly clear that they did not mean the person who inhabited that office for a limited term of years would have one of the key attributes of kingship” — being above the law.

He set out a range of arguments in a Just Security blog item, looking closely at the wording and structure of the Constitution and the original understanding of the Founders. “A president who tried to pardon himself would not be relying on some deep, if heretofore unappreciated, reservoir of constitutional authority. He would instead be trying to slither through a heretofore untried loophole,” he concluded.

Tribe said the idea of a self-pardon was “unprecedented” and went against a backdrop of 400 years of legal tradition that “you can’t be your own judge and jury.”

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“If he can basically wave a wand over himself and say, ‘I’m now automatically above the law,’” Tribe said, “that would become a mockery.”

There is another avenue for Trump, however. Bowman has pointed out in an upcoming law review article that Trump could resign, or claim temporary incapacity under the 25th Amendment, thus putting Vice President Mike Pence, a diehard loyalist, in place to give him a pardon.

Tribe envisioned Trump resigning at 11 a.m. on Inauguration Day, an hour before president-elect Joe Biden takes the oath of office, making Pence president just long enough to grant him a pardon.

It would be legal unless there was some outright bribe involved, though Pence would have to consider how it would affect his future political prospects, Tribe said.

Material from Globe wire services was used in this report.



Martin Finucane can be reached at martin.finucane@globe.com.