Trump said to be mulling self-pardon
Power that he’s long claimed has never been tested in courts
President Donald Trump has suggested to aides he wants to pardon himself in the final days of his presidency, according to two people with knowledge of the discussions, a move that would mark one of the most extraordinary and untested uses of presidential power in American history.
In several conversations since Election Day, Trump has told advisers that he is considering giving himself a pardon and, in other instances, asked whether he should and what the effect would be on him legally and politically, according to the two people. It was not clear whether he has broached the topic since heincited his supporters Wednesday to storm the U.S. Capitol in a mob attack.
Trump has shown signs that his level of interest in pardoning himself goes beyond idle musings. Hehaslongmaintained hehasthe power to pardon himself and his polling of aides’ views is typically a sign that he is preparing to follow through on his aims. He has also become increasingly convinced that his perceived enemies will use the levers of law enforcement to target himafter heleaves office.
No president has pardoned himself, so the legitimacy of prospective self-clemency has never been tested in the justice system and legal scholars are divided about whether the courts wouldrecognize it. But they agree a presidential self-pardon could create a dangerous new precedent for presidents to unilaterally
declare they are above the law and to insulate themselves from being held accountable for any crimes they committed in office.
A White House spokesperson did not respond to a request for comment.
Trump has considered a range of preemptive pardons for family, including his three oldest children — Donald Jr., Eric and Ivanka — Ivanka Trump’s husband, senior White House adviser Jared Kushner, and for close associates like the president’s personal lawyer RudyGiuliani. Trumphas expressed concerns to advisers
that a Biden Justice Department might investigate all of them.
Trump, who has told advisers how much he likes having the power to issue clemency, has for weekssolicited aides andallies for suggestions on whom to pardon. He has also offered preemptive pardons to advisers and administration officials. Manyweretaken aback because they did not believe they were in legal jeopardy and that accepting his offer would be seen as an admission of guilt, according to the two people.
Presidential pardons apply only to federal law and provide
noprotection against state crimes. They would not apply to charges that could be brought by prosecutors in NewYorkinvestigating the Trump Organization’s finances.
The discussions between Trump and his aides about a self-pardon camebefore his pressure over the weekendonGeorgia officials to help him try to overturn election results or his incitement of the riots at the Capitol. Trump allies believe that both episodes increased Trump’s criminal exposure.
As aides urged Trump to issue a strong condemnation Wednes
day and he rejected that advice, the White House counsel, Pat Cipollone, warned Trump that he could face legal exposure for the riot given that he had urged his supporters to march to the Capitol and “fight” beforehand, according to people briefed onthe discussion.
Beyond that, the extent of Trump’s criminal exposure is unclear. Special counsel Robert Mueller outlined 10 instances in which Trump may have obstructed justice but declined to say whetherTrumpbrokethelaw, citing legal andfactual constraints of prosecuting a sitting president. Former Justice Department officials and legal experts said that several of the acts should be prosecuted.
In 2018, federal prosecutors in New York named Trump as a conspirator in an illegal campaign finance scheme.
Aself-pardon would align with Trump’s unprecedented use of the pardon power. The framers of the Constitution gave the president almost total authority to grant clemency for federal crimes, positioning the head of the executive branch as a check onthe judicial branch and as someone who could dip into the justice system to show grace and mercy on the downtrodden.
But Trump has eschewed the formal Justice Department process set up to ensure pardons are handed out fairly. Instead, he has used his pardon power to help allies, undermine rivals and push his own political agenda. Of the 94 pardons and commutations Trump has granted, 89% were issued to people who had a personal tie to Trump, helped him politically or whose case resonated with him, according to a tabulation by Goldsmith.
The only president to receive a pardon was Richard Nixon. A month after Nixon left office, his former vice president, Gerald Ford, pardoned himfor all crimes he committed in office. Themove was widely criticized at the time and Ford supporters later blamed the pardon for his election loss two years later.
Trump has maintained throughout his presidency that he has the authority to pardon himself and first discussed the possibility with aides as early as his first year in office. Those discussions began when his campaign’s ties to Russia were being scrutinized.