Trump is said to have discussed self-pardon
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 he incited his supporters on Wednesday to storm the Capitol in a mob attack.
Trump has shown signs that his level of interest in pardoning himself goes beyond idle musings. He has long maintained he has the 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 him after he leaves 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 would recognize 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 pre-emptive pardons for family, including his three oldest children — Donald Jr., Eric Trump and Ivanka Trump — Ivanka Trump’s husband, senior White House adviser Jared Kushner, and for close associates like the president’s personal lawyer Rudy Giuliani. Trump has 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 weeks solicited aides and allies for suggestions on whom to pardon. He has also offered pre-emptive pardons to advisers and administration officials. Many were taken 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 no protection against state crimes. They would not apply to charges that could be brought by prosecutors in Manhattan investigating the Trump Organization’s finances.
The discussions between Trump and his aides about a self-pardon came before his pressure over the weekend on Georgia officials to help him try to overturn the elections 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 on Wednesday 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 on the discussion. Acting D.C. U.S. attorney Michael Sherwin in a news conference Thursday did not rule out charging Trump.
“We are looking at all actors here, and all options are on the table. ... Anyone that had a role, if the evidence fits the elements of a crime, they’re going to be charged,” he said
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 whether Trump broke the law, citing legal and factual 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.
Pardons can be broad or narrowly tailored. White-collar defense lawyers said that Trump would be best served by citing specific crimes if he pardons himself, but such details could be politically damaging by suggesting that he was acknowledging he had committed those crimes.
A self-pardon would complicate the already fraught question for the Biden Justice Department about whether to investigate and ultimately prosecute Trump. Democrats and former Justice Department officials contend that if Trump pardons himself and the Justice Department declined to prosecute Trump, it will send a troubling message to Americans about the rule of law and for future presidents about their ability to flout the law.
“The Biden Justice Department will not want to acquiesce in a Trump self-pardon, which implies that the president is literally above federal law,” said Jack Goldsmith, a Harvard law professor and former top Justice Department official in the George W. Bush administration.
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 and investigators were examining whether he had obstructed justice.