Self-pardons, family pardons, and even pardons for sale!
The political discussion over Trump’s use of the pardon power should be separated into three, equally troubling categories:
I. The Self-Pardon
This week, Sean Hannity urged Trump to issue pardons for his entire family, including the president himself. However, Trump can’t issue a self-pardon for two reasons.
First, when Nixon was weighing a potential self-pardon, his own Justice Department declared the hypothetical maneuver as unconstitutional. Nixon was then pardoned by his successor, President Ford.
Second, there is a legitimate question as to whether a self-pardon is even constitutional in the first place, according to law professor Eric Muller.
Professor Muller notes that there is a difference between a president receiving a pardon (totally legal) or granting himself a pardon (most likely illegal).
Article II of the Constitution says that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Did you catch that? The president has the power not to pardon people, but “to grant … Pardons” (emphasis added). So the question is not whether Trump can pardon himself. It’s whether he can grant himself a pardon.
That might seem like an odd way of putting the question, but it’s linguistically important. On the one hand, some actions can’t be reflexive — you can’t do them to yourself. Think of surrendering, relinquishing, or handing over something. These verbs entail a transfer to someone else; the actor can’t also be the recipient.
On the other hand, countless verbs do leave open the possibility of reflexive meaning. If, for example, the Constitution had empowered the president not to grant a pardon but to announce a pardon, one would be hard-pressed to insist that the president could not announce himself as a recipient.
This may appear like legalese meets splitting hairs, but language is important with the Constitution. The Constitution differentiates between “citizens” and “people,” for example, so when the census calls for “all people to be counted” it would include non-citizens, which is why Trump’s census challenge is going nowhere.
The self-pardon is a difficult stunt to pull off — history, the Department of Justice, and the Constitution aren’t on Trump’s side.
II. Pardoning Family and Friends
The New York Times reported that as recently as last week, President Trump has discussed issuing pardons for Rudolph Giuliani, his son-in-law Jared Kushner, and his three eldest children — Donald Jr., Eric, and Ivanka.
Donald Trump Jr. faces legal exposure over his dubious encounters with Russian contacts offering dirt on Hillary Clinton in 2016. Kushner could face charges over lying to federal authorities during his security clearance interviews. Giuliani was under investigation this past summer for business dealings in Ukraine.
The deal is a windfall for Giuliani. On top of the $20,000 per day he gets from Trump, he is now shielded from the consequences of his own malfeasance. In exchange, he sells his integrity, but any remnant of such quality has long been lost.
III. Selling Pardons
File this one in the “headlines that should shock no one” folder: Justice Department Investigating Potential Bribery Scheme for Trump Pardon.
Yes, it’s true. Trump’s own government has investigated whether there was a pay-to-play scheme involving pardons in exchange for political contributions/money.
According to recently unsealed court documents, a prisoner’s lawyer had formal discussions with the White House Counsel’s Office about a pardon. As the report notes, “the two (lawyers) may have offered to funnel money as political donations in exchange for the pardon of commutation.”
Trump responded on Twitter by declaring that the “pardon investigation is Fake News!”
The pardon power is definitely something to keep an eye on in the waning days of the Trump administration. A self-pardon is most likely not legal, and there is no historical precedent. The president is preparing blanket pardons to family members without even mentioning specific crimes. Finally, in at least one scenario that we know if, the White House attempted to leverage the pardon power for financial benefit.
January can’t come soon enough.