1. What is a pardon?
It’s an act of presidential forgiveness rooted in Article II, Section 2 of the U.S. Constitution that wipes the slate clean for the recipient, even halting judicial proceedings that are under way. (A commutation differs from a pardon by making a punishment milder without wiping out the underlying conviction.) Alexander Hamilton, explaining the purpose of presidential pardoning power in Federalist Paper No. 74, said that the severity of a criminal code demands “an easy access to exceptions in favor of unfortunate guilt,” without which “justice would wear a countenance too sanguinary and cruel.”
2. Who has been pardoned by Trump?
As of Dec. 2, Trump had issued 29 pardons and 16 commutations, many of them to politically connected convicts in response to outcry from fellow Republicans or appeals from celebrities. He pardoned Michael Flynn, his first national security adviser, who had pleaded guilty to lying to FBI agents, and commuted the sentence of political ally Roger Stone, who was supposed to serve more than three years in prison for witness tampering and lying to Congress. Other recipients of clemency include author Dinesh D’Sousa, who pleaded guilty in 2014 to using straw donors to evade campaign finance limits; I. Lewis “Scooter” Libby, the former chief of staff to Vice President Dick Cheney who was convicted in 2007 of perjury and obstructing justice; former Illinois Governor Rod Blagojevich, a Democrat who was convicted of public corruption; financier Michael Milken, who was convicted of securities fraud; and former New York City Police Commissioner Bernard Kerik, who was sentenced to four years in prison for failure to pay taxes and lying to White House officials.
3. How else is Trump doing things differently?
He’s made clemency something of a theatrical process, announcing a posthumous pardon of Susan B. Anthony to mark the centennial of women’s suffrage and timing another pardon to be part of the 2020 Republican National Convention. While standard procedure is to let the Justice Department’s Office of the Pardon Attorney vet requests, most of Trump’s grants of clemency have gone to people who didn’t meet the office’s requirements or hadn’t even asked for one, as the Washington Post reported in February. Trump’s first pardon was given to Joe Arpaio, the former Maricopa County, Arizona, sheriff who had been found guilty a year prior of criminal contempt of court. Arpaio hadn’t applied for the pardon, and regardless, the Justice Department’s guidelines say pardon requests shouldn’t be made until five years have passed after the completion of a sentence, or from the sentencing date if no confinement is ordered. Another recipient of a Trump pardon, David Safavian, who had served prison time for obstructing justice in the investigation of former lobbyist Jack Abramoff, said he hadn’t sought a pardon and that it came “out of the blue.”
4. Is Trump allowed to do that?
Yes. The president can grant a pardon “to any individual he deems fit, irrespective of whether an application has been filed with the Office of the Pardon Attorney” and at any time after the commission of an offense, the Congressional Research Service has written.
5. Who else is seeking pardons?
A lot of people, most of them not famous at all. There were 2,445 pending requests for pardons and 11,510 pending requests for commutations at the start of this fiscal year, according to the Justice Department.
6. Could Trump pardon himself?
Trump, in a 2018 tweet, claimed an “absolute right” to pardon himself. But that’s far from clear. Experts weighing the question point to legal advice given to President Richard Nixon in 1974 in connection with the Watergate scandal: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” That advice hasn’t ever been tested in court. Trump has shown he’s willing to press the limits of his executive authority in unprecedented ways, and he’s been effective at rallying his base around claims that Democrats are out to get him. Trump pardoning himself would fit with that pattern. In 2018, Trump’s own lawyer, Rudy Giuliani, said Trump pardoning himself “would be unthinkable.” More recently, on Nov. 30, one of the president’s favorite TV personalities, Sean Hannity of Fox News, said Trump should “pardon his whole family and himself” on his way out the door. Even if Trump did so, and the pardon withstood legal challenges, it wouldn’t preempt state or local authorities from charging him.
For more articles like this, please visit us at bloomberg.com
©2020 Bloomberg L.P.