Can Trump pardon himself before leaving office? Impeachment changes everything. What to know – CNET

President Trump

What will Trump do before his presidency is over? 

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The House of Representatives voted 232-197 to impeach President Donald Trump for incitement of insurrection Wednesday. This impeachment, a second for the president during his four-year term, comes one week after a mob of his supporters stormed Capitol Hill resulting in five people dead, including one Capitol Police officer. 

Since the president can legally and unilaterally pardon a person for federal crimes, some have questioned whether Trump can — and indeed, would — seek to pardon himself. Trump has reportedly asked aides about the reach of his pardoning power since the November election, which he lost to President-elect Joe Biden.

Before Wednesday’s impeachment vote in the House, at least two figures connected with the White House — former Attorney General William Barr and White House counsel Pat Cipollone — have reportedly warned Trump not to attempt a self-pardon, according to CNN. But could he? What kind of pardoning power does a president have and who might Trump pardon next? Here’s what you need to know about a presidential pardon. 

Can Trump self-pardon? It may be too late to try

Trump seeking a self-pardon would be unchartered territory, with no precedent and also no outright rule against it, apart from one. For Trump, it may be the only barrier that matters.

The Constitution, under Article II, Section 2, Clause 1, gives the president the power to pardon individuals — “except in Cases of Impeachment.” The language of the law is clear on that. The House has voted and impeached Trump, an action that’s on the permanent record. The next step is for the Senate to either convict or to acquit

It isn’t clear if the law would be interpreted to extend only to conviction form the Senate, or if the act of “impeachment” that occurred in the House on Jan. 13 would disqualify pardoning power. As of now, Trump still holds the office of the president.

To see the argument through, the Constitution does not explicitly bar a president from granting self-clemency against prosecution. It comes down to the interpretation. Some legal scholars suggest that if it isn’t in the text, then it’s not legal. 

“No president has the constitutional authority to self-pardon,” said Jared Carter, assistant professor at Vermont Law School

While no president has yet attempted to pardon himself, President Richard Nixon did ask the Office of Legal Counsel in 1974 for an opinion on the matter while he was entrenched in the Watergate scandal

“Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself,” Mary C. Lawton, acting assistant Attorney General for the Office of Legal Counsel, said in a memo on Aug. 5, 1974. Nixon resigned on Aug. 9, 1974. 

In purely academic terms, if Trump weren’t impeached and attempted to go through with the action before the end of his presidency, the only way to test the legality of a self-pardon would have been for him to be charged with a federal crime. This would, theoretically, most likely have occurred through Biden’s Department of Justice after taking office on Jan. 20. From there, the case would hypothetically have to make its way to the Supreme Court, which would ultimately decide the legality of a self-pardon. Again, the situation has now changed. 

Hypothetically, could Trump be pardoned by Pence? 

This scenario would be similar to President Gerald Ford’s pardoning of Nixon following his resignation due to the Watergate scandal. Trump could resign before his presidency ends, which would make Vice President Mike Pence the president. In turn, Pence could pardon Trump. 

Importantly, the same constitutional law on pardons prevents a president from pardoning a person who has been impeached. Trump would have had to resign before being impeached if it were to take effect.

Vice President PenceVice President Pence

Will Vice President Pence come to Trump’s rescue?

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There are a couple of nuances here. Firstly, the pardon applies to federal crimes, which means that in this very hypothetical scenario, a pardon from Pence would mean that Trump wouldn’t be held accountable for indictments regarding the Capitol Hill riot. However, he could still be convicted for any state crimes, which is currently under investigation by the Manhattan district attorney

There’s a possibility charges could be filed in Washington, DC, by the city’s Attorney General Karl Racine. In an interview Monday on MSNBC, Racine said he’s looking to charge those who spoke at a rally before the riot, which includes the president, “under the DC code of inciting violence.” 

If this scenario were to play out — again this is highly theoretical only — a move to pardon Trump could sour any hopes of Pence running for president in 2024 with some constituents but bolster his case with Trump’s base. 

And if Trump were to resign with Pence immediately pardoning him, at least one attorney has suggested legal trouble.

“Theoretically, [Pence] could be opening himself up to a criminal prosecution for bribery or corruption If he did it,” said William A. Burck, partner at Quinn Emanuel Urquhart & Sullivan. 

Can Trump pardon the Capitol Hill rioters? 

Technically, yes, as long as Trump still maintains his pardoning power. On the day the mob stormed the Capitol, 13 people were arrested. Since then, law enforcement charged dozens more who traveled to Washington to participate in the riot after the FBI posted more pictures of suspects. Those arrested could be charged with federal crimes and face time in jail of up to 10 years. 

Trump could pardon each individual charged with a crime or provide a blanket pardon for anyone that could face federal penalties for the riot. There is precedent for this mass pardoning. When President Jimmy Carter took office in 1977, one of his first acts was to pardon anyone who evaded the Vietnam War draft

Could Trump pardon everyone as he wants? Is there any legal limit?

There technically isn’t a limit on the number of pardons a president can grant. Along with the previously mentioned blanket pardon by Carter, President Andrew Johnson pardoned tens of Confederate soldiers and wealthy Southerners during his time in office. 

Who has Trump pardoned as president so far? 

Trump has pardoned 70 people, so far. This includes former members of his campaign and staff who made false statements to federal agents, people such as Michael Flynn, Roger Stone, Paul Manafort and George Papadopoulos. He also granted posthumous pardons to women’s rights activist Susan B. Anthony and early 20th-century championship boxer Jack Johnson

Would else might Trump pardon before leaving office? 

There are still a number of people Trump could pardon before the end of his presidency. The most likely individuals would be his children — Ivanka, Don Jr. and Eric Trump — and members of his staff, including personal attorney Rudy Guiliani (who is at risk of losing his membership to the New York State Bar Association), Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John McEntee and social media director Dan Scavino, according to a report from Blomberg. It’s also reported he could pardon a few celebrities, including rappers Lil’ Wayne and Kodak Black.