On Tuesday, the New York Times reported that President Donald Trump has been discussing wide-reaching pardons for three of his children, his son-in-law, and his personal attorney Rudy Giuliani. The news came shortly after a federal judge unsealed a redacted legal filing in the investigation of alleged “bribery-for-pardon schemes” by an unnamed individual seeking a pardon or commutation from Trump, a revelation which the president subsequently described as “Fake News!” The news of the potential family pardons and allegation of a possible solicitation of a criminal pardon raise an important question for Trump’s final weeks in office: What will any Trump pardon spree mean for the possibility of future investigations of possible Trump-era crimes? It turns out that if Trump is too extravagant with his pardons, it might open him up to greater criminal liability.
Trump may try to checkmate any future federal probes with a profligate award of pardons, but this likely won’t be as effective as he may imagine. Indeed, abuse of the pardon power may increase the federal criminal focus on Trump himself once his presidency ends. Understanding why requires understanding the parameters of the pardon power.
Both human persons and corporations, such as the Trump Organization, can be charged with crimes. The pardon power apparently extends to both. The only person President Donald J. Trump cannot constitutionally pardon is Donald J. Trump. This point is untested, but the arguments against presidential self-pardon are powerful.
The pardon power reaches any violation of federal criminal law but does not extend to state crimes, or to civil or regulatory infractions of either state or federal law. A valid pardon can be issued for a crime that has not been investigated or charged, so long as it occurred prior to the issuance of the pardon. For example, after the Civil War, President Andrew Johnson issued thousands of pardons for treason to former Confederates who had not been charged with that offense. Presidents Gerald Ford and Jimmy Carter issued broad amnesties to Vietnam draft evaders, some charged with crimes and some not. But a pardon cannot cover either a crime that occurs after its issuance, or a continuing offense like a criminal conspiracy that began before the pardon but was ongoing thereafter. Likewise, the limitation to prior crimes means that the issuance of the pardon could itself be a crime, if it was issued corruptly in connection with a bribe or in order to obstruct justice. This is why the investigation of the “bribery-for-pardon schemes” revealed in unsealed legal filings on Tuesday could expose Trump to his own criminal liability if he participated in any such schemes.
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Customarily, a pardon specifies particular crimes to which it applies. For recipients already convicted, the pardon warrant ordinarily enumerates the crimes of conviction. Even in instances like the Civil War and Vietnam War pardons of unconvicted traitors and draft evaders, the presidential proclamations limited their scope by time period and crime category. The only historical instance of a blanket pardon for all federal crimes was that issued by President Gerald Ford to his predecessor, Richard Nixon, which covered any federal crime committed between the date Nixon assumed the presidency and the date of his resignation. Whether a general pardon of that scope is constitutionally permissible is unclear because the Nixon pardon was never challenged for overbreadth.
Given these rules, how might pardons play into federal efforts to investigate and perhaps prosecute Trump and friends?
First, it is reasonable to surmise that Trump will attempt to pardon himself, and that the terms of the pardon will be at least as broad as the one Ford gave Nixon. While the constitutional case against self-pardon is strong, the Supreme Court may think otherwise, in which case Trump is off scot-free, at least for federal crimes. More importantly, given Trump’s lifelong strategy of fighting legal threats with delaying tactics, the many months it would take to litigate the question would surely buy him plenty of time no matter how the Supreme Court ultimately ruled.
An ordinary political figure might be deterred from self-pardon by the implied admission of criminality and the resultant reputational stigma. This would be particularly true for someone who has proclaimed an interest in running for president again. But it’s not clear those disincentives would work for Trump. He’d simply say that the pardon admitted nothing but was necessary to ward off the evil machinations of corrupt liberals and the Deep State. His enablers at Fox News have already begun making this argument.
It’s important, though, to understand that Trump’s current objective is surely not only to escape indictment and prison himself, but to protect his family and prevent public disclosure of facts damaging to his financial and political interests. A self-pardon alone, even if valid and no matter how broadly worded, wouldn’t completely shield Trump, his family, and their secrets from federal criminal investigators.
In a sense, Trump’s problem is that he is not Richard Nixon. Ford’s blanket pardon of Nixon effectively blocked further federal criminal inquiries into Nixon’s prior misdeeds. Nixon had no business empire. He was just a career politician who committed major crimes in the exercise of his presidential power, and perhaps some minor personal offenses in managing his limited personal wealth. Moreover, by the time of Nixon’s pardon, the essence of his misdeeds had been publicly exposed by the Watergate investigations, and all his criminal associates had been detected and largely dealt with by the law.
By contrast, Trump’s pride and joy—his source of wealth, the basis for his spurious claims to competence, and his hope of future comfort and national influence—is his private business, reportedly an opaque network of corporations and other organizational forms. Likewise, the extent and details of Trump’s criminal misconduct, if any, have not been fully aired, nor has the criminal justice system dealt with his criminal confederates, if any.
The very organizational intricacy of Trump’s businesses, together with the number of individuals involved in them, and in other Trump public and private activities, make it very difficult for Trump to throw up an impermeable pardon shield. For Trump to secure comprehensive protection from federal criminal investigation of his affairs, he would have to identify all business entities and persons subject to possible criminal liability as a consequence of dealings with Trump, his businesses, or his political operations and grant general pardons to all of them. Issuing such pardons would require Trump to enumerate publicly all the businesses and people he thinks might have done things the disclosure of which could reveal his own wrongdoing. On the one hand, compiling such a list would give federal criminal and civil investigators, and the press, a road map to Trump’s worst fears. On the other hand, any omission from the pardon bath would leave open an avenue of criminal investigation and thus of exposure of Trump secrets.
Moreover, not all of the potential recipients of Trump pardons would necessarily want them. For example, banks, other businesses, and for that matter many individuals might wish to avoid the stigma a pardon would confer. And the law is reasonably clear that a president cannot force someone to accept a pardon.
Perversely, while a Trump pardon spree might make some federal criminal prosecutions harder or even impossible, it could make some investigations of Trumpworld, and indeed of Trump himself, easier. A person who accepts a pardon loses the Fifth Amendment right to refuse to answer questions about any matter within the scope of the pardon. (If a truthful answer could create state criminal liability, a pardon recipient could still refuse to answer on that ground, but most behavior covered by Trump pardons would probably involve federal, not state, offenses.) The more broadly worded the pardon, the less protection the recipient retains against compelled testimony.
Trump’s recent pardon of his former National Security Adviser Michael Flynn illustrates the point. Flynn’s sole conviction was for lying to the FBI, but the pardon warrant not only absolves him of guilt for that crime, but also “any and all possible offenses within the investigative authority or jurisdiction of” special counsel Robert Mueller. Thus, federal investigators and Congress can now compel Flynn to testify about any matter into which Mueller was inquiring—including the role of Donald Trump.
If Trump were to distribute such broadly worded pardons liberally among his circle, he would make them all subject to subpoena to testify about not only their own conduct, but his. Moreover, if I am right that a president may not self-pardon, then a Trump pardon spree covering all his at-risk intimates would not only make it easier for DOJ to gather evidence against him, but would simultaneously leave him as the principal remaining legally prosecutable defendant. In that circumstance, prosecutors in a Biden Justice Department who might otherwise be disposed to avoid going after Trump personally might be left with the choice of abandoning cases with strong evidence or making the ex-president their principal target. Ultimately, Trump’s pardons could help precipitate the very legal reckoning for him and his business empire he so desperately wants to avoid.