Could Trump Pardon Himself?

Could Trump Pardon Himself?

By Mark Nestmann • October 20, 2020

An American president’s authority to grant pardons has long been controversial. The Constitution provides the commander-in-chief with a broad reach in exercising these powers. Article II, Section 2 reads, in part:

The President … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Perhaps not entirely unexpectedly, presidents have regularly exonerated their political supporters and family members and are often accused of abuse of power in connection with this authority. Some of the most controversial presidential pardons have included:

  • In 1868, President Andrew Johnson pardoned every soldier who fought for the Confederacy.

  • In 1974, President Gerald Ford issued to his predecessor, Richard Nixon, a “full, free and absolute pardon” for all federal crimes he “committed or may have committed” during his presidency. Nixon faced charges of obstruction of justice and lying to Congress.

  • In 1977, on his first day in office, President Jimmy Carter pardoned hundreds of thousands of draft resisters who had refused to fight in the Vietnam War.

  • In 1989, President Ronald Reagan pardoned George Steinbrenner, the former owner of the New York Yankees. Steinbrenner had pleaded guilty to obstruction of justice and making illegal campaign contributions.

  • In 2001, President Bill Clinton pardoned his half-brother Roger Clinton for cocaine possession and drug-trafficking convictions. He also pardoned Marc Rich, a fugitive financier, wanted for evading $48 million in taxes and illegal oil trading with Iran. Rich’s former wife was a major Clinton fundraiser who donated to the Democratic Party and the Clinton library foundation.

  • In 2017, just before he left office, President Barack Obama commuted the prison sentence of Chelsea Manning, an Army whistleblower who turned over classified documents to WikiLeaks relating to the illegal conduct of the US military in Iraq.

President Trump hasn’t used his pardon authority nearly as much as several of his predecessors, especially Barack Obama. Some of Trump’s notable pardons include:

  • Joe Arpaio, the former sheriff of Maricopa County, Arizona, convicted of failing to obey a court order to stop racially profiling Latinos.

  • Former New York police commissioner Bernard Kerik, who pleaded guilty to charges of fraud and perjury.

  • Former Illinois governor Rod Blagojevich, convicted of corruption.

  • Roger Stone, a long-time Trump political ally, convicted of obstruction of justice and perjury.

But could Trump pardon himself? The question came up during the investigation of Russian interference in the 2016 presidential election overseen by Special Counsel Robert Mueller. The Mueller report concluded that Trump engaged in conduct that likely could have been charged as obstruction of justice or witness tampering.  But the report didn’t suggest an indictment of Trump due to a Justice Department policy of not indicting a sitting president. Thus, it’s not likely that Trump would resort to a self-pardon unless he loses next month’s election to Democratic challenger Joe Biden.

The question of a self-pardon also arose just before Richard Nixon resigned in 1974. Mary Lawton, the acting deputy attorney general, advised Nixon that he couldn’t pardon himself But she offered him an alternative:

If under the Twenty-Fifth Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President. Thereafter the President could either resign or resume the duties of his office.

But Nixon never attempted this gambit. And in the end, it didn’t matter. Gerald Ford, his successor, pardoned him shortly after Ford was inaugurated.

Still, this is hardly a unanimous view. Some legal scholars believe the president can pardon himself. Among them are Mark Tushnet, a Harvard Law School professor. Tushnet acknowledges that a self-pardon would be highly controversial, but that nothing in the Constitution prohibits it.

Still, a more likely scenario if Trump loses his re-election bid would be for him to follow the 1974 suggestion of the then-acting deputy Attorney General: A few days before Biden’s inauguration on January 20, 2021, Trump would temporarily cede presidential authority to Michael Pence, his vice-president. Pence would then sign a statement similar to the one President Ford signed on behalf of Richard Nixon, granting Trump a “full, free and absolute pardon” for all federal crimes he “committed or may have committed.” Trump would then either resign or resume authority until the inauguration.

But there are limits to the pardon power. It doesn’t extend to treason, for instance.  Article III, Section 3 of the Constitution defines treason as follows:

Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The punishment authorized by Congress for treason is the death penalty, or imprisonment for at least five years and a fine of $10,000 or more.

Based on President Trump’s conduct with respect to Russia, some legal analysts have suggested he is potentially guilty of treason. Trump vehemently disagreed with the conclusion of US intelligence agencies that Russia tried to sway the 2016 election. Instead, he chose to believe Russian President Vladimir Putin’s assurances that Russia hadn’t intervened. Lawrence Tribe, a professor of constitutional law at Harvard Law School, claimed Trump’s statements could “reasonably be defined as treason.”

More recently, even more serious allegations arose. Last June, The New York Times published a story claiming Russia had paid bounties to militants in exchange for killing US troops stationed in Afghanistan. It later emerged that Trump had allegedly known about this practice as early as the spring of 2019.

If Trump was aware of the Russian policy and took no action to stop it, his actions arguably rise to the Constitutional definition of treason. Trump denies the charges, calling them “fake news.”  But fake or not, treason is a charge neither Trump nor Pence can pardon away.

The presidential pardon authority also applies only to federal crimes and not to criminal charges brought by state authorities. Last month, the Manhattan district attorney’s office, which has been locked in a years-long legal battle with Trump to obtain his tax returns, suggested that it had reason to investigate him and his businesses for a variety of crimes, including tax and insurance fraud and faking business records. State prosecutors also noted there had been “public reports of possibly extensive and protracted criminal conduct at the Trump Organization.”

That doesn’t necessarily mean Trump would be imprisoned for these alleged crimes. A plea bargain combined with a large fine is far more likely, especially if Trump isn’t forced to plead guilty to a felony. Moreover, Trump has extensive financial resources available to delay proceedings and could appeal any conviction, if necessary, all the way to the Supreme Court.

However, Trump may not want to take that risk. If he could find a friendly country to take him in without a US extradition treaty, that could prevent him from ever spending a day in prison. And indeed, Trump has declared that he might have to “leave the country” if he loses the election.

Russia is one such country, and President Putin would surely enjoy the delicious irony of hosting a former American president as a long-term guest. Trump also enjoys warm relations with Brazilian president Jair Bolsonaro, and there’s no extradition treaty between the United States and Brazil. And while the State Department could cancel Trump’s passport at the request of a federal or state law enforcement agency, Putin or Bolsonaro could likely award him citizenship, giving him a second passport.

Trump also appears qualify for UK citizenship since his mother was born in Scotland. But there’s an extradition treaty in effect with the United Kingdom – one that the Trump administration is now using to bring Wikileaks founder Julian Assange to the United States to face espionage charges.  

It’s also possible that Trump has already acquired a second passport from a country with a citizenship-by-investment program. That would give him the ability to travel internationally even if his US passport were revoked.

Thus, if Trump loses the election, the interregnum – the 78-day period between successive presidential administrations – will be most interesting. Pour yourself a glass of your favorite libation, pop some popcorn, and watch what happens.

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About The Author

Since 1990, Mark Nestmann has helped thousands of clients seeking wealth preservation and international tax planning solutions. He is the author of highly acclaimed Lifeboat Strategy and other books & reports dealing with these subjects.

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