It may be the first thing you learned in school about the American Revolution – it was meant to end a king’s rule.
And yet when the founding fathers wrote the United States Constitution for the new republic, they assigned the President a key power deeply rooted in monarchical tradition: the ability to pardon federal crimes. “An act of grace,” was how Chief Justice John Marshall described pardon power in an 1833 case.
As they ordered many thousands of pardons and reduced sentences, American presidents have offered much of that same rationale of mercy, even as some pardons and commutations raise concerns that they are miscarriages of justice.
That’s the case today, after President Trump recently announced he was pardoning another political ally – his former National Security Advisor, Michael Flynn, who had admitted lying to the FBI – and repeatedly mulls pardoning himself, most recently retweeting an allied congressman and writing in 2018:
“I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”
His repeated claims of innocence notwithstanding, Trump may seek to preemptively pardon himself for federal crimes when he loses his presidential immunity after Joe Biden is sworn in on Jan. 20. His former fixer Michael Cohen said, upon his own guilty plea in 2018 for federal campaign finance violations, that Trump directed him to pay hush money to porn star Stormy Daniels and a former Playboy model to deflect damaging headlines as he ran for the Presidency.
New York authorities are also reportedly investigating his business dealings for tax-related crimes, but a presidential pardon does not apply to such local cases.
A White House spokesperson did not respond to a request for comment on this story.
As the clock runs out on his presidency, observers wonder who else Trump may pardon; and, if it is himself, whether the courts will allow it.
“That question may or may not arise but it’s one that calls for legal analysis of what the scope of the pardon power is,” Supreme Court Justice Amy Coney Barrett said during her confirmation hearings in October, calling it “an open question.”
But scholars have a different view. Frank O. Bowman, III, Professor of Law at the University of Missouri, who has deeply studied the matter, says a self-pardon is unconstitutional. He calls it both a matter of good governance – and also says that as the framers of the constitution understood the word “pardon,” it implied an action that can never be done to oneself – only to another person.
“Why should presidents, of all people, be immune from the operation of the criminal law that binds all the rest of us?” Bowman asked in an interview with Spectrum News. “He or she in particular, I think, needs to be subject to the criminal law if we're not to slide into authoritarianism.”
The Constitution grants the President “Power to grant Reprieves and Pardons for Offences against the United States” with no exceptions but one “except in Cases of Impeachment.”
Kimberly Wehle, professor of law at the University of Baltimore and author of the book “How to Read the Constitution -- and Why” said in an interview that distinction may mean a self-pardon — for acts that could otherwise lead to impeachment – could “in theory” be found unconstitutional, adding that it may also violate the legal concept that a person cannot be both a judge and jury in his or her own case.
But Wehle makes a crucial point: “I think the question isn't so much whether the Constitution allows it as much as whether he can get away with it.”
That is, if Trump pardons himself, and then leaves office, who has enough standing to bring the matter to the Supreme Court, to settle it once and for all?
Her answer: President-Elect Joe Biden.
“There isn't otherwise any way to tee it up before a court,” Wehle says.
Biden has said that he will not pardon his predecessor, as President Gerald Ford did after Richard Nixon resigned amid the Watergate scandal.
Ford’s proclamation from the time says, “the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States.”
In the centuries of pardons Presidents ordered, the majority bring joy to those granted mercy, but few headlines or controversies. There are notable exceptions, starting at the beginning. In 1794, George Washington used pardons to restore national harmony after the Whiskey Rebellion; the next century, Andrew Johnson pardoned former Confederates, also in a bid for lasting peace after the Civil War.
Ford and Jimmy Carter offered pardons to those who evaded the Vietnam War draft.
In the waning hours of his presidency, Bill Clinton pardoned Marc Rich, a financial benefactor who had been indicted for a number of crimes, including income tax evasion and trading with Iran in violation of a trade embargo.
Several months after he took office, Donald Trump pardoned Joe Arpaio, a former Maricopa County Arizona sheriff with hardline views on immigration, who had been convicted of contempt of court. It was the first of multiple pardons and commutations of controversial figures, including longtime supporter Roger Stone, former New York City Police Commissioner Bernard Kerik; and former Illinois Governor Rod Blagojevich.
It should be noted that Trump has used the clemency power far less than any other president in modern history, according to a recent analysis from the Pew Research Center. Trump granted clemency 45 times, including Flynn's pardon – 29 pardons and 16 commutations, per the Department of Justice. The only other modern president who has granted clemency as infrequently as Trump is George H.W. Bush, who utilized it 77 times in his single term as president.
Trump's predecessor, Barack Obama, issued 212 pardons and 1,715 commutations in his two terms as president.
There have been efforts to reign in pardon power, most recently The Protecting Our Democracy Act, which the Democratic-led House of Representatives introduced in September, saying “Trump has sought to systematically and shamelessly tear down the guardrails designed to protect our democracy and the rule of law.” The measure isn’t expected to gain traction in a Republican-controlled Senate.
An amendment to repeal the Constitutional amendment on pardons is even more remote – the arduous process requires more bipartisan enthusiasm than is likely now available in the country.
That leaves limited options other than waiting for those wondering whether President Trump will again make history, this time as the first Commander in Chief to pardon himself.
One thing seems clear, however – considering where he’s announced previous big announcements, if the President makes a decision, it’s likely to come from his Twitter feed.