Presidential pardons technically only apply to federal crime–meaning state charges against Trump and his family could go on.
With just six weeks to go until he leaves office, President Donald Trump is going out the same way he came in: stomping on norms and abusing the law for his own benefit.
Trump is openly soliciting and discussing pardon requests “like Christmas gifts” to people who haven’t even asked for them, Axios reported Monday. He allegedly said he was going to pardon “every person who ever talked to me,” though the adviser who heard that was unclear whether the president was serious. Trump even suggested a pardon for one adviser who didn’t ask for it and didn’t believe they had committed any crimes.
That report comes just days after the New York Times revealed that Trump is considering preemptively pardoning three of his own children—Donald Trump Jr., Eric Trump, and Ivanka Trump—over fears that the incoming Biden administration might investigate Trump’s family. Politico also reported that the president is considering pardoning more than a dozen aides and associates for the same reason.
Trump has not yet made final decisions about whether to issue the pardons, as he is reportedly concerned that it might give off the perception that his family and allies are criminals. That has not stopped him before, however. Trump recently pardoned his former national security adviser Michael Flynn over “any and all possible offenses” related to special counsel Robert Mueller’s investigation of Russian interference in the 2016 election. The president has previously pardoned several other controversial figures and once mused on Twitter that he has “the absolute right to PARDON” himself—a dubious, but untested legal claim.
If he goes through with his pardons, Trump would be trampling all over the traditional pardon process laid out by the Department of Justice, leading to chaos and controversy. Given the possibility of an impending pardon blitz, COURIER decided to answer some of the most commonly asked questions about pardons, how they are supposed to work, and what they provide.
What Is a Presidential Pardon?
A pardon is a constitutionally-provided power that allows a president to exempt the recipient from any remaining punishment—such as prison time or unpaid fines—for a federal crime and restores any rights that were revoked as part of a federal conviction, such as the right to vote or own a firearm.
The president can also pardon people who haven’t been officially charged with a crime yet, which is what happened when President Gerald Ford preemptively pardoned President Richard Nixon for Nixon’s role in the Watergate scandal.
A presidential pardon does not provide total immunity or protection however, as the person could still face state charges, congressional investigations, and lawsuits. They could also be charged for other federal crimes not included in the pardon.
Are There Limits to Presidential Pardons?
Barely. The only limits are that a president can only pardon federal crimes and cannot pardon anyone in the context of an impeachment investigation. Put another way: A president can’t avoid being impeached by issuing a pardon to someone.
Beyond that, the pardon power is incredibly broad and presidents have a lot of latitude to issue pardons to those convicted in federal courts. But any charges that emerge from state investigations—like New York’s pair of inquiries into whether the Trump organization committed financial fraud—wouldn’t be affected and could not be pardoned. (However, one legal scholar notes that Trump’s attorneys could argue double jeopardy for state offenses involving the same conduct that received a federal pardon.)
Can Trump Pardon Himself?
No president has ever tried to issue a self-pardon, so it remains a matter of legal debate whether the president can pardon himself. The Constitution doesn’t specify that he can’t, but many legal scholars believe a self-pardon would be illegal. The Supreme Court has never issued a ruling on the issue, but if Trump tries to pardon himself, it could spark a legal challenge that reaches the high court.
Can Trump Pardon his Family Members?
Yes. The pardon power conveys broad authority and allows the president to pardon anyone convicted of a federal crime. In 2001, on his final day in office, President Clinton pardoned his half-brother Roger Clinton on drug charges.
How Do You Get a Presidential Pardon? Do You Have to Apply?
In general, anyone seeking a presidential pardon must submit an application to the Office of the Pardon Attorney in the Department of Justice (DOJ) for evaluation. The person seeking a pardon ordinarily must wait a minimum of five years after they are released from confinement to submit their petition. If the federal conviction did not result in imprisonment or confinement of any kind, the waiting period begins on the date of sentencing. In most cases, anyone who is on probation, parole, or supervised release should not submit a petition, either.
That petition is then reviewed by the Office of the Pardon Attorney, investigations are conducted, and comments are sought from prosecutors and judges involved in the applicant’s case. From there, the DOJ makes a recommendation to the president, who then makes the decision on whether or not to approve the pardon.
That said, the president can decide to pardon anyone he wants, with or without the DOJ’s recommendation. When Trump pardoned former Maricopa County, Arizona Sheriff Joe Arpaio in 2017, for example, he did not follow the standard DOJ process before making his decision.
How Long Does It Take to Get a Presidential Pardon?
While Trump or any other president can bypass the pardon process and grant a pardon on his own, in most cases, the process takes time, as laid out above.
Can a Presidential Pardon Be Overturned?
Broadly speaking, no. There is currently no way to overturn, block, or reverse a pardon. The only known instance of a reversal in modern history occurred in 2008, when President George W. Bush revoked a pardon he issued to Isaac Robert Toussie, a real estate developer convicted of mail fraud. Bush reversed the pardon one day after he issued it when he learned that Toussie’s father was a major Republican donor.
Some legal experts doubted whether Bush had the authority to pull back the pardon, but the DOJ said it believed the pardon was not yet official because the president’s pardon warrant simply directs the Office of the Pardon Attorney to sign a grant of clemency. Only when that is complete and the pardon is delivered to the recipient—in this case Toussie—is the pardon official, the DOJ claimed.
Does a Presidential Pardon Clear Your Record?
No. While a presidential pardon will remove all punishments affiliated with a conviction and restore various rights lost as a result of the pardoned offense, it will not erase or expunge the record of the conviction itself.
What Is the Difference Between a Presidential Pardon and Clemency? What about a Presidential Pardon and Commutation?
Both pardons and commutations fall under the umbrella of clemency—a broad term encompassing the President’s constitutional power to provide relief towards an individual convicted of a federal crime.
While a presidential pardon provides relief to a convicted individual from any remaining punishment or future consequences stemming from their conviction, a commutation reduces the person’s actual sentence, either fully or partially. Neither removes the individual’s crimes from their record, however.