Preemptive Pardon in Trump’s era
Can President Donald Trump Preemptively pardon his friends, family, or himself even at these final days of his presidency?
Trump’s decision to pardon Michael Flynn, his former advisor, has elicited mixed reactions and generated a huge public debate in political and legal circles. Trump remains with less than six-weeks in the office before he hands over power to the president-elect, Joe Biden, on 20th January 2021. Any major decision he makes at this last minute of his reign is likely to draw suspicions, especially from the Democrats.
As unusual as it sounds, Trump is considering pardoning (preemptively) at least 20 of his associates, family, friends, and even himself before passing the mantle to Biden. A preemptive pardon is when a president protects a person from prosecution for federal offenses.
What does the law say about preemptive pardoning?
The US constitution gives the president the power to commute or pardon sentences for anyone who has committed a federal crime. While pardons ordinarily apply to people whose conducts have resulted in legal proceedings, the president can as well shield someone from any impending prosecution. The Pardon Clause of Article Ⅱ, section 2 of the constitution gives the president pardon and reprieve powers for offenses against the US (federal crimes) except in matters involving impeachment.
In an 1866 ruling, the US Supreme Court clarified that presidential pardons could apply to any offense and at any time. Meaning, it can be exercised at any stage of a court process, be it at conviction, after judgment, during the pendency, and even before the matter comes to prosecutors’ attention.
Accordingly, President Trump could preemptively pardon his family members, supporters, and aides and still be on firm legal grounds.
While such a move aims at preventing his allies from an impending ensnare in federal investigations after leaving office, Trump is hesitant to evoke his preemptive pardon powers. He fears that such a move may send the wrong message to Republican supporters that his inner circle members are a bunch of criminals). Nonetheless, his adherents believe that such action is necessary to shield his associates and family from what they have termed a politically motivated “witch hunt” that is likely to ensure once he leaves Trump leaves office.
How does a preemptive pardon work?
A pardon prevents a wrongdoer from facing the full wrath of the law for offenses already committed. However, it isn’t a chance to begin breaking federal laws afresh, without fear of prosecution.
While it shields a wrongdoer from prosecution, a preemptive pardon can’t be extended for offenses that a person is yet to commit. Moreover, it cannot protect an offender from local authorities and state prosecutions.
Do preemptive pardons exist in US history?
While the exercise of preemptive pardon power has been rare, good citable examples do exist. Presidential preemptive pardons in US history are as old as the office itself.
In the 1790s, the then-president, George Washington, granted preemptive pardons to the “Whisky Uprising” masterminds — a farmers and brewers revolt against the government’s move to levy the so-called “whisky tax.”
Moreover, President Jimmy Carter, in 1977, shielded the “Draft Dodgers” from prosecution. These people had refused to follow the government’s imposed directive to fight in the Vietnam War.
The preemptive pardon that looms particularly large in the US’s historical memory is when President Gerald Ford pardoned his predecessor, Richard Nickson, after the Watergate Scandal. Prosecutors hadn’t charged Nickson yet, even after he had resigned following the scandal.
Can President Trump pardon himself?
This question has no clear-cut answer. The question lacks any historical precedent. Moreover, it has continued to divide both politicians and legal scholars. With the absence of a statute offering a framework for self-pardons, it remains to be seen whether President Donald Trump will surprise many — as he has done before — and attempt to go where his predecessors have never gone.
