As President Donald Trump heads into his last few weeks in the White House, there are signs that a slew of high-profile pardons could be coming, including those for close allies like Trump’s personal lawyer Rudolph W. Giuliani, Trump’s family members or even Trump himself. These pardons, if they happen, could be quite expansive — granting blanket immunity for crimes for which Trump’s allies and family members haven’t even been charged, much less convicted. At the very least, they would almost certainly be controversial, as many of Trump’s pardons already have been.
Trump wouldn’t be the first president to issue a lot of pardons at the end of his presidency, nor the first to grant a controversial pardon. But legal experts say Trump’s record on pardons — especially if he ends up using his last days in office to issue get-out-of-jail-free cards to family members or himself — could set a dangerous precedent for two reasons.
First, Trump has been unusually stingy with the pardon power up until now, even by modern standards. And second, almost all of his acts of clemency (which include commutations as well as pardons) have gone to people he knows, like former national security adviser Michael Flynn, or to those with whom he may curry political favor, like the two Oregon cattle ranchers who were at the center of a dispute over federal land involving states’ rights activist Ammon Bundy.
That track record, legal experts told me, is pretty much the exact opposite of how the presidential pardon power was intended to function, which was as a check on abuses by the legislative or judicial branches. “Many of Trump’s pardons … could fairly be characterized as more about his personal interests than serving justice,” Jeffrey Crouch, a law professor at American University and an expert on executive clemency, said in an email. “Pardons are normally granted to people who have turned their lives around, shown remorse and want a pardon,” Crouch told me, adding that this just isn’t the story line that has emerged from four years of Trump. “[His] clemency approach is that clemency is less available to average people than it is to those with the right group of connections.”
Trump wouldn’t be the first president to go on a lame-duck pardoning binge
If Trump ends up issuing a large number of pardons and commutations in the waning days of his presidency, that wouldn’t be a huge surprise. As the table below shows, modern presidents have tended to wait until the end of their presidency to start breaking out their pardoning pen in earnest.
|FY||President||share of total clemency grants issued|
President Bill Clinton, for instance, granted clemency to more than 100 people on the last day of his presidency alone, including an especially controversial pardon for Marc Rich, a fugitive financier who had fled the country and was living in Switzerland, and whose ex-wife was a longtime financial supporter of Clinton’s. And President Barack Obama, as part of a broader effort to help federal prisoners serving long sentences as the result of the tough-on-crime policies of the 1980s and 1990s, commuted the sentences of nearly 2,000 drug offenders during his last week in office.
Fear of political backlash has often kept presidents from using their pardon power until they have one foot out the door, according to Rachel Barkow, a professor at New York University Law School who has studied the clemency power. “They’re not as worried about taking a political hit at that point if someone they [grant clemency to] unfortunately commits a heinous crime,” she said.
That might explain why some of the most controversial pardons in modern history have come as a president was leaving office — particularly something like a “preemptive” pardon, in which the recipient is absolved of federal crimes of which they haven’t been convicted. Trump is reportedly considering such pardons for Giuliani and some of his adult children.
Preemptive pardons are rare, but Trump wouldn’t be the first president to grant one. A month after taking office, President Gerald Ford pardoned President Richard Nixon, who had resigned after being named a co-conspirator in a case involving the cover-up of the Watergate break-in. Ford pardoned Nixon before he could actually be charged, and he didn’t pardon him for just one specific crime either — his pardon forgave him for any federal crimes that he may have committed during his time in office.
On Christmas Eve in 1992, President George H.W. Bush pardoned former defense secretary Caspar Weinberger and several other people for their participation in the Reagan-era Iran-Contra scandal, effectively ending six years of legal proceedings before their trials started. That pardon was especially controversial because Bush was scheduled to testify as a witness in Weinberger’s trial, leading the prosecutor in the case to accuse Bush of participating in a “cover-up.”
Trump’s pardons have been simultaneously sparse and self-serving
For most presidents, though, controversial pardons are the exception, not the rule. Preemptive pardons are few and far between, and it’s similarly rare for presidents to pardon family members. Clinton did pardon his brother Roger, as part of his last-minute clemency spree, but Roger Clinton had already served time in prison. So it would still be very far outside the norm for Trump to pardon his family members — much less issue a pardon for himself, which no president has ever attempted (and may not be constitutional).
And even if Trump doesn’t preemptively pardon family members, allies or himself, experts pointed out that his use of the clemency power still looks quite different than other presidents. For one thing, Trump has been unusually sparing with pardons and commutations — even compared to other modern presidents who were criticized for using the power too stingily. Of course, there’s still time for that to change, but so far he’s granted clemency to fewer people than any other president in the modern era.
Additionally, according to an analysis by Lawfare, Trump’s pardons and commutations have gone almost exclusively to people he knows personally (like former Maricopa County, Arizona, sheriff Joe Arpaio) or whose stories he heard about on Fox News (like former Illinois governor Rod Blagojevich) — and not ordinary people who usually receive clemency because a president concludes that their sentences were unjust or that they’ve repaid their debt to society.
“He’s done virtually nothing for people who aren’t high-profile but want to cleanse their records or remove the collateral consequences of federal convictions,” said Daniel Kobil, a professor at Capital University Law School who studies executive clemency. “Instead, his pardons and commutations are mostly self-serving — he’s given them to people who are cronies or who can help him somehow in his political battles.”
Trump’s pardons could set a dangerous precedent
But perhaps what is especially worrying when it comes to presidential pardons is that the president’s power is basically unlimited: Preemptive pardons are constitutional, and even a pardon obtained through bribery or a presidential self-pardon might end up standing up in court. Ultimately, the Biden administration would likely have to be willing to challenge a Trump self-pardon in court — and it’s far from clear that Biden, who has been calling for unity in the wake of the election, would be willing to do that.
Because it’s so hard to contest a pardon — even one that is clearly outside the scope of the power’s intended use — the legal experts I spoke with were concerned that Trump’s use of the clemency power could pave the way for even further abuses. A president could, for instance, convince subordinates to commit crimes with the promise of a pardon on the other end. That last scenario isn’t even all that far-fetched. As the Watergate scandal unraveled, Nixon secretly promised his aides that they would be pardoned, although he ultimately didn’t follow through.
So far, presidents have been constrained in their use of the pardon power by norms and fear of political backlash. What’s more, Congress can’t rein in a president’s pardon power. Any limits on a president’s ability to grant clemency — short of a Supreme Court ruling on something undecided, like a self-pardon — would have to come via a constitutional amendment, which would be very difficult to do. In the meantime, though, Americans might come to conclude that pardons and commutations are simply an avenue for presidential corruption, turning their use into even more of a political minefield. That would be an issue, too, Barkow said, since people who are convicted of federal crimes aren’t usually eligible for parole, meaning an act of presidential clemency may be their only hope for a reprieve.
“I’m a big believer in clemency, because there’s always a need for it — laws are written too broadly, judges give sentences that are too long, people change over time and they need their records cleared,” Barkow said. “In fact, I think presidents should be using it a lot more. But when the power is abused, it becomes a lot harder to make that case.”