In modern history, Presidents have traditionally granted pardons or commuted sentences just before leaving office.
What You Need To Know
- In modern history, Presidents have traditionally granted pardons or commuted sentences before leaving office
- Since taking office, President Donald Trump has granted executive clemency to dozens of people, starting with former Maricopa County, Ariz., Sheriff Joe Arpaio in Aug. 2017
- A number of Trump's associates could potentially be in that number, including Paul Manafort, Michael Flynn and Roger Stone
- The president might also seek to pardon himself, although it's not crystal clear if his pardon power allows him to do so
Barack Obama reduced the sentence of Chelsea Manning, the Army intelligence analyst convicted of leaking military and diplomatic secrets; Bill Clinton pardoned his brother, Roger, on a decade-old drug charge; and George H.W. Bush pardoned his former defense secretary, Caspar Weinberger, for his involvement in the 1980s Iran-Contra scandal.
Last-minute pardons allow outgoing presidents to largely evade the sort of political fallout they might face earlier in their presidency.
It would come as no surprise if President Donald Trump exercises his clemency power in his final days in the White House – Trump has issued several pardons since taking office, starting in Aug. 2017 with former Maricopa County, Ariz., Sheriff Joe Arpaio. A number of his associates could potentially be in that number.
One question that first emerged during Special Counsel Robert Mueller’s investigation into potential ties between the Trump campaign and Russia was whether Trump could pardon himself.
The answer is not crystal clear.
Trump wrote on Twitter in 2018 that he has the “absolute right” to pardon himself.
No president has ever tried it, and the matter has never been heard by the courts. While the Constitution does grant the president broad pardon power, some legal experts argue that a self-pardon would be unconstitutional because the president would in essence be serving as a judge in his own case.
Presidents cannot pardon themselves in matters of impeachment. During the confirmation hearings of President Trump's third Supreme Court nominee Amy Coney Barrett, Judge Barrett declined to answer a question about whether or not a president can pardon themself, but said she agrees that no one is above the law.
The Mueller investigation found several instances of alleged obstruction of justice that Attorney General William Barr declined to prosecute. Trump could also potentially face campaign finance violations related to the "hush-money" payments to cover up Trump’s alleged extramarital affairs – the same such payments that helped send his lawyer, Michael Cohen, to prison. And The New York Times reported in September that the IRS is looking into a $72.9 million tax refund Trump applied for and received in 2010.
The White House has not responded to a request for comment on this story. Trump has still not publicly acknowledged his election defeat to Joe Biden earlier this month.
NBC News reported Tuesday that Biden is wary of investigations into Trump because they would hamper his efforts to unite the country. But Biden also wants to reestablish the Justice Department’s independence from the White House and won’t tell law enforcement officials whom or what to investigate, the report said.
Even if Trump can preemptively pardon himself, it would only protect him against federal prosecution. Manhattan District Attorney Cy Vance and New York state Attorney General Letitia James are both investigating Trump and his business practices in probes that would not be covered by a pardon.
As for other people who could be pardoned, here are some who might be on Trump’s list:
Paul Manafort, Trump’s former campaign manager, was sentenced in March 2019 to 47 months in prison for financial crimes. In May, he was released from prison and allowed to serve the remainder of his sentence at home. Trump has said Manafort’s prison sentence was “very unfair.”
Michael Flynn, who served as Trump’s national security adviser for 23 days in 2017, twice pleaded guilty to lying to FBI agents about his conversations with former Russian Ambassador Sergey Kislyak regarding sanctions imposed by the Obama administration. In January, the Justice Department suddenly sought to drop the charges against Flynn, but a judge will decide whether to grant that request. Trump and his allies have publicly criticized the prosecution of Flynn.
George Papadopoulos, a foreign policy adviser on Trump’s 2016 campaign, pleaded guilty to lying to the FBI about his contact with Russian operatives and served 12 days in prison. Papadopoulos’ lawyers have reportedly asked Trump for a pardon after their client served his time.
In July, Trump commuted the 40-month sentence of his longtime confidant Roger Stone on seven counts of lying to Congress, obstructing justice and tampering with a witness as he attempted to thwart a House investigation into ties between Trump’s 2016 campaign and Russia. Stone’s conviction, however, still stood. Stone dropped his appeal of the verdict in August arguing he believed it was impossible for him to receive a fair hearing. Trump has said he believes his friend was treated “unfairly.”
Authorities reportedly launched an investigation last year into Rudy Giuliani, President Trump’s personal attorney. Federal prosecutors were reportedly looking into whether the former New York City mayor violated foreign lobbying disclosure laws while he was in Ukraine digging for dirt on Biden. It’s unclear where the investigation stands, but Trump could use his pardon power to ensure it goes no further.
Steve Bannon, a former Trump campaign chief executive and White House strategist, was arrested in August and charged with defrauding donors who gave money to a fundraising campaign for a southern border wall. Trump and Bannon had a public falling out in 2017, but Bannon reportedly boasted to friends before his arrest that he and the president had occasionally been speaking about a variety of topics.
Charles Kushner, the father of Trump’s son-in-law and senior adviser Jared Kushner, served 14 months of a two-year prison sentence in 2005-06 for illegal campaign contributions, tax evasion and witness tampering. Charles Kushner, a real estate developer, told The New York Times in 2018 he’d "prefer not to have a pardon" because of the publicity it would bring. (It’s worth noting that Jared Kushner was picked earlier this year to lead a team advising Trump on pardons and commutations.)
Former aides told CNN that Trump has been asking about the possibility of a self-pardon dating back to 2017, as well as pardons for his family, according to one former White House official.