Since Trump has talked about pardoning himself, his family and others, there has been considerable interest in the scope of the pardon power. LegalEagle has an excellent video that walks through key questions about the pardon based on precedent and legal scholarship. My interest, though, is with a seemingly crazy question: could Trump (or any president) pardon everyone for everything forever?
While this question might seem stupid, it is worth considering because it is an invitation to explore the limits of the pardon power of the president. Here is the law as written in the Constitution: “…he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Since this is a mere single sentence, I will also need to rely on legal precedents and informed speculation on the part of Constitutional scholars to answer my question. I will begin with the matter of pardoning everyone.
While there is the question of whether the President can pardon himself, the President can clearly pardon anyone else. The President can also issue mass pardons, as Carter did in the case of the draft dodgers. Since the Constitution does not specify a numerical limit, then Trump does have the power to pardon everybody. If he can pardon anyone and issue mass pardons, then there would seem to be no line that can be drawn forbidding him from extending pardons to everyone. As such, Trump can pardon everyone. But can he pardon everyone for everything?
There are two limits specified on the pardon power. The first is that the pardon only applies to “offenses against the United States.” This has been established to mean federal crimes and so Trump cannot pardon people for state crimes. There have been some attempts to argue that “offenses against the United States” includes all crimes because the states are parts of the United States; but this argument has never gained any traction. But this could certainly change with a court ruling. The second is that the President cannot pardon in cases of impeachment (Presidential or other). These are the only two limits. As such, the President could pardon anyone for any (or all) federal offense except for impeachment. The final question is whether Trump could pardon forever.
Thanks to Gerald Ford’s pardon of Nixon, the pardon power has been shown to apply preemptively to crimes for which a person has not been convicted and even those for which a person has not been charged. Ford was acting according to well established law; the Supreme Court ruled that the power to pardon applies “to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” As such, the President could pardon anyone for everything (except state crimes and impeachment) after the commission of the offense. This does raise the question of how far back in time an offense can be and still be pardonable. The obvious answer is that since the offense must be committed against the United States, the oldest offense that could be pardoned would be set by the origin date of the United States. But what about future crimes?
Talk of pre-emptive pardons can be a bit confusing since this could be taken as pardoning someone for an offense they have yet to commit. But, as noted above, the ruling is that the pardon must come after the offense has been committed. As long as this ruling stands, then Trump cannot pardon people for offenses they have yet to commit. As such, Trump cannot issue a pro-active pardon for an offense that has yet to be committed. So, he cannot pardon everyone for everything forever. While not directly related to time, there is also the question of whether the President can pardon someone for an offense they did not commit.
On the face of it, there would seem to be no reason to pardon a person for an offense they did not commit—they would have no need for it. To use an analogy, it would be like giving someone medication for an illness they do not have—it would be pointless. But one might think, a person who has committed no offense might as well accept a pardon. However, this could be a problem for them since the Supreme Court has also ruled that accepting a pardon “carries an imputation of guilt and acceptance carries a confession.” As such, anyone who accepts a pardon from Trump is admitting guilt and confessing to the offense. While they would avoid the legal consequences for the federal offense, this could impact their reputation (assuming they have any left) and could be used against them in various ways. For example, a case can be made that a person pardoned for an offense can no longer plead the Fifth on that offense—they cannot incriminate themselves because they have already admitted guilt by accepting the pardon. But there could be cases in which a person who had committed no offense might want a pardon.
If an innocent person is likely to be charged with an offense they did not commit and they are likely to be convicted, then it would be reasonable to accept a pardon. As an authoritarian Trump sees Justice Department as his and as a tool to use against his enemies. He has been enabled in this by Attorney General Barr. This is consistent with his being a “law and order” President, since “law and order” is commonly used as a racist code for repression of minority communities. While Trump is perhaps not serious, he persistently calls for Hillary Clinton to be locked up. It could be that Trump believes that Biden and the Democrats also see the law as he sees it: a weapon to be wielded and a tool to be exploited. As such, it makes sense for him to think that the Democrats might go after his family and associates without concern for the facts—since this is exactly what he would do if he could get away with it. Trump could thus try to pardon people for crimes he claims they did not commit to protect them from vengeful prosecution. There are few problems with this approach.
One problem is that Biden and the Democrats will not make up fake offenses to charge Trump’s family and associates with. Laying aside any claims about Biden being committed to the rule of law, Biden and the Democrats simply do not need to make up offenses—Trump and his associates have been busy committing offenses.
A second problem is that this line of reasoning falls apart. While Trump could issue pardons for any and all federal offenses said to have been committed prior to the pardon, he will lose his power to pardon when he is no longer President. If the Democrats were willing to just make up crimes, then they could just say the made-up crimes occurred after Trump’s pardon. They could also just make up state crimes. Or just have people in vans take away Trump’s associates. As such, Trump’s pardons only make sense if those pardoned committed the crimes and Trump believes that the Democrats will not just make up crimes.
A third problem is that the ruling is specific that the pardon must occur after the offense. If no offense was committed, then it cannot be pardoned. As such, Trump cannot claim that his family and associates committed no crimes while also pardoning them. Circling back, his family and associates would admit guilt by accepting the pardons and Trump could only pardon them if they committed the offenses. If they insist they committed no offenses, then they cannot accept the pardons and Trump cannot grant them a pardon for an offense that did not occur.
If Trump states that they did not commit any offenses and issues pardons to pre-empt allegedly unjust investigations, then this could result in Supreme Court case. Trump being Trump, he might very well insist that those he pardons have committed no offenses but he is pardoning them for these offenses.
On the one hand, pardoning someone for an offense they did not commit would seem to be something the President cannot do: they can only pardon an offense after the offense has occurred. On the other hand, a ruling might allow this on the grounds that if the pardon does not hold, then the person could be convicted of the offense that they were pardoned for (even though they denied they committed it)—which would be an obvious problem. At the heart of this matter is whether the President can pardon something for an offense they did not commit—while the obvious answer would seem to be “no”, the law can be a strange thing.
To close, Trump could pardon everyone for every federal offense committed prior to his pardon. But he cannot pardon everyone for everything forever.
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