By the time this column hits the press, we should be in full and final pardon season. It is expected that President Donald Trump will issue approximately 100 more pardons during his last days in office.
These late-term pardons are nothing new, former President Bill Clinton pardoned 140 people on his last day in office, including his own brother.
Among others, President Trump has already pardoned former Arizona Sheriff Joe Arpaio (convicted of criminal contempt of court), former Gen. Michael Flynn (pled guilty to lying to the FBI), Roger Stone (convicted of witness tampering, obstructing, and making false statements), Paul Manafort (convicted of tax and bank fraud, pled guilty to conspiracy), and Charles Kushner (convicted of illegal campaign contributions, tax evasion, and witness tampering).
It is likely that more friends and family will be pardoned by President Trump, and he may even attempt to pardon himself. There is no clear consensus on whether a sitting president can grant a self-pardon. In order to issue a self-pardon, it has been theorized that a president would have to invoke the 25th Amendment, declare himself unable to perform his duties, then the Vice President could issue a pardon as the acting President.
What exactly is a pardon? A presidential pardon is when a president of the United States issues a federal order that completely sets aside punishment for a federal offense.
Presidents used to handwrite pardons. Article II, Section 2, Clause 1 of the United States Constitution grants this clemency power of the president. When a person accepts a pardon, the United States Supreme Court has found that there is an “imputation of guilt” that goes along with it. Presidents can also commute or reduce sentences.
There are many examples of prior presidential pardons. After former President Richard Nixon resigned from office following the Watergate Scandal, incoming President Gerald Ford granted Nixon a broad pardon covering any federal offense that Nixon may have committed during a set time period. This was unusual because Nixon had not been charged or convicted of any offense, despite indictments for 69 persons involved, including 48 convictions of many top Nixon officials.
These presidential pardons only apply to federal cases, not violations of state law. There is a pending investigation by the New York County District Attorney’s Office into President Trump’s alleged hush-money payments to two women with whom he is alleged to have had affairs. This has now expanded to the Trump Organization to look at possible tax and insurance fraud. After battles to obtain President Trump’s tax records, the United States Supreme Court held in Trump v. Vance (2020), that a sitting president does not have absolute immunity from state criminal subpoenas for items such as tax records. If these matters are prosecuted in state court, President Trump would not benefit from a federal presidential pardon.
In 1795, President George Washington granted pardons to several convicted leaders of the Whiskey Rebellion. The Whiskey Rebellion was an uprising by western Pennsylvania farmers who objected to a new whiskey excise tax. It culminated when more than 500 armed men attacked and burned the home of a whiskey tax collector. Washington actually led a group of 13,000 militia to suppress the insurgency. Washington’s pardons of these insurrectionists were extremely controversial at the time. In that light, it will be interesting to see who President Trump pardons this week.
This page is available to subscribers. Click here to sign in or get access.