President Trump has abused the pardon power like none of his predecessors. But we likely ain’t seen nothing yet. Now that he has lost the election, Mr. Trump will likely pardon himself, friends, family members and Trump business entities and employees for any crime they might have committed before or during his presidency.
Mr. Trump’s pardons to date, and those likely to come during a transition, reveal the problems with the supposed “absoluteness” of the pardon power — and should prompt legal reform to clarify limits on its abuse.
The pardon power that the Constitution confers on the president has just two stated limitations: A president cannot pardon for impeachment, and a presidential pardon can excuse or mitigate punishment only for federal offenses. There is little that can be done at this point to stave off a potential wave of pardons in the lame duck period, but the federal crime limitation means that Mr. Trump cannot stop state criminal investigations, including one in progress by the Manhattan district attorney into possible bank and insurance fraud by Mr. Trump and his companies.
But for federal crimes, the president can — with the stroke of a pen — erase a criminal conviction or criminal exposure for basically whomever he wants and for almost any reason. Unsurprisingly, Mr. Trump’s pardons and commutations have largely served his personal interests.
Notorious examples include the pardon for Joe Arpaio, the former Arizona sheriff who was convicted of defying a federal court order against profiling Hispanics; the pardons for the president’s political supporters Conrad Black and Pat Nolan; and the sentence commutation for Mr. Trump’s friend Roger Stone, who was convicted of obstruction of justice and related crimes and who many believe refused to implicate Mr. Trump in the hope of presidential relief from punishment.
Such self-serving pardons are not without precedent. Bill Clinton pardoned his half brother, a friend who refused to cooperate with the independent counsel investigating the president and two notorious fugitives from justice who were suspected of obtaining favorable consideration through an aggressive lobbying campaign and the support of politically influential allies. George H.W. Bush pardoned the former defense secretary Caspar Weinberger and several national security officials who had been convicted or indicted on a charge of perjury and obstruction of justice in connection with the Iran-contra scandal, in which Mr. Bush himself was suspected of criminal involvement.
But even against this background, Mr. Trump’s pardons have been unusual.
First, of the 41 people who received pardons or commutations (or both) from Mr. Trump, 36 (or 88 percent) have a personal or political connection to the president. They advanced an aspect of Mr. Trump’s political agenda, knew the president personally (or had a connection to someone close to him), were someone he learned about on television (usually on Fox) or a celebrity he admired. By contrast, only five of Mr. Trump’s pardons lacked a personal or political connection and appeared to be vetted through the traditional Justice Department clearing process. No president has come close to using the pardon power in such persistently self-serving ways.
Second, Mr. Trump issued almost all of these controversial and self-serving pardons well before the end of his first term. Most presidents have waited to issue most such pardons in the weeks before they left office. Mr. Trump’s pardons and commutations have been far more brazen. Now that he has lost the election, it’s plausible to assume he will go all in on self-serving pardons.
Still, there are limits to a pardon spree. As Attorney General William Barr testified during his confirmation process, a pardon granted in order to corrupt a judicial proceeding can amount to a criminal obstruction of justice. Mr. Trump’s pardons will be closely scrutinized for any purpose to thwart an investigation or pending prosecution threatening to him, a family member or close associate.
Mr. Trump has proclaimed “the absolute right to pardon myself.” While neither the Constitution nor judicial precedents overtly speak to the issue, the Justice Department declared in 1974 a self-pardon would “seem” to be disallowed “under the fundamental rule that no one may be a judge in his own case.” Scholars are torn on the matter. The issue, which would arise if after Mr. Trump leaves office the new administration indicts him for a crime for which he pardoned himself, can be settled only by the Supreme Court.
There is little that can be done at this point to stave off a probable wave of opportunistic pardons. But in light of what we already know about his pardon practices, Congress should enact two reforms to prevent future abuses.
First, it should check the most extreme abuses of the pardon power by expressly making it a crime for a president to issue a pardon as part of a bribe or as an inducement to obstruct justice. Current law does not explicitly cover the president and should be reformed to leave no doubt. Second, Congress should declare that presidential self-pardons are invalid. Such a declaration would not resolve the constitutional question, but it could inform the answer when a court addresses it.
It might be that Mr. Trump’s pardons prove so abusive that a constitutional amendment to the pardon power will be warranted. The challenge in that case will be to draft an amendment that checks presidential abuses without curtailing a vitally important mechanism, when properly deployed, for mercy and reconciliation. This is one of many ways that Mr. Trump’s abuses of presidential power will have long-lasting consequences for American justice.
Jack Goldsmith (@jacklgoldsmith), a law professor at Harvard, a senior fellow at the Hoover Institution and a former assistant attorney general in the George W. Bush administration, is a co-author, with Bob Bauer, of “After Trump: Reconstructing the Presidency.”