The lame-duck days of most American presidents usually entail a handful of pardons. That’s because the Constitution vests the President with the power to absolve any individual for any federal crime, without the approval of Congress or the judiciary. And while President Trump has not yet admitted that he will be moving out of the White House on January 20th, The New York Times reports that several of his closest associates are vying for pre-emptive pardons. Among them is Rudy Giuliani, Trump’s personal lawyer who is still leading the effort to undermine the election results.
According to the Times, which sites an anonymous source, Trump has already discussed pre-emptive pardons for his inner circle. They include his sons, Donald Trump Jr. and Eric Trump, his daughter Ivanka Trump and his son-in-law Jared Kushner. Of course, it seems suspicious (if not unnecessary) to pardon an individual who’s not accused of a crime. So why exactly would Trump be interested in pardoning his closest confidantes?
For one, it is important to understand Trump’s outlook on the legal system, which he often views as purely transactional. Shortly after assuming office in 2017, then-Director of the FBI James Comey claims that the president demanded personal loyalty. He also requested that any investigation into the Trump campaign’s ties with Russia immediately end. Comey has since expressed his belief that Trump views any such investigation as a personal attack, rather than an objective inquiry into events.
As such, Trump has reportedly told advisers that he fears a Biden administration will seek retribution on him and his closest allies. Therefore, it doesn’t matter whether his children or personal lawyer have committed crimes, because in Trump’s view, they might be prosecuted out of pure spite. And that makes him look bad.
Still, some in Trump’s inner circle may have legitimate reasons to fear prosecution. Donald Trump Jr., for instance, was under investigation by special counsel Robert Mueller for his alleged contacts with Russia, though he was never charged. Jared Kushner, meanwhile, may have falsified information about his own foreign contacts when he applied for White House security clearance. After multiple corrections to the forms, he ultimately received the clearance anyway. President Trump may view either of these instances as bait for a hostile Biden Justice Department.
Then there’s Giuliani, the former New York Mayor who has become a media star in recent months for peddling conspiracy theories at a bevy of farcical press conferences. While it is not obvious which crimes would merit a presidential pardon, Giuliani was a key character in the impeachment of President Trump. Giuliani’s business and personal ties to Ukraine were central to the accusation that Trump tried to strongarm the Ukrainian president into investigating Trump’s political rivals. Whether Giuliani committed something resembling a crime notwithstanding, Trump likely fears that the Biden Justice Department will investigate Giuliani’s foreign activities.
Can a president even pardon someone pre-emptively?
Then there’s the question of whether a president can even pardon someone before they’ve been accused of wrongdoing. While it is a highly unusual maneuver, it isn’t without precedent.
George Washington offered a blanket pardon to all who participated in the Whiskey Rebellion, shielding them from charges of treason. Centuries later, President Gerald Ford famously pardoned his predecessor, Richard Nixon, for all of his actions as president. And the next president, Jimmy Carter, pardoned thousands of Americans who had illegally avoided the draft during the Vietnam War.
Furthermore, Trump has already issued multiple pardons, including several high-profile friends who were imprisoned during his presidency. Among them, Roger Stone, the notorious political fixer who was convicted of seven felonies under the Mueller investigation. And just this month, Trump pardoned his former national security adviser, General Michael Flynn, who ended up in prison after admitting in court to lying to federal investigators about his ties to Russia.
As for Giuliani, he has commented that the Times piece is “completely wrong” and that he has never discussed a pardon with Trump. Still, if Trump did intend on pardoning his loyal lawyer, he would have to spell out exactly what offense Giuliani had committed. That may prove more trouble than a pardon is worth.
There is a down side to a pardon. Once accepted, the pardoned person can no longer plead the 5th amendment about related crimes. That’s because answering questions no longer puts the person in jeopardy, a fact that could put fear in Donald Trump.