One of the core conceits of Donald Trump’s presidency has been that he, his family, and his friends should never have to suffer consequences for anything. And for much of the past four years, it has seemed like perhaps they never would: His sins were forgiven by toadying Republicans, and those of allies like Roger Stone and Michael Flynn were erased by him or his politicized Justice Department. But with the protections his presidency afforded him set to expire next month, and investigators waiting to greet him in his return to civilian life, he seems concerned that the bill for a lifetime of malfeasance could finally come due.
Desperate to avoid all that, he has reportedly discussed preemptively pardoning himself—something that may or may not be possible—and his kids. And, as long as he’s handing them out, some of the shadier figures in his orbit, namely Rudy Giuliani, are also said to have inquired about the possibility. But apparently, Giuliani may not even need to ask. Sources familiar with the president’s conversations told Axios Tuesday that Trump is planning on spending his last weeks in office on a pardoning spree, telling associates that he will issue the get out of jail free cards “like Christmas gifts,” whether the recipient needs one or not.
The idea here, of course, is that Trump has engaged in a whole lot of brazen corruption these past four years, and could soon face a whirlwind of investigations, and a lot of people who work with him could soon become similarly vulnerable—so to protect them, and presumably to keep anyone from flipping on him, he’ll just send them home with a presidential pardon as a farewell gift. While one imagines that’s welcome news for folks like Giuliani, Jared Kushner and any administration or pseudo-administration officials with the last name Trump, not everyone is so thrilled.
To receive a pardon is to suggest you broke the law. Not everyone believes they did, and don’t really like the idea of having the baggage that inevitably comes with seeming like a potential crook who escaped justice with a preemptive pardon. In the case of at least one aide, that’s made things awkward. It’s always socially uncomfortable to look a gifthorse in the mouth. But how do you politely tell your would-be gifter that you don’t need one because, unlike him, you probably don’t have investigators bearing down on you?
It’s worth noting that Trump wouldn’t be the only president to go on a pardoning spree on his way out the door; Bill Clinton famously issued 140 of them on his final day in office in 2001. He also wouldn’t be the first to issue a preemptive pardon; Gerald Ford pardoned his predecessor, Richard Nixon, before he’d faced a charge. And while it’s certainly unsavory watching Trump clear his cronies of crimes, as rewards for their loyalty or to settle scores, he is as president afforded extremely broad pardoning power. If he wants to use his authority to keep the feds away from Donald Trump Jr., there’s nothing stopping him from doing so.
The caveat, however, is that he has no authority over the states—so he can’t use the pardon to keep the Southern District of New York away from Giuliani, for instance, or use a self-pardon to keep Cy Vance from looking into the campaign finance violations, fraud, and tax evasion he may have committed. And whether the Constitution even allows him to pardon himself remains an open question—mostly because it’s so plainly out of bounds, it doesn’t seem to have occurred to the Founding Fathers to explicitly forbid it. “For them, I believe it would have been unthinkable that the American people would ever elect the kind of person who would pardon himself,” Mark Tushnet, a retired Harvard Law School professor, told the Associated Press. “Which is why they didn’t say anything about the possibility.”
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