Trump, Russia and the Intensifying Talk About Pardons: QuickTake

(Bloomberg) -- The U.S. president has vast constitutional power to grant pardons to people facing possible prison terms even before charges are filed, or to commute the sentences of folks already languishing in jail. President Donald Trump has at least broached the possibility of using pardons to short-circuit the investigation into whether he or his campaign were involved in Russia’s interference with the 2016 presidential election, which he calls a "witch hunt." Trump has gone so far as to say he can pardon himself, something that no president has ever done.

1. What is a presidential pardon?

It’s an act of presidential forgiveness rooted in Article II, Section 2 of the U.S. Constitution. A pardon wipes the slate clean for the recipient, even halting judicial proceedings that are under way. George Washington pardoned farmers convicted of treason after the 1791 Whiskey Rebellion. Grover Cleveland cleared Mormon polygamists in 1894 as part of Utah becoming a state. More recently, George H.W. Bush pardoned aides tied up in the Iran-Contra scandal, and Barack Obama commuted the sentences of hundreds of non-violent drug offenders.

2. Why are pardons arising as an issue for Trump?

Special Counsel Robert Mueller’s probe into Russian meddling has broadened in scope and is threatening the president’s inner circle. In a 2017 letter, Trump’s legal team reminded Mueller of the president’s right "to pardon any person before, during or after an investigation and/or conviction," and Trump periodically mentions his power to pardon. It’s a power that could lead others in his orbit to refrain from striking plea agreements with prosecutors, believing they’d be pardoned before spending a day in jail. Four former Trump advisers have been charged, including his onetime campaign chairman, Paul Manafort, and first national security adviser, Michael Flynn. The president’s longtime personal attorney, Michael Cohen, is also under federal criminal investigation, though he hasn’t been charged.

3. Who has Trump pardoned?

So far, nobody tied to his campaign or administration. But some of his pardons have been of popular political conservatives. They include author Dinesh D’Sousa, who pleaded guilty in 2014 to using straw donors to evade campaign finance limits; I. Lewis "Scooter" Libby, the former chief of staff to Vice President Dick Cheney who was convicted in 2007 of perjury and obstructing justice; and Joe Arapio, the former Maricopa County, Arizona, sheriff who was found guilty of criminal contempt of court in 2016.

4. Could Trump pardon himself?

He certainly thinks so. Trump tweeted on June 4 that he has "the absolute right" to pardon himself, though he says he hasn’t done anything wrong. P.S. Ruckman, a political science professor at Rock Valley College in Rockford, Illinois, who runs a blog about presidential pardons, agrees. "He could write his pardon down on a napkin and sign it -- that would be a pardon," Ruckman said. Standard procedure for presidents is to let the Justice Department vet possible pardons -- but that’s not required by law, and Trump ignored this step on each of his first five pardons.

5. What would happen if Trump did pardon himself?

It would almost certainly be challenged, but how? If the self-pardon was in response to being charged by the special counsel, Mueller could challenge the pardon in court. Experts point to legal advice given to President Richard Nixon in 1974 in connection with the Watergate scandal: "Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself." That advice hasn’t ever been tested in court. Trump’s own lawyer, Rudy Giuliani, said Trump pardoning himself "would be unthinkable” and would likely lead to attempts to remove him from office. Members of Congress can start impeachment proceedings against a president for any matters they deem "high crimes and misdemeanors," which can include abusing the powers of the presidency.

6. Would a pardon be an admission of guilt?

Not necessarily. "People have traditionally said forgiveness pardons are admissions of guilt, but there are pardons for innocence too," and "pardons for miscarriages of justice," said Margaret Love, who was the U.S. pardon attorney from 1990 to 1997. "There are lots of reasons a president might issue a pardon that wouldn’t involve an admission of guilt." Trump would likely frame any such pardon as a necessary maneuver to avoid the injustice of an investigation into what he has called a fake scandal concocted by his enemies.

7. Would pardons end the Russia investigation?

Since presidential pardons apply to federal crimes, any pardons issued by Trump would hamper the federal investigation being led by Mueller. But state-level investigations could proceed, including in New York, where state and local prosecutors are known to have at least started probes related to Trump allies. New York is where the Trump campaign was based, and where Cohen, Trump’s legal troubleshooter, lives and is under federal investigation. If Trump really wanted to end the federal investigation, he could try to fire Mueller -- something he said he has the right to do.

The Reference Shelf

©2018 Bloomberg L.P.