What You Need to Know About Presidential Pardons

(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 in jail. President Donald Trump has broached the possibility of using that power 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. With Trump’s former campaign chairman and former personal attorney facing prison, the president’s power to pardon is getting renewed attention.

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?

Because two criminal investigations -- Special Counsel Robert Mueller’s probe into Russian meddling, and a federal probe in New York into former Trump lawyer Michael Cohen -- have singed the president’s inner circle, and because Trump has made clear his interest in pardons. 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." In theory at least, Trump could pardon Cohen (who pleaded guilty on Aug. 21 to tax evasion, bank fraud and making illegal campaign contributions at Trump’s behest) and Paul Manafort, his onetime campaign chairman, who was convicted on Aug. 21 of fraud charges relating to actions he took years before he joined the Trump campaign, and pleaded guilty to separate charges on Sept. 14. Either man could -- again, in theory -- seek to offer incriminating evidence on Trump in an effort to get a lesser sentence.

3. Whom 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. 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 pardons so far.

4. Are Cohen and Manafort seeking pardons?

Not publicly, if at all. Cohen’s lawyer, Lanny Davis, says his client wouldn’t accept one if offered. Unlike Cohen, Manafort stood up to federal prosecutors and fought the initial set of charges in court, before relenting to legal pressure by pleading guilty and promising to cooperate with the U.S. Justice Department. Trump did offer some sympathetic words for Manafort after his initial conviction, when he was flatly refusing to cooperate in Mueller’s probe of Russia’s role in the 2016 election.

5. Could Trump pardon himself?

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.

6. Would pardons end the criminal probes?

Since presidential pardons apply to federal crimes, any pardons issued by Trump would likely hamper the federal investigation being led by Mueller. But state-level investigations could proceed, including in New York, where the Trump campaign was based and where Cohen’s admitted misdeeds took place. 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

• QuickTake explainers on the Trump-Russia probe, impeachment and why Mueller is one person Trump can’t easily fire.
• The Justice Department’s running list of Trump pardons.
• A look at whether Manafort might get a pardon.
• Trump is testing the limits of presidential power.
• The 1974 Justice Department memo on the question of a president pardoning himself.
• Richard Nixon resigned as president three days after that memo came out. 
• Gerald Ford, the next president, pardoned Nixon on Sept. 8, 1974.
• "Pardon Power," a blog by pardon expert P.S. Ruckman.

To contact the reporter on this story: Erik Larson in New York at elarson4@bloomberg.net

To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Laurence Arnold

©2018 Bloomberg L.P.