What You Need to Know About Presidential Pardon Power

(Bloomberg) -- The U.S. president has vast constitutional power to grant pardons to people facing possible prison terms or to commute the sentences of individuals already in jail. Legally speaking, nothing can stop a president from employing pardons to short-circuit even a prosecution that threatens him personally. According to Trump’s lawyer, representatives of several people caught up in federal investigations into Trump’s 2016 campaign and subsequent presidency have inquired about whether Trump might pardon their clients.

1. What is a pardon?

It’s an act of presidential forgiveness rooted in Article II, Section 2 of the U.S. Constitution that wipes the slate clean for the recipient, even halting judicial proceedings that are under way. Alexander Hamilton, explaining the purpose of pardons in Federalist Paper No. 74, said that the severity of a criminal code demands "an easy access to exceptions in favor of unfortunate guilt," without which "justice would wear a countenance too sanguinary and cruel." 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. George H.W. Bush pardoned aides tied up in the Iran-Contra scandal. 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. Cohen pleaded guilty to tax evasion, bank fraud and making illegal campaign contributions (at Trump’s behest, he says) and faces three years in prison. Paul Manafort, Trump’s onetime campaign chairman, was sentenced to seven and a half years in prison for bank fraud, tax crimes, illegal foreign lobbying and witness tampering. Trump’s disdain for the investigations is clear: Even after Mueller’s inquiry closed without implicating him, Trump called it “an illegal takedown that failed.” So it’s at least theoretically possible that he could use pardons to reward associates who refused to cooperate. Trump has gone so far as to say he could pardon himself, should it come to that -- something that no president has ever done.

3. Are Cohen and Manafort seeking pardons?

That’s one of many points of contention between Trump and Cohen, former allies now in a very public war of words. Cohen testified in Congress that he never sought a pardon; Trump responded on Twitter that Cohen "directly asked me for" one. Cohen’s lawyer, Lanny J. Davis, said a previous attorney for his client did inquire about a pardon, but only because Trump’s team had "dangled" the possibility of one. As for Manafort -- who unlike Cohen hasn’t turned on the president, at least publicly -- Trump told reporters on March 13 that while he feels “very badly” for his former campaign chairman, a pardon "is not something on my mind."

4. 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 Arpaio, 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.

5. Would pardons end the criminal probes?

Since presidential pardons apply only to federal crimes, any pardons issued by Trump wouldn’t affect state-level investigations, including in New York, where the Trump campaign was based and where Cohen’s admitted misdeeds took place. Manhattan District Attorney Cyrus Vance Jr.’s office has indicted Manafort on state charges of residential mortgage fraud and falsifying business records.

6. Could Trump really pardon himself if the need arose?

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 lawyer, Rudy Giuliani, said Trump pardoning himself "would be unthinkable” and would likely lead to attempts to remove him from office.

The Reference Shelf

• QuickTake explainers on the Trump-Russia saga, impeachment and who’s still investigating what.
• The Justice Department’s running lists of Trump pardons and commutations.
• A look at whether Manafort might get a pardon.
• New York prosecutors have a plan in case Trump pardons Manafort.
• 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

©2019 Bloomberg L.P.