Executive Orders Legality of President Trump's Actions

Could Trump Pardon Flynn (or Kushner)?

What does the Constitution Say?

“The President […] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” (Article II, Section 2)

 

How broad is the Pardon Power?

The Constitution does not seem to place many limits on this power. The only thing it specifies is that the pardon has to be for crimes “against the United States” (hence, federal and not state crimes) and that it can’t be used in impeachment cases. Therefore, yes, the President can pardon Manafort, Flynn, Kushner, or even his own children.

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Problems in using the Pardon Power:

  1. If Trump pardons them with the intention of thwarting the Russia investigation and saving himself from any future trouble in relation to this probe, he could be committing the crime of obstruction of justice. This is an impeachable offense. 
  2. They could not plead the Fifth. If Trump pardons, say, Kushner, Kushner will no longer face the threat of prosecution. Because the Fifth Amendment’s purpose is to protect one’s right against self-incrimination, he would have to answer any questions asked to him during someone else’s criminal proceedings. If he were asked to testify against Trump or Trump’s sons, for example, he would be forced to answer those questions.
  3. If Trump pardons any of them, they would be immune from federal prosecution… but states could still prosecute them. The President does not have the power to pardon someone for violations of state law. Hence, the pardons would not guarantee absolute immunity.
 

Could the President pardon himself?

In theory, the wording in the Constitution could allow such a thing. But, as Nixon’s Office of Legal Counsel opined, a broader reading of the Constitution prohibits this. Our basic democratic tenets require that no one be a “judge in his own case.”

Of course, Trump could pull a Nixon move and step down, letting Pence take over and pardon him. We just have to wait and see.

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