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The breaking news that former president Donald J. Trump has been indicted again raises anew the possibility that the next president may decide to pardon him for any federal convictions. If that day comes, a Trump pardon will first trigger an emotional response, whether joy or outrage, much like the Nixon pardon did nearly five decades ago. And then, after enough time has passed, the public will reevaluate: Was it an abuse of power? A mistake? An act of statesmanship?
The answer may vary depending on who pardoned Trump, and under what circumstances.
Over 230 years ago, the Framers of the Constitution debated the terms of a clemency power to be included in the Constitution. Alexander Hamilton argued in Federalist 74 that the president's pardon power should serve two overarching purposes: to show mercy or vent societal pressure caused by war or uprising.
Pre-Trump, recent pardons have often focused on older, non-violent offenses. Sometimes the crimes pardoned are more trivial—defacing coins, stealing cable or moonshining—and sometimes they are serious, such as drug crimes. Most of the time, clemency grants randomly pop up, are analyzed by the media, and we all move on.
Clemency petitions are usually vetted by the Office of the Pardon Attorney in the Department of Justice. This bureaucratic apparatus is usually a dead end for clemency applicants, as the office recommends mercy in a very select number of cases. The clemency decisions that receive more than a passing glance from the public are usually the abuses, such as President George H. W. Bush pardoning Caspar Weinberger (among other Iran-Contra figures) to avoid legal complications, or Bill Clinton pardoning his half-brother Roger and the wealthy fugitive Marc Rich.
President Trump shunned the Pardon Attorney, among other institutions, throughout much of his term, and from his pardon of ex-Sheriff Joe Arpaio onward, his approach to presidential clemency was controversial. Notably, only 25 of his 238 clemency decisions—about 10 percent—went through the usual channels. Moreover, he was not shy about using clemency to aid his friends, political allies, celebrities, and others whose applications could have been rejected had they followed procedural norms.
When Trump was charged the first time with dozens of federal counts, the stage was set for a future president to grant clemency to a former one. How should we think about this law school hypothetical come to life?
First, and most controversially, if Trump is reelected, he may choose to try to pardon himself in what would be an unprecedented decision. What does it mean for the rule of law if the president can unilaterally excuse himself from federal crimes?
Scholars are divided as to a self-pardon's legitimacy. On one hand, the idea of a president deciding his own legal case seems untoward and could possibly undermine the president's constitutional responsibilities to execute the laws. On the other hand, the Constitution grants the president a broad clemency power and does not explicitly exclude a self-pardon.
Logistically, it would be easy for President Trump to test a self-pardon: he would issue himself a pardon, and then we would be in uncharted waters. Eventually, the Supreme Court would have to weigh in to provide a definitive answer. This framework is the most fraught for both Trump and our country.
In another possible scenario, some future Republican president may opt to pardon Trump. Trump would then become the second former Republican president to be pardoned by a Republican successor, and the parallels to Watergate would be irresistible. Keep in mind, though, that the world has evolved in the 50 years since President Gerald Ford pardoned his predecessor, Richard Nixon. We don't have three television networks and daily newspapers that provide the public with similar facts. Instead, we have cable news, the internet, and social media that create filter bubbles about politics and everything else in American life. Political parties today are two opposing forces that often focus on branding and prioritize prodding their base to act over bipartisan compromise.
But the real test of how the public would remember a Republican president pardoning Trump is whether the pardon was given to help the country move on or was just a transparent appeal to Trump's supporters.
There is also the possibility that a Democratic president would decide to grant clemency to Trump. This scenario would be the most legitimate and, from a constitutional perspective, the least problematic; questions about favoritism or quid pro quo that would inevitably result from a same party pardon would never arise.
Of course, it's difficult to image why a Democratic president would want to pardon Trump. But if they did, the best justification would be to argue that the decision represents what's best for the country. The specific reasons may vary depending on the political context, but the "public welfare" justification alluded to by Hamilton would best weather the test of time.
No matter who pardons Trump, they will face several questions right away: What political consequences would attach to such a controversial decision? How would the two major political parties respond to a Trump pardon? Would the pardoning president wait to act until the end of their term? Would the American public be sufficiently upset to punish the pardoning president or his party at the polls? Would the pardon even free Trump from serious consequences, given his legal complications in New York and Georgia?
These are all hypothetical questions today, but someday, they may inform the public's response to a pardon of Donald Trump. Understanding how clemency works and why not all Trump pardon scenarios are equal could shape how the nation responds to what would be, in any form, a landmark moment in American history.
Jeffrey Crouch is an Assistant Professor at American University and the author of The Presidential Pardon Power.
The views expressed in this article are the writer's own.
