President Gerald Ford walking to his office at the White House, Washington, D.C., Jan. 1, 1975, months after pardoning his predecessor Richard Nixon. (Image: Marion S. Trikosko/Library of Congress)
As President Donald Trump’s term in office comes to an end, the prospect of who he might pardon on his way out has created a stir. Reports that he has considered clemency for his adult children, and Trump’s previous assertions that he has the right to pardon himself, have raised questions about how the pardon process works and why it exists in the first place.
Why is the president granted this pardon power? How did it come about historically?
The president has the power to pardon at any time during his term. Because pardons can be politically embarrassing or costly, presidents often give them at the end of their terms. The pardon was historically a royal prerogative, but it was carried over into American practice to allow for mercy, the correction of miscarriages of justice, or to help society move forward without the divisive spectacle of prosecution and punishment in politically charged cases. For instance, George Washington pardoned participants in the Whisky Rebellion, in part because they enjoyed considerable popular support.
How do pardons work?
The president is the head of the executive branch. The executive branch is in charge of prosecution. A pardon effectively allows the president to say, on behalf of the United States, ‘We forgive you.’ It means that the person can’t be prosecuted, or if they’ve already been prosecuted and convicted that the conviction will be set aside.
Some reports say Trump has discussed pardons for his three children and Rudy Giuliani, even though they have not been accused of any crimes. Has a president ever pre-pardoned someone in the past? What sort of message would that action send?
Gerald Ford pre-pardoned Richard Nixon. Generally, it sends the message that the president wants the country to move on from the question of whether someone will be held criminally liable. I think a preemptive pardon of the children and/or Giuliani would be interpreted differently by people depending on whether they support Trump and feel he’s being persecuted or whether they think he’s a danger to democracy and likely a criminal.
Is there anything preventing Trump from pardoning himself? What would the ramifications be if he did so?
People disagree about whether the president can pardon himself. So, Trump might worry that it wouldn’t hold up in court. It would be simpler for him to resign and have Pence pardon him—the Nixon route—but he might find that embarrassing, although it would allow him to skip Biden’s inauguration.
Do other democracies around the globe offer this pardoning power to their leaders?
Some form of amnesty is generally available. Sometimes it comes from the legislature and not the executive. It has been criticized as monarchical and undermining the rule of law.
What’s important for the general public to know or keep in mind about pardons as the end of Trump’s term approaches?
It’s important to remember that the pardon power extends only to offenses against the United States, which is to say that it cannot be used to stop prosecutions under state law.
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