Pardoning at the End of a President’s Term

With Joe Biden’s now having won the election, the question arises whether and how President Trump will exercise his pardon power as his term comes to an end.  Presidents traditionally issue many if not most of their pardons at that time, thus  —  very unfortunately in my view  —  avoiding political accountability for them.  One reason this is so bad is that political accountability is the only kind there is.  Pardons cannot be reviewed or changed by either of the other branches of government.

Reuters is out with a decently good summary of the pardon power, here.  It notes, inter alia:

The pardon power, which comes from the U.S. Constitution, is one of the broadest available to a president. The nation’s founders saw the pardon power as a way to show mercy and serve the public good.

While pardons are typically given to people who have been prosecuted, pardons can cover conduct that has not yet resulted in legal proceedings.

A pardon is not reviewable by other branches of government and the president does not have to give a reason for issuing one.

A pardon wipes out a criminal conviction. A different form of executive clemency, known as a commutation, leaves the conviction intact but wipes out the punishment.

But the pardon power is not absolute. Crucially, a pardon only applies to federal crimes. That means pardons would not, for example, protect Trump associates from the criminal investigation being conducted by Manhattan District Attorney Cyrus Vance, a state prosecutor.

One of the reasons the pardon power is now looked upon with a degree of skepticism is the flagrant abuse visited upon it by Bill  Clinton:

In 2001, former President Bill Clinton pardoned his own brother, Roger, who was convicted for cocaine possession in Arkansas.

Clinton pardoned about 450 people, including a Democratic Party donor, Marc Rich, who fled the country because of tax evasion charges.

Its possible abuse is far from the only reason to be cautious with the pardon power, however.  The main reason is to avoid wholesale reversal of outcomes reached by judicial system, a system typically much less vulnerable to either political tides or mere personal taste than the President may be, particularly a President on his way out the door.

The Reuters article also addresses the question whether a President can pardon himself.  In my view, that question is often posed simply to smear Mr. Trump by the legions who intensely dislike him.  He has not been shown to have committed a crime, and Mueller’s Russia investigation pretty much fell flat.  Still, on the merits, the answer is:  No one knows.  The Constitution is silent on the point.  But no President has attempted to pardon himself, and I’m unaware of any actual evidence that Mr. Trump plans to be the first.