A move by outgoing President Donald Trump to pardon his close associates and members of his family could leave him vulnerable to “thorough” investigations of his activities while he occupied the White House, according to a professor at the University of Missouri School of Law.
“Because a pardon effectively erases the Fifth Amendment privilege as to offenses covered by the pardon, it might make it easier for criminal and civil investigative authorities and Congress to compel testimony from the person pardoned,” writes Frank O. Bowman III in a paper for the NYU Journal of Legislation and Public Policy.
Noting that the president’s pardon power does not extend to state crimes or to any civil or administrative action brought by federal or state authorities, nor can it block congressional investigations, Bowman argued that “presidential pardons could inconvenience, but could not prevent, thorough investigations of the private and public actions of a former President or his associates.”
Trump has already issued several controversial pardons in the final months of his presidency, for example to his former national security adviser Michael Flynn, and there is speculation that he is considering granting pardons to three of his children and his son-in-law Jared Kushner, as well as his lawyer Rudy Giuliani—in anticipation they may face charges related to activities conducted at his behest.
Many presidents have used the pardon power granted to the executive in Article Two (Section 2, Clause 1) of the U.S. Constitution, which allows the chief executive the “power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”
“Pardons, once issued, are almost certainly unchallengeable and irrevocable,” Bowman wrote, noting that a pardon “neither kills, nor wounds, nor imprisons, nor impoverishes.”
A presidential pardon is effectively an “act of grace,” but the extent to which it confers complete impunity—particularly if a president attempts to pardon himself or herself—is unclear, Bowman said.
The literature surrounding presidential self-pardons is inconclusive, Bowman said.
“In theory, a president could resign, or under the Twenty-Fifth Amendment withdraw temporarily from the office, transform the Vice President into the President or Acting President, and secure a pardon from his former subordinate,” Bowman wrote.
But he added, “that seems improbable.”
Also, he observes, a president cannot pardon crimes that have not yet been committed.
While presidents could— theoretically — attempt to issue a blanket self-pardon, they would have to be prepared to suffer the consequences if such a pardon were tested in the Supreme Court, the paper said.
Trump is considered particularly vulnerable to state investigations concerning his financial activities, such as one currently being pursued by the Manhattan District Attorney, and his pardon power will not grant him impunity against any charges proceeding from that investigation, Bowman noted.
“Mr. Trump’s relations with the banking sector have long been a subject of concern,” Bowman wrote. “Some of that story is primarily about banks being snookered by a real estate developer and self-promoter with a penchant for not paying his debts.”
Trump retains his financial stake in many of the businesses operated by The Trump Organization, although he formally relinquished control over them to his sons Donald Jr. and Eric Trump, according to Investopedia.
Not only would the corporations and business entities be investigated; but employees, confederates, counter-parties in business transactions, and family members are likely to be targets of a probe as well, according to Bowman.
A survey conducted by The Hill in partnership with Harris-X, a market research analytics tracker, found that 55 percent of registered voters in the survey sample did not support Trump pardoning members of his family before departing the White House.
“Support for Trump preemptively pardoning his family members is slightly lower than his overall approval, suggesting the move will be controversial and opinions on it will largely break around partisan lines,” Dritan Nesho, chief pollster at HarrisX, explained to HillTV.
Overall, Bowman writes that neither a self-pardon nor a pardon spree for others close to him would block civil investigations by federal executive branch agencies, nor would it prevent investigations conducted by state governments.
As recently as last week, the New York Times reported that New York state prosecutors have made “significant” strides in “escalating an investigation into the president that he is powerless to stop.”
It’s still unclear whether Manhattan District Attorney Cyrus Vance Jr. will ultimately bring charges against Trump, but lately, the office’s efforts have been “stepping up,” according to the New York Times.
Bowman’s recommendations include:
- The public and private behavior of the President and his supports must be subject to “full, fair, judicious, professional investigation”;
- Consequences like criminal punishment or civil monetary must be given for “repeated or overt violations of the law.”
Nevertheless, Bowman also acknowledged that mounting criminal or civil proceedings against a former president—particularly Trump—risks further polarizing an already-divided nation.
He proposed what he called “a middle path” that would involve institutional reform and the utilization of internal auditing and ethics officers to ascertain “and publicly report what has happened in their bailiwicks over the last four years.”
Frank O. Bowman III is the Floyd R. Gibson Missouri Endowed Professor of Law at the University of Missouri School of Law. His expertise lies in impeachment, criminal law and procedures. He has served as a trial attorney, deputy district attorney, and Special Counsel to the U.S. Sentencing Commission in Washington D.C.
His complete paper can be accessed here.
Andrea Cipriano is a TCR staff writer.