I predicted that one of the things Donald Trump would do as a lame-duck president is to begin to pardon a lot of people, ultimately perhaps himself.
This week finds him warming up his pardon pen, so we ask — can a president grant preemptive pardons?
Short answer: Yes.
“A preemptive pardon is a presidential pardon granted before any formal legal process has begun,” American University professor Jeffrey Crouch commented to National Public Radio this week.
Can he pardon family members?
Seemingly yes. President Clinton issued a pardon for his half-brother Roger Clinton after he served a year in prison for pleading guilty to cocaine distribution charges. If President Trump pardons his family, what would be truly unprecedented is that he would be pardoning family members who are not currently accused of federal crimes.
There is a longstanding legal doctrine about husband and wife called spousal privilege. In general, it permits a married criminal defendant to prevent his spouse from testifying against him.
Even if President Trump and the current first lady were to divorce, this does not terminate the privilege retroactively. Any confidential communications made before they divorced would remain protected from disclosure.
A presidential pardon applies only to federal crimes. So even if the president could preemptively pardon his family, he would not have the power to absolve them of the many potential state crimes that they may or may not have committed.
But when all is said and done there is really nothing that can be done to stop or even offer a viable challenge to President Trump’s forthcoming pardons. The presidential pardon authority is extremely broad and the Constitution intentionally provides no way for a presidential pardon to be reviewed.
While the Biden-appointed Justice Department could try to build a case around the illegality of corrupt pardons, the federal courts have recognized that pardon authority is at the discretion of the executive.
Aron Solomon is the senior digital strategist for NextLevel.com and an adjunct professor at the Desautels Faculty of Management at McGill University. He wrote this for InsideSources.com.
