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Trump’s pre-emptive pardons indicate that crimes have been committed, says Rutgers Law professor

Kristin Myers
·4 min read

President Trump has been reportedly mulling giving pardons to his oldest children as well as his lawyer Rudy Giuliani. The news comes as the Department of Justice unsealed documents that revealed a possible bribery for presidential pardons scheme. The president pardoned his National Security Advisor Michael Flynn after he pleaded guilty to the FBI.

The right to pardon is enshrined in the Constitution; the power is without restriction save one: in case of impeachment.

None of Trump’s children or his lawyer have yet been charged with a crime, and it’s unclear what federal crimes the pardons would cover, as there have not been allegations of federal misconduct.

“If he pardons people pre-emptively, he's, essentially, telling the public that these people have committed crimes,” Rutger Law professor Stacy Hawkins told Yahoo Finance Live. “We may not be aware of what they are, but the pardon is clear evidence that crimes have been committed.”

The president’s pardon powers only extend to federal crimes, not state ones, leaving members of Trump’s family open to prosecution from states’ attorneys general. Trump’s eldest daughter Ivanka was deposed in an investigation from the DC attorney general over alleged misuse of inaugural funds. There is also an outstanding investigation by the state of New York into Trump for tax fraud.

The pardon can work as a “get out of jail free card” for one or multiple specific crimes, Hawkins explained. “What we do know, since the very early days of the presidential pardon, is that they can only be exercised for actual crimes. So wrongdoing has to have occurred, even if it has not been charged, and someone has not been convicted of a crime, but the crime has to have been committed.”

According to Hawkins, while the president’s pardons and potential pardons are unusual, they fall within his purview.

President Donald Trump listens during a ceremony to present the Presidential Medal of Freedom to former football coach Lou Holtz, in the Oval Office of the White House, Thursday, Dec. 3, 2020, in Washington. (AP Photo/Evan Vucci)
President Donald Trump listens during a ceremony to present the Presidential Medal of Freedom to former football coach Lou Holtz, in the Oval Office of the White House, Thursday, Dec. 3, 2020, in Washington. (AP Photo/Evan Vucci)

Hawkins, a constitutional law expert, explained that the framers of the Constitution had concerns about the president using the pardon power inappropriately, but left the power largely to the discretion of the executive branch.

“Those concerns were resolved by suggesting that, if there was any impropriety in the exercise of the presidential pardon power that impeachment was really the remedy for that,” Hawkins said. “But the pardon power was broadly granted, and the only thing excluded is impeachment itself.”

With less than eight weeks left in his term, it’s unlikely Congress would move to impeach Trump again. Trump was last impeached by the House of Representatives a year ago over allegations that he called upon Ukraine to investigate the son of now President-elect Joe Biden.

The pardon power “is one of the fairly unfettered powers of the executive under the Constitution...so Congress does not have any ability to limit the pardon power, nor does the court really have much authority to review the exercise of the president's pardon power,” Hawkins said. “It's one of those political powers that really the court has said is vested in the discretion of the executive and is only accountable in his political capacity.

Hawkins added this means that “voters can elect him out, but there's really no other political or judicial accountability.” And she said

“Trump has challenged a lot of our constitutional norms. He has engaged in unprecedented behavior that we have not really had to contemplate in the past,” she said, arguing that there will unlikely be changes to pardon power any time soon.

“I don't think that many people are contemplating vast constitutional amendments in order to remedy what they believe to be the challenges to our constitutional order that he's provoked,” she said. “So I don't expect that this one will pose a constitutional amendment, especially because it's an extraordinarily difficult process to get passed.”

Kristin Myers is a reporter and anchor for Yahoo Finance. Follow her on Twitter.

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