President Donald Trump is considering preemptively pardoning as many as 20 aides and associates before leaving office, frustrating Republicans who believe offering legal reprieves to his friends and family members could backfire.
Trump’s strategy, like much of his presidency, is nontraditional. He is eschewing the typical protocol of processing cases through the Justice Department. And he may argue that such preemptive pardons for his friends and family members are necessary to spare them from paying millions in legal fees to fight what he describes as witch hunts. Those up for clemency include everyone from Trump’s personal attorney, Rudy Giuliani, to several members of his family — all people who haven’t been charged with a crime. Weighing on Trump’s mind is whether these pardons would look like an admission of guilt.
Republicans, as they often have when Trump appears about to bulldoze through another norm, are expressing some initial hesitation — but they’re not telling him to stop.
“That is in a category that I think you’d probably run into a lot of static,” said Sen. Mike Braun (R-Ind.). “That’s charting new territory, I’m guessing. I don’t think that’s ever been attempted before.”
The result is yet another looming showdown between Trump and the broader Republican Party.
And the potential squabble has taken on added significance as Trump prepares to leave the White House next month. The GOP is grappling with how closely it wants to remain aligned with Trump after his presidency. While the president has turned off voters with his controversial actions — including his past use of the pardon power to spare allies — he retains a loyal following and is mulling a 2024 presidential run. More imminently, Republicans need Trump’s base to turn out in the Jan. 5 Georgia Senate runoff elections, which will decide which party controls the Senate.
GOP senators said Trump would be stepping on political landmines if he grants clemency to his family and associates, even as they noted presidents have broad pardon authority. Sen. Josh Hawley (R-Mo.), a Trump ally and a former state attorney general, acknowledged that such a move by the president would be unprecedented.
“I’m not sure what form it would take. It’s kind of an interesting legal question,” he said. “I’m not aware of analog.”
Trump has not made any decisions about pardons as he and his team contemplate both the legal considerations and political consequences, according to three people familiar with the discussions, all of whom speak to the president. Some around Trump are worried the president could tarnish his legacy or harm a future campaign if he’s too expansive with his 11th-hour pardons.
Roughly 20 top aides and associates are on tap for a potential pardon, though the list is evolving, according to one of the people. The list includes Donald Trump Jr. and Eric Trump, who run the family’s namesake business, and Ivanka Trump and Jared Kushner, a husband-and-wife duo who are both senior aides at the White House. All four were involved in Trump’s reelection campaign.
Trump has even mused on Twitter that he has “the absolute right to PARDON” myself — a legally contested (but untested) claim.
Still, Trump is hesitant to pardon any of them, particularly Giuliani, because it may appear that members of his inner circle are criminals, said one of the three people, who spoke to Trump this week. The Giuliani pardon has been discussed more seriously, the person added.
A Republican who speaks to Trump and supports his potential 2024 bid predicted the pardons would not hurt the president. “It’s a big deal to Beltway types but not regular Americans,” the person said.
The pardons would be designed to prevent Trump’s allies from being ensnared in any more federal investigations.
Trump Jr. had been investigated for contacts that he had during the 2016 with Russians offering damaging information on his father’s 2016 rival, Hillary Clinton. Later, congressional investigators told the Justice Department that Trump Jr. may have lied to them during their examination of Russia’s 2016 election interference.
Kushner similarly received scrutiny for providing inaccurate information to federal authorities about his contacts with foreigners when he applied for his security clearance.
Neither was charged.
But the clemency would not extend to any state charges, congressional investigations or lawsuits — of which there are plenty.
The New York attorney general and the Manhattan district attorney, for example, have been investigating the Trump Organization for possible financial fraud. D.C. authorities also sued the Trump Organization and Trump’s inaugural committee, alleging the committee misused funds and funneled money back to Trump’s company. Ivanka Trump gave a deposition in that suit earlier this week.
Senate Minority Leader Chuck Schumer (D-N.Y.), like other Democrats, has described the possibility of these preemptive parsons as “a gross abuse of the presidential pardon authority.”
The White House did not respond to a request for comment. Neither did representatives for the Trump children and Giuliani.
Some Republicans argued that pardons for Trump or his family would be unnecessary, suggesting the potential moves would simply create problems and be seen as an admission of guilt.
“I don’t know what he would pardon himself for. He’s not been accused of any crime,” said Sen. Marco Rubio (R-Fla.), adding: “We’ll deal with those things if they happen.”
“I know why he pardoned [Michael] Flynn, because Flynn was railroaded,” said incoming Senate Judiciary Committee Chair Chuck Grassley (R-Iowa), referring to Trump’s former national security adviser who was pardoned last month after pleading guilty to lying to the FBI. “But I don’t know what the others have done wrong that they’d need to be pardoned.”
As for Trump himself, lawyers continue to debate whether a president can pardon himself. But they generally agree a president can pardon individuals preemptively, though it’s not done often. Even the Justice Department’s Office of the Pardon Attorney indicates it would be “highly unusual.”
Past presidents have done it, though — the most famous example being President Gerald Ford’s preemptive pardon of Richard Nixon following the Watergate scandal.
“There’s no doubt that this is not what clemency is intended for,” said Mark Osler, a former federal prosecutor and clemency expert who serves as a law professor at the University of St. Thomas in Minneapolis. “It’s bad for the institution of clemency and the good that it can do. But that’s a different question about whether or not it’s illegal.”
The Constitution gives the president the power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” That typically either comes in the form of a commutation — which reduces or eliminates a sentence, but does not wipe away a conviction — or a full pardon, which disposes of all legal consequences from a crime.
“It’s perfectly constitutional for presidents to do them and they are common at the end of terms,” said Scott Jennings, who worked for President George W. Bush and is close to the Trump White House. “Good judgment is essential and hasn’t always been exercised.”
In many cases, Trump has bypassed the lengthy, multi-level process for clemency that has been conducted at the Justice Department for more than a century. Instead, he has made decisions himself in consultation with a handful of aides.
“There is a standard DOJ process for pardoning someone, but sometimes Trump also just ignores that and does it himself,” said a Republican close to the White House.
Through October, Trump had granted 27 pardons and commuted 11 sentences, according to the U.S. Pardon Attorney’s office.
Many have been for headline-grabbing individuals: 19th Century suffragist Susan B. Anthony, former Illinois Gov. Rod Blagojevich, Bush adviser Scooter Libby and former Trump adviser Roger Stone, who lied to Congress.
“If you simply turn back on that regular process [and say], ‘I’m going to get my recommendations from Fox News and campaign donors who managed to make it into the Oval Office and anybody else who wants to bring me a case, no, I don’t think that’s right,” said Margaret Love, a former U.S. pardon attorney who now represents applicants for presidential pardon. “That’s ignoring the regular process and the ordinary people who don’t have that kind of access.”
Nancy Cook and Gabby Orr contributed to this report.
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