President Trump is expected to spend his final full day in office issuing some 100 pardons and commutations. And, for legal scholars and political pundits, the names will offer an insight into how Trump sees his role in the Republican Party after leaving office.
While rapper Lil Wayne and disgraced Democratic politician Sheldon Silver are reportedly among the names likely to receive clemency, legal scholars will be watching to see whether Trump family members, such as daughter Ivanka or sons Don Jr. and Eric, will be given preemptive pardons.
John Yoo, who worked in George W. Bush’s Department of Justice and is now professor of law at the University of California, Berkeley, said: “Whether the president pardons family members will give you a real sign of what Trump’s intentions are post-presidency, whether he wants to extend his influence so that his family members can continue to run for office or stay involved in Republican politics.”
The president’s powers are almost unlimited when it comes to federal crimes. Article II of the Constitution states that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
White House officials spent the weekend finalizing a list of pardons.
A source familiar with the discussions said they had focused on whether the president’s children should be given preemptive pardons, shielding them from acts already committed.
In recent months, Trump has also asked for advice and counseled opinion on whether he can pardon himself.
Several members of his family face potential legal jeopardy.
Jared Kushner, his son-in-law, omitted several contacts with foreigners when he applied for White House security clearance, including ones with Russians offering damaging information on Hillary Clinton during the 2016 election campaign. Eric Trump was questioned last year as part of a fraud investigation into the Trump family’s real estate company.
At least three have been linked with political runs. Eric’s wife Lara is mulling a Senate run in North Carolina; Ivanka is talked about as a prospect in Florida; and Don Jr. reportedly considered running in Wyoming last year. Then there is the president’s own hints that he might run again in 2024.
Yoo said accepting a pardon risked creating a public perception of guilt, complicating any prospect of future public service.
“That makes it hard for any of them to run for office again,” he said. “You are putting a big target on you if you want to try to run for office or even have an important role in the Republican Party.”
The same might go for Trump himself. Yoo is among the legal scholars who believe the president’s powers face limited exceptions — state crimes, civil lawsuits, and impeachment.
“He could pardon his family members if he wants,” he said. “He can even pardon himself — the constitutional text doesn’t prohibit it.”
Others take a different view. Brian Kalt, law professor at Michigan State University, said he did not believe Trump could pardon himself but said he would have to thread the needle in pardoning associates: the more legally valid the pardon, the more guilty the perception.
“The more specific you get, the more guilty it will make those people appear of those things. If he says something more general, like these people didn’t do anything wrong, they’ll gin up charges against them, I want to make sure they’re protected against anything possible — he can try to give a more general pardon,” he said.
“On the other hand, it will also not be as effective because it might be harder to argue it covers a specific prosecution against them.”
Trump could use sleight of hand to reduce the public outcry, he added, by simply not announcing family pardons at all.
“There’s no formal requirement he announce them,” said Kalt. “It makes it harder to authenticate, but to the extent they are worried about them looking guilty, they could say, ‘Here’s a pardon, keep it in your desk, and you can take it out if you are prosecuted.’”
