(TheRedWire.com) – Former President Donald Trump has faced considerable opposition since he came down the elevator at Trump Tower in 2015 to announce his run for the White House. Still, the legal challenges he faces today appear to be growing despite his announcement in the wake of the 2022 midterm elections that he would seek the Oval Office for the third time.
The former president is facing several potential federal criminal charges. First, the Department of Justice (DOJ) is reviewing whether Trump took government documents in violation of the Presidential Records Act and the Espionage Act when he left office in January 2021. The second threat occurred on Tuesday, December 20, when the House January 6 Select Committee referred four criminal charges to the Justice Department. Whether or not the DOJ pursues the matters, some are asking whether Trump could evoke a “Pocket Pardon.”
Could Trump Invoke a “Pocket Pardon?”
The US Constitution grants a president almost unlimited power to exercise federal pardon powers. Article II, Section 2, Clause 1 states, “…he shall have the Power to grant… Pardons for Offences against the United States, except in Cases of Impeachment.” The US Supreme Court has stated that the Constitutional provision is extremely broad and has virtually no oversight. Now, the question is, could Trump have pardoned himself from crimes committed before or after leaving office and before federal agencies even filed charges?
Some believe that Trump might have secretly pardoned himself before leaving the White House to use it as a sort of get-out-of-jail-free card if he’s indicted or arrested. While in office, he previously flirted with the possibility of a self-pardon. Still, no one knows whether it’s permissible. No president has ever used the power in that fashion in US history.
Some legal experts argue that there isn’t a limit on a self-pardon as the Constitutional text is broad, and there isn’t a textual limitation to prevent such an act. The legal recourse is impeachment. Still, after former presidents leave office, an impeachment means little in the practical sense.
A Previous President Sought a Preemptive Pardon
In 1974, President Richard Nixon resigned in disgrace over Watergate. The president contemplated pardoning himself but ultimately chose not to do so. Instead, President Gerald Ford immediately pardoned Nixon for crimes he might have committed while in office. Ford acknowledged there wasn’t a precedent for the action.
So, pocket pardons remain an untested option that few presidents have contemplated or discussed in a limited number of situations.
Ultimately, the legal question about the validity of a pocket pardon could come down to when an alleged crime occurred. If a former president committed an unlawful act while in office, a pardon issued while in office might help. A pardon would likely fail if the crime happened after one left.
Some experts say Trump had options. He could have temporarily claimed he could not do his duties, and the Vice President, acting as president, could pardon him. That’s unlikely to have occurred. If he does use a pocket pardon, it would stretch the boundaries of the US Constitution. Others say it would place a president above the law.
Regardless, the two cases confronting the former president could make him a test case if he invokes a preemptive pardon.
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