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Former President Donald Trump didn’t pardon himself while he had the chance. And that might have been a big mistake.
The decision leaves Trump wide open to potentially heavy criminal consequences, just as law enforcement officials from around the country are scrutinizing his behavior and his family business. Trump now faces encroaching danger from local prosecutors and possibly the federal government under President Joe Biden without any protection from criminal indictment afforded to him by the presidency.
Legal experts and political boffins had assumed for months that Trump would surely issue preemptive pardons to himself, his adult children, and his lawyer Rudy Giuliani—before any charges were even filed. Yet in the flurry of pardons and commutations that Trump issued after midnight on the last day of his presidency—to the likes of former campaign chairman Steve Bannon and rapper Lil Wayne—the names Trump and Giuliani didn’t appear. (Trump had no power to issue pardons for future behavior.)
Trump faces potential jeopardy over his role in whipping up the crowd that stormed the Capitol building, attempting to thwart the Russia investigation, allegedly directing hush-money payments to women who claim they slept with him before the 2016 election, and much more.
And the former president may have prioritized his public image and looming Senate impeachment trial over his legal jeopardy, legal experts told VICE News.
“I think that Trump was focused on impeachment, PR, rebuilding the brand, and 2024,” said Carl Tobias, a professor who specializes in the U.S. court system at the University of Richmond School of Law. “Plus he would have looked weak and guilty with a self-pardon.”
The move leaves Biden’s Department of Justice with some difficult decisions to make about how to handle the huge pile of evidence Trump left behind, including whether to charge a former U.S. president with crimes for the first time in American history.
Talking Trump down
Trump was reportedly warned that a decision to pardon himself could blow up in his face.
Trump’s legal advisors told him that preemptive pardons for himself and his kids would make them look guilty and could put them in a legally perilous position, CNN reported, citing unnamed sources. The aides told Trump that he shouldn’t pardon himself or his family members in advance unless he was prepared to list specific crimes in the paperwork.
Trump may have been more concerned about going down as the first president to be convicted in an impeachment trial than the first to face a criminal courtroom. Trump reportedly worried that pardoning himself would provoke Republicans in the Senate to convict him in his looming impeachment trial over the January 6 insurrection at the Capitol, at a moment when his support in the Senate is wobbling. GOP Senate Majority Leader Mitch McConnell rebuked Trump this week for provoking the mob with “lies.”
Dealing a pardon to himself—which would have been historically unprecedented—also might have outraged law enforcement, and encouraged them to try and prove it wouldn’t work. The self-pardon might have crumbled in court if federal prosecutors ever tried to challenge it with an indictment, since the Supreme Court has never ruled such a move was legit, according to legal experts.
“I think a self-pardon would be like a double dare to prosecutors who might otherwise have decided not to charge, because an indictment would be the only way to challenge the pardon in court,” said Rebecca Roiphe, a former prosecutor and expert on prosecutorial ethics at New York Law School. “Prosecutors would not take kindly to such a public declaration that the president is above the law.”
Trump’s failure to issue himself a pardon might make sense, but some observers are confused why he didn’t pardon his family or close associates.
Trump’s decision not to pardon Giuliani looks like retribution for Giuliani’s bungled efforts to secure Trump a second term in the courts, according to Michael Cohen, Trump’s estranged former private attorney. Trump’s legal team lost over 60 court decisions while pursuing phony claims of voter fraud.
“He didn’t pardon Rudy as a punishment for his massive legal failure in overturning the election,” Cohen told VICE News. “I don’t know why he didn’t pardon himself, his children and Jared [Kushner].”
Giuliani denied that he wanted or needed a pardon, even though he’s been under investigation by federal prosecutors from the Southern District of New York.
It’s possible, however, that Trump might have signed pardons secretly.
While the Presidential Record Act requires Trump to leave a record of his pardons, he might have just ignored that rule. That would mean even the Biden Administration might have no record of some pardons Trump released.
“If Trump were to violate his obligation to create a record, Trump could issue secret pardons and no one would know unless and until he chose to reveal them,” Roiphe said. “The mere fact that he violated a congressional record requirement wouldn't invalidate the pardons.”
Such pardons, if they stayed secret, could be held until charges were filed—and then brought out in an attempt to thwart the prosecutors. But Trump would have had to have witnesses and a clear-time stamp on the documents, according to Roiphe.
But Trump’s administration leaked like a sieve, and there’s no guarantee any witnesses they could have stayed hush-hush.