WASHINGTON ― There’s a normal process for your average federal convict seeking a presidential pardon. There are petitions to prepare, letters to solicit, character affidavits to notarize, background checks to be conducted and federal prosecutors to be consulted. The whole process, controlled by the Justice Department’s Office of the Pardon Attorney, can take years, and there’s a very slim chance the president will ultimately grant a pardon.
However, if your dad is the president and you’re hoping to head off a potential indictment, you could just ask him to send a tweet.
President Donald Trump has, via Twitter, floated the possibility that he’ll use pardons as a means of shutting down indictments that may grow out of special counsel Robert Mueller’s investigation into the Trump campaign and Russian interference with the 2016 election. If Trump is learning more about the process, as media reports indicate, he may be surprised by how easy it would be for him to pardon his family members or former campaign aides.
Trump pardoning his own family members before they’ve even been indicted would be virtually unprecedented in the modern era. Former officials in the Office of the Pardon Attorney who spoke with HuffPost this week pointed to President Gerald Ford’s pardon of former President Richard Nixon after the Watergate scandal as the most relevant pre-indictment presidential pardon in recent U.S. history.
“Nixon is the most high-profile one, where no charges had even been brought, and I think that would be the most logical analogue,” said Margaret Love, who served as U.S. pardon attorney from 1990 to 1997.
But constitutionally, experts say, it’s all aboveboard. The consequences of those pardons would be political, not legal. Normally it would be “political suicide to pardon a family member,” in the words of Ohio State University law professor Peter Shane. But the normal rules of politics don’t seem to apply to President Trump.
“You just have to stand up against the political storm that would result,” Love said.
Other presidents have pardoned their family members and aides. President Bill Clinton pardoned his half-brother Roger for selling cocaine to an undercover officer, while President George W. Bush commuted the sentence of former White House aide I. Lewis “Scooter” Libby, sparing him a stint in federal prison. But neither Clinton’s pardon nor Bush’s clemency grant came before an indictment. Roger Clinton had already served a year in prison in the 1980s, and Libby’s commutation came after he was convicted and sentenced to 30 months in prison.
While there have been some pre-indictment pardons, those have typically affected entire groups of people, like when President Ronald Reagan granted amnesty for undocumented immigrants or when President Jimmy Carter pardoned hundreds of thousands of draft dodgers.
The pardon clause of the Constitution gives the president very wide authority. While the president can seek advice on pardons from any source he wants, the Office of the Pardon Attorney has handled most such cases since 1893.
The Office of the Pardon Attorney plays a crucial role in typical cases. One of the major benefits for presidents is that OPA vets all of the pardon applications for the White House, reducing the risk that a pardon could backfire.
“In the normal case, the White House won’t touch a case unless it’s gone through that administrative process at DOJ,” says Samuel Morison, a former lawyer in the Office of the Pardon Attorney. “It protects them from being embarrassed if it goes through DOJ, and it also gives them some political cover. If there’s criticism, they can say, well, DOJ told us to do it.”
Love said that the process at DOJ has served presidents well dating back to the 19th century.
“It’s always thought that it’s protective of the president,” she said. “The only time the president has gotten into trouble is when he avoids the process.”
If Trump does decide to preemptively pardon his son Donald Trump Jr., or his son-in-law, Jared Kushner, it’s highly unlikely their cases would be vetted by the Office of the Pardon Attorney. The cases would more likely be handled entirely by the White House Counsel.
“If anybody like that who is closely related to Trump wants a pardon, I doubt very much they’re going to bother filing a pardon application with the Office of the Pardon Attorney,” Morison said. “I don’t represent any of those people in a pardon matter, but if I did, I would tell them, ‘Why would you do that? Just go straight to the White House.’”
OPA doesn’t even accept applications from individuals who haven’t been convicted of a crime, Morison said.
There’d be very little required of Trump if he decided to grant any pardons. The White House could issue a fairly short statement, and the form wouldn’t really matter, Love said. Trump could do it in a tweet if he wanted, as USA Today wrote in January. (The biggest restriction might be Twitter’s character limit: The key portion of Ford’s letter pardoning Nixon ran to 442 characters. If Trump were to write something similar, he’d need to split it into a few tweets.)
“The president can do this pretty much in any form he wants, as long as it’s a public announcement,” Love said. The pardon doesn’t even need to be a written document, she added: “Stick your head out the window, yell it out in the street.” It just needs to be a matter of record that the pardon was issued.
Of course, the really remarkable thing is not that the words “Twitter” and “presidential pardon” are being mentioned in the same sentence. It’s the fact that Trump would consider issuing a preemptive pardon for a member of his family at all.
“We truly are in uncharted waters here,” Love said.