VERIFYING the possible pardon scenarios in Trump’s 3 indictments

Many VERIFY readers have sent us questions about what comes next for former President Donald Trump as he faces three separate criminal indictments. 

After Trump’s most recent federal indictment, one of the top questions we received was whether the former president could be pardoned if he is convicted, either by himself or someone else. A pardon can reduce or eliminate the punishment for certain crimes.

VERIFY is breaking down the possible pardon scenarios in Trump’s three indictments – two of which are federal and one that has been brought by the state of New York. 

THE SOURCES

WHAT WE FOUND

Two of Trump’s indictments are federal. In the most recent federal indictment, Trump was charged with four federal counts related to his efforts to overturn the 2020 election results. He is also facing 40 federal felony charges related to the mishandling of classified documents at his Mar-a-Lago estate in Florida. 

The state of New York also brought a case against Trump. In that case, Trump is charged with 34 state felony counts of falsifying business records in the first degree.

Here is a breakdown of the potential pardon scenarios for Trump’s federal and state cases if he is convicted. 

Federal cases

The U.S. Constitution gives the president broad power to issue pardons for federal convictions. 

The only explicit restriction outlined in the Constitution is that a president cannot pardon someone in cases of impeachment.

“You can’t be impeached and then be pardoned for that because that would subvert the whole purpose,” Doron Kalir, clinical professor of law at Cleveland-Marshall College of Law, said. 

If Trump is convicted while President Joe Biden is still in office, Biden could grant him a pardon in the federal cases.

Could Trump pardon himself in the federal cases if he is re-elected in 2024?

The Constitution does not specifically address whether the president can pardon themselves, nor has the Supreme Court ruled on the issue.

Shortly before former President Richard Nixon resigned in 1974, the Department of Justice asserted in a memo that a self-pardon would conflict with a longstanding legal principle that “no person may be a judge in his or her own case.”

Norman Eisen, senior fellow in governance at the Brookings Institution, said in 2018 that the reasoning behind the DOJ opinion is “compelling,” but the opinion “is not binding.” The opinion was also never tested in court because Nixon did not try to pardon himself. 

This means the president’s ability to pardon themselves is an untested legal gray area.

New York state case 

The U.S. Constitution makes it clear that the president cannot pardon people in state cases, Kalir told VERIFY. 

Depending on the state, that power typically rests with the governor, a state board or a combination of the two. 

Clemency in New York commonly takes the form of a commutation or a pardon, the state government says. A commutation is generally a reduction in the length of a person’s sentence, while a pardon reduces or eliminates the consequences of a criminal conviction. 

According to the state government, anyone who has been convicted of a crime in New York can apply for a pardon. A pardon in New York is typically only considered for people who have “completed all court-imposed requirements connected to their conviction and sentence, including community supervision, probation, and/or payment of fines and other costs,” the state says. 

But Kalir said a pardon in Trump’s New York case is unlikely if he is convicted in the state. 

“At the end of the day, it might be the New York case…that would prove to be the hardest to overcome because the governor of New York is currently a Democrat, and I don’t think it’s likely to change any time soon,” he said.