From Roger Stone to Chelsea Manning to Thanksgiving turkeys, here's all you need to know about presidential pardons and executive clemency. USA TODAY

There can be no higher priority for the Biden administration than repairing and strengthening our democratic institutions.


President Trump's pardon of General Flynn evoked fresh howls of outrage as the president continues to use the pardon power as a get-out-of-jail free card for his friends. Trump's critics would be well-advised to keep a few choice epithets in reserve because they haven't seen anything yet. It is pretty much a foregone conclusion that Donald Trump’s last official act will be to issue himself a pardon. He’ll probably throw in his companies and his family just for good measure.

To be honest, Trump would be crazy not to. A presidential pardon won’t protect him from state charges but he is also looking at any number of federal investigations. He’s already been identified as an unindicted co-conspirator in one case regarding conduct that occurred before he became president. 

There could be others waiting for him, including obstruction of justice charges arising out of his conduct during the Mueller investigation, and charges of federal bank and wire fraud that parallel charges that are, apparently, currently being investigated by the Manhattan District Attorney. And these are just the possible charges we know about. If you were facing the potential of 30 years or more in federal prison, you’d issue yourself a pardon, too.

The lack of clarity surrounding self-pardon

Though some people insist that self-pardons are impossible, that’s more of a fervent hope than a legal certainty. While, not surprisingly, the issue has never really come up, the language of the Constitution seems to allow for it, probably because none of the founders ever imagined that any president might try such a thing. Certainly, philosophical concerns about being a judge in your own cause aren’t going to deter President Trump from giving it a try and he’s already mused about the possibility.

It isn’t even clear just how far a pardon can theoretically extend. The Constitution gives the president the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Certainly, that covers “offenses against the United States” committed by companies like the Trump Organization as well as offenses by people. But what, exactly, is an “offense against the United States?” We know that includes criminal offenses, but what about civil ones? What about violations of the tax code that could be charged as criminal offenses but are often settled civilly? Can Trump wave his pardon wand and make pending tax penalties disappear? Again, no president has ever tried to do such a thing so nobody knows. But I have a feeling we are about to find out.

The actual scope of the “self-pardon power” under current law is almost beside the point. The very fact that we are having this discussion confirms that there is a real problem. Everyone — except President Trump — agrees that presidents should not be able to pardon themselves as that places them above the law. But making that clear is going to require an amendment to the Constitution.

That’s why, at the Guardrails of Democracy project, an informal think tank devoted to developing proposals to shore up the democratic institutions damaged during the Trump presidency, we’re proposing just such an amendment.

Treasonous Trump:  have been instances, for example, when President Trump encouraged public officials to engage in illegal activity and promised them a pardon if they were ever prosecuted. That kind of behavior is even worse than the president breaking the law on his own.

The good reason for a 28th Amendment

Our version of the 28th Amendment reads, “No pardon or reprieve may be issued to any person for any offense for which the president could have been indicted, charged or held liable.”

This does two things. First, it takes the self-pardon off the table. Second, it makes it impossible for a president to issue pardons for crimes committed at his or her direction. It also makes it impossible for a president to avoid a self-pardon by exploiting the 25th Amendment to “resign” from office so that the vice-president can issue the pardon instead. Any agreement to exchange a pardon for an official act would be a violation of the federal bribery statute (18 USC 201) that would earn both the outgoing president and the vice president up to 15 years in prison even if the pardon were effective with respect to other crimes.

What we have not included is just as important. For one thing, we have not included a prohibition on a president issuing a pardon to friends and family members. This kind of pardon might sometimes be unseemly, but it doesn’t damage our system of checks and balances. Bill Clinton famously pardoned his brother for a drug possession and distribution conviction from the 1980s. While it certainly raised questions of favoritism, it didn’t threaten the rule of law in the way a president pardoning co-conspirators would.

Self-pardon:, is a member of USA TODAY's Board of Contributors.

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