Can Trump be pardoned in the New York case?: Donald Trump loved to use the pardon power when he was president. But some of the cases facing him are not federal crimes, and therefore cannot be pardoned by a future president.
The State of Play
When he was president, Donald Trump enjoyed using the pardon power, issuing pardons to everyone from Russiagate figures like Paul Manafort to convicted corrupt politicians of both parties and even Charles Kushner, the father of his son-in-law Jared Kushner.
Even after leaving office, Trump has implied that he would issue pardons to participants in the January 6 insurrection.
This has naturally raised the question of whether Trump’s current legal woes could be solved by a future presidential pardon, either of a restored Trump pardoning himself or another future Republican president doing it.
In the current cases against Trump, however, both the Manhattan/Stormy Daniels case and the Georgia election interference case are at the state level, and therefore outside the scope of the presidential pardon power.
Donald Trump and The Legal Drama Show
Ari Melber, the MSNBC host, and legal analyst, appeared on “Morning Joe” and discussed where things stand with the Manhattan case. Trump had predicted last week that he would be indicted imminently, but the grand jury did not meet on Wednesday or Thursday, which will almost certainly push any announcement of an indictment into next week.
Melber argued that the Manhattan case is “in the ninth inning,” and that it’s not likely that there is much to be read into the delay of the announcement. He also said that when prosecutors in New York have to put out a memo guaranteeing the safety of his staff, as District Attorney Alvin Bragg did earlier this week, it’s usually in response to a case involving someone like the Mexican drug lord El Chapo, or La Cosa Nostra.
But he added that Trump cannot be pardoned in the New York case.
“There is no help for him, there is no back door, there is no federal pardon,” Melber said. “Even if a different Republican won the White House, which could happen, this is a local jurisdiction, there’s no backup plan.”
Trump could be pardoned by the governor of New York, but Gov. Kathy Hochul is a Democrat and unlikely to do so. And Georgia is one of the few states in which the governor does not have the power to directly issue pardons. Even if he did, Republican Gov. Brian Kemp is both a Trump enemy and directly involved in the case.
That leaves the cases involving the special counsel, who is looking into both Trump’s actions post-election, and his classified document practices. Any indictment or conviction in those criminal cases could theoretically be pardoned by a president.
Whether the president has the power to pardon himself is a constitutional question that has remained unresolved, even after it was brought up repeatedly during Trump’s presidency. But in the increasingly likely scenario that Trump is running for president with an indictment hanging over his head, whether or not he might try to self-pardon will likely become a major issue in the campaign.
What History Says
And it’s even more likely that every one of his Republican opponents will be asked if they themselves would pardon Trump, should they reach the White House. President Gerald Ford pardoned his predecessor, Richard Nixon, shortly after taking power, which historians widely see as a blunder that helped cause Ford’s defeat to Jimmy Carter in 1976. So any candidate who pledged to pardon Trump — or actually did it — would likely risk a similar fate.
And of course, some pundits who don’t live in the real world, like the New York Times’s Bret Stephens, have suggested that Biden should pardon Trump himself, at least for the federal documents case. That is extremely unlikely, as Biden said back in 2020 that he would never pardon Trump.
Stephen L. Carter of Bloomberg News, last fall, suggested that Biden pardon Trump in exchange for a promise not to run for public office again, but that’s just as likely, and there are questions about whether such a deal would even be legal.
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Expertise and Experience: Stephen Silver is a Senior Editor for 19FortyFive. He is an award-winning journalist, essayist and film critic, who is also a contributor to the Philadelphia Inquirer, the Jewish Telegraphic Agency, Broad Street Review and Splice Today. The co-founder of the Philadelphia Film Critics Circle, Stephen lives in suburban Philadelphia with his wife and two sons. Follow him on Twitter at @StephenSilver.
