Trump may have issued pardons for Jan. 6 experts break it down – Washington Examiner

Although the Jan. 6 committee has not yet handed down a recommendation on whether the Department of Justice should file criminal charges against former President Donald Trump in relation to the Capitol riots, it is possible that he and those who were within his inner circle at the time could be indicted.

The only way out would be a get-out-of-jail-free card, otherwise known as a presidential pardon.

The question remains whether Trump issued secret presidential pardons to people within his administration for crimes related to Jan. 6 before he left office.

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The Washington Examiner spoke with several experts in constitutional law about whether or not Trump could have issued secret pardons during his term and whether they would be considered viable in a court of law.

A number of people with increasing closeness to Trump himself are becoming the subject of various investigations by Congress and others, said Frank O. Bowman, a law professor at the University of Missouri.

Its possible some specific set of people got such pardons that theyve been sort of holding in private.

At one of the recent Jan. 6 hearings, it was affirmed that, at least at one point, Trump was keeping a list of people he planned to pardon for acts related to his campaign to overturn the 2020 presidential election results.

The committee revealed that in an email to Rudy Giuliani, John Eastman, a lawyer who played a significant role in Trumps efforts to overturn the election results, said: Ive decided that I should be on the pardon list, if that is still in the works.

Additionally, Cassidy Hutchinson, an aide to former chief of staff Mark Meadows, testified to the committee in the most recent hearing that Giuliani and Meadows both requested pardons from the former president.

When asked by Vice Chairwoman Liz Cheney (R-WY) whether Giuliani suggested he was interested in receiving a presidential pardon related to Jan. 6, Hutchinson said, He did.

When asked the same question about Meadows, Hutchinson said, Mr. Meadows did seek that pardon.

Hutchinson also stated that several other members of Congress inquired about receiving pardons from the president in relation to Jan. 6.

According to the Supreme Court case Burdick v. United States, in order to receive a pardon, there must be an admission of guilt or conviction in a federal court of law on the side of the transgressor. The opinion in Burdick v. United States also says that a person cannot be issued a presidential pardon prior to committing an illegal act. However, they can be issued a pardon prior to being charged or sentenced, as long as the act has already been committed.

CASSIDY HUTCHINSON DID NOT DO HER JOB

Therefore, Trump was able to issue pardons to anyone within his administration before he left office, as long as he knew them to have committed an illegal act prior to his issuing of the pardon. And he didnt have to tell anyone other than the recipients about the pardons, either.

According to the experts who spoke with the Washington Examiner, there is no legal requirement that the president discloses it to the public when he issues a pardon. The practice of publicly announcing pardons is simply a matter of precedent. As long as it can be proven that the pardon was delivered to and accepted by the recipient, it doesnt matter how that is done.

Samuel Morison, the appellate defense attorney in the U.S. Department of Defense Office of the Chief Defense Counsel, said: I think he could write a pardon on the back of a napkin. You know, it doesnt have to be on a fancy piece of paper with the SEAL of the Justice Department.

He added: I admit that there would be potentially at least an evidentiary problem. How do you prove that this is the real thing? But I dont think theres any reason why it couldnt be done and not publicized.

It is also important to note that pardons can only be issued while the president is still serving his term. Bowman was skeptical that Trump would have had the time or appropriate legal counsel to issue accurately written pardons after Jan. 6 because his last day in office was Jan. 20. However, he said there was a better chance that Trump could have issued pardons to those closest to him in the months after he lost the election.

Might there be, again, some other pardons or pardons lurking around for his kids? That seems more probable because there was a lot of time to think about that, he said.

Clarifying the reach of the presidents pardon power, former U.S. Pardon Attorney Margaret Love said: If the president before he left office signed a pardon warrant addressed to a specific individual but not specifying the crime, and gave it to the individual to use just in case you ever get in trouble that would not be sufficient for two reasons. First of all, the president cant pardon conduct that hasnt taken place yet. Second, to be valid, a pardon must state with particularity the crime being pardoned, so there is no confusion about what the president intended.

However, presidents can issue blanket pardons to grant clemency for any and all actions that fall under a certain type of crime, which they have done several times in the past. After President Richard Nixon resigned, President Gerald Ford granted him a blanket pardon for any and all crimes he may have committed. After the Civil War, President Andrew Johnson issued a blanket pardon to anyone who had been involved in aiding or abetting the rebellion. When a pardon is issued to a large group of people, it is called amnesty.

After Jan. 6, some called for Trump to grant amnesty to all of the people who participated in the riots. Although Hutchinson revealed in the latest Jan. 6 committee hearing that Trump did consider granting pardons to the rioters, he ultimately did not. Hundreds have been charged and sentenced.

However, the former president recently said that he would consider offering pardons to those who participated in the Capitol riots if he is reelected.

At the recent Faith and Freedom Conference in Nashville, Tennessee, Trump said: Most people should not be treated the way theyre being treated. If I become president someday, if I decide to do it, I will be looking at them very, very seriously for pardons.

Despite the fact that Trumps offer to hand out pardons has opened him up to allegations of witness tampering, the former U.S. pardon attorney said that it doesnt matter in terms of the validity of the pardon.

Love said, Even if a pardon is corruptly given, it is still valid. So, for example, if the president took money or something else of value in exchange for a pardon, he might be subject to prosecution for the crime of bribery, but the validity of the pardon would not be subject to challenge.

Thus far, there have only been charges brought against private citizens who participated in the riots. However, the DOJ could decide to bring charges against individuals who were directly involved in Trumps efforts to overturn the 2020 election results. In that case, if one of those individuals has a pardon from Trump, that pardon would be considered valid, even if it was granted in exchange for committing acts both parties knew to be illegal.

In an excerpt from her upcoming book, Kellyanne Conway, a top aide in the Trump administration, said that Trump also offered her a blanket pardon after he lost the 2020 presidential election. When she inquired as to why she would need one, the former president told her, Because they go after everyone, honey. It doesnt matter.

In response to a question about Conways claim, Bowman said, Could he have offered them to people who didnt turn them down or simply delivered them in secret? Possible. And would those be valid? Possible.

So the short answer to whether Trump could have issued secret pardons to his inner circle and family members: yes. The only way the public will ever know for sure if he did, is if someone who received one is charged and attempts to invoke the pardon in their defense.

Love said that as long as the pardon is written to cover all of the appropriate crimes the recipient could be charged for, theres no reason it couldnt hold up in court. However, an issue could arise if the recipient is charged for a crime not listed on their pardon.

A more interesting question would arise if the president believed he was pardoning certain conduct, but the person was later charged with something closely related to the pardoned conduct but arguably not the same conduct, she said.

There is only a one-sentence clause in the Constitution regarding pardons, meaning that the presidents power is broad and not subject to very many restrictions.

Experts who spoke to the Washington Examiner shared the sentiment that the only real check on the pardon power is the people.

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The remedy for that is the political process. If you think President Trump improperly used the pardon power for his own personal gain or for partisan gain, the answer is vote him out of office, which is what happened, said Morison.

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Trump may have issued pardons for Jan. 6 experts break it down - Washington Examiner