Could Mike Pence be Prosecuted for Pardoning Donald Trump?

Some people have put forth the idea that perhaps Donald Trump might resign as president in the days before Joe Biden is sworn in as our new president in order to give Mike Pence the opportunity to accede to the job so he can grant him a pardon. There is a historical precedent for this in Gerald Ford’s pardon of president Richard Nixon, but there are a number of things to consider that would appear to make that idea problematic.

Part of the problem is that such a pardon would almost certainly be vague, with no mention of any specific acts or wrongdoing. While the Nixon pardon was similarly non-specific Ford was able to get away with it because everyone just wanted it to be over so no one challenged the pardon in court. Whereas at this point everyone is again ready for it to be over it is almost certain that someone would try to have any pardon in this case overturned. Another roadblock is that by pardoning Trump Pence might be opening himself up for criminal prosecution.

A presidential pardon confers on the recipient immunity from any criminal penalties for the offenses it covers. Granting a pardon before there are even formal charges filed, much less a conviction, shuts down the justice process before it can even begin. There is no doubt that a sitting president would be able to grant a pardon like this after he becomes aware of the possibility of someone facing prosecution, so long as that knowledge was obtained after he was already president. But in the case of Pence pardoning Trump, we would have one person agreeing to resign specifically for the purpose of the other person to grant a pardon of criminal activity that they already knew had taken place. That would nicely fit the description of a conspiracy to obstruct justice, and if the actual pardon was upheld there could also be a charge of actual obstruction of justice.

One might ask if this is a crime why wasn’t Gerald Ford prosecuted for it, since he pardoned Nixon after he resigned? One reason is that he was president for more than two years after he pardoned Nixon, so nobody would have been interested in pursuing it. But also, we have the difference that Ford was nominated to be VP a full year before Nixon’s resignation, at a time when he had no reason to think he’d need to resign. But if Trump resigns this late in his term and then gets pardoned there will be no doubt that he and Pence agreed to the pardon beforehand, thereby establishing a conspiracy to subvert the criminal laws. And while Pence were president, he would not be able to be charged; but as soon as he left office, he would be liable for any crimes committed during that short term.

What is interesting is that the question of whether Donald Trump could be similarly charged would hang on whether the pardon Pence issued him held up under any legal challenge. If it were upheld the crime of conspiring to obstruct justice would probably be covered under its provisions and he would only be named in Pence’s charges as an uncharged coconspirator; but if the pardon were invalidated for any reason, Trump would then also be on the hook to be indicted as well. This would certainly bring a bizarre end to one of the most tumultuous presidencies in our history.

What if Trump Tries to Pardon Himself?

There has been a great deal of speculation regarding the fate of President Trump once he leaves office. One of the issues that has generated the greatest amount of attention considers whether he might try to pardon himself. A similar question is whether he might instead resign before the end of his term so that VP Mike Pence could step in for the final few days and issue Trump a pardon. An analysis of either of these possibilities should begin with the question of whether either one is even allowed under the Constitution.

Article Two, Section 2 of the Constitution states the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”. The only time a president has received a pardon from another president is when Gerald Ford pardoned Richard Nixon “for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974”. It is largely because of this pardon that anyone is even considering the possibility that Trump might receive a pardon. What sets this pardon apart from all others is that at the time it was issued Richard Nixon had not been formally charged with any crime, so it sought to preempt any proceeding which might bring forth an indictment. Lots of people believe that Nixon’s pardon proves that Trump could be pardoned by Pence in much the same way, but that is by no means a foregone conclusion. The main reason the Nixon pardon stood is because no one sought to challenge its validity, whereas it is almost certain any such pardon issued by Trump or Pence would be subject to a court dispute.

The problem with such a broad, preemptive pardon as Nixon’s, as well as any liable to be issued on Trump’s behalf, is in its vagueness and the fact that the actual commission of any crime has not been established. How can a pardon be granted when no evidence has been presented that it even happened? Let’s remember that when a person accepts a pardon, he is actually admitting he is guilty of the crimes for which he received it. A pardon for no specific crime would appear to then be a pardon of every imaginable crime against the United States, from crossing against the light in a national park to molesting children in the White House residence; acceptance of every crime in general would rob the recipient of the ability to defend himself against any crime specifically. I don’t think any rational person, let alone the so-called “originalist” majority of Justices on the Supreme Court, would imagine that the Founding Fathers had such a broad interpretation in mind when they included the pardon power in the government’s founding document. Frankly, it makes no sense to think a pardon could be issued for an offense of which a person hasn’t even been accused, especially when no specific charge has been levied. Add to these things the fact that a presidential pardon, whether by Pence for Trump or by Trump for himself, would only help him avoid punishment for federal level crimes, leaving him still vulnerable to prosecution for crimes at the state level, where he would probably face the heaviest penalties in the first place. For all these reasons I personally doubt there will be any last minute pardons before Donald Trump leaves office as president.