'Push the constitutional envelope': Law professor lays out 3 ways Trump could be pardoned if convicted

02 May 2023

During its almost 247 years as a country (the Declaration of Independence was signed on July 4, 1776), the United States has survived everything from a civil war, two world wars, riots and pandemics to terrorist attacks (including 9/11 and the deadly Oklahoma City bombing of 1995). But the legal problems surrounding former President Donald Trump are unprecedented in U.S. history.

This is the first time, in those almost 247 years, that a former U.S. president has been indicted on 34 criminal counts while running for president again. And the prosecution Trump is facing by Manhattan District Attorney Alvin Bragg, Jr. is only the tip of the iceberg. Trump is also facing two criminal investigations by the U.S. Department of Justice (DOJ) and special counsel Jack Smith and one by Fulton County, Georgia DA Fani Willis.

In an article published by Politico on May 2, University of Baltimore law professor Kimberly Wehle examines three possible ways in which Trump could be pardoned if convicted in any cases: "by a state executive, by the current president or by himself." And she believes that Trump is facing so much legal exposure that "it's only a matter of time before he gets convicted of something, somewhere."

While the DOJ/Smith probes are federal, Bragg's prosecution and Willis' investigation are state cases.

"Each state has its own process for pardons and commutations, which differ from pardons in that they reduce the punishments for crimes rather than wiping them out altogether," Wehle explains. "Some states lodge those powers with their governor and some with a range of executive officials…. The only pertinent pardon power related to (the) charges (in Manhattan) belongs to New York Gov. Kathy Hochul, a Democrat, who is unlikely to agree to pardon the former Republican president…. If District Attorney Fani Willis produces an indictment, which she recently announced could be forthcoming this summer, Trump would have to turn to a five-member Georgia State Board of Pardons and Paroles for a pardon."

Wehle adds that "in both New York and Georgia," a "politically motivated pardon… is not in the cards."

In the U.S., sitting presidents don't have the power to pardon state-level convictions — only federal convictions. Wehle notes that if Trump were convicted in any federal cases, President Joe Biden would have the option of either granting or not granting him a pardon.

"Although it's a highly speculative option, it's possible that Trump could try to pardon himself with a 'pocket pardon,'" the law professor observes. "That is, Trump may have issued himself a self-pardon while he was president and squirreled it away in a desk drawer or storage closet for use in rebuffing possible federal charges down the line. If Trump issued a self-pardon while still president, his actions will have again pushed the constitutional envelope beyond any boundary this country has seen before."

Read Kimberly Wehle's full report for Politico at this link.

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