Convicted Felon/Adjudicated Sexual Abuser/President Trump has said he plans to give out mass pre-emptive pardons in the last half of his second term to anyone who “came near” the Oval Office while he was in office, stating various distances such as 200 feet, 250 feet, 29 feet, 10 feet, or even “a thousand miles” (video from CBS 60 Minutes). This includes corporate donors to Trump’s vanity projects like the golden ballroom and the arch, his children and even himself.
Democrats argue that Trump’s promise to hand out sweeping pre-emptive pardons will normalize his administration’s abuses of power and shield his federal officials from accountability for carrying out illegal orders, engaging in illegal self-enrichment activities or violating laws and court orders.
But Liz Oyer, a former Pardon Attorney for the Department of Justice, points out that such mass pre-emptive pardons could backfire. Oyer says such pardons won’t block accountability because they come with some important legal limits.
For one thing, Trump’s proposed mass pardons would be unprecedented and Congress may be able to challenge them under the Constitution. But even assuming his pardons are valid, there are limits on what they can do for recipients.
For example, presidential pardons only protect people from federal criminal prosecution. They don’t keep Congress from investigating anything. The pardons could even make it easier for Congress to make the recipients cooperate with investigations because once you’ve been pardoned, you can no longer invoke your Fifth Amendment right to self-incrimination to avoid testifying. This means Congress could subpoena every single person to whom Trump granted a pardon, and ask them to describe in detail all the crimes they have committed. If they refuse to comply, they leave themselves open to prosecution for obstructing Congress or giving false testimony. If they do comply, their testimony could aid in bringing civil prosecutions on behalf of taxpayers or victims. Their testimony could also be used by future administrations to bring civil enforcement actions by federal agencies like the Department of Homeland Security (DHS) or the Securities and Exchange Commission (SEC). While these enforcement actions aren’t criminal, they can still have consequences, including tremendous financial penalties. They can even shut down businesses and bar financial executives from working in the securities industry or for any publicly-owned company.
“That can be devastating for anyone whose world revolves around making money,” Oyer says.