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Can Trump pardon himself? Will Biden pardon him? Here's what you should know

The president was impeached for a second time Jan. 13. With days left in his presidency will Trump attempt a self-pardon?

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- 07:25
President Trump

What will Trump do before his presidency is over? 

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Who will President Donald Trump pardon on his final day in office on Tuesday? White House staff met over the weekend to compile a list of around 100 people the president will pardon or commute their sentence according to a report from CNN Monday. According to a Fox News reporter, Trump will not attempt to pardon himself -- which some scholars say would be illegal (more on that below) -- nor his family members.

The House of Representatives impeached President Donald Trump for a second time on Jan. 13, a first for any US President. As the Senate awaits to start its trial to determine whether Trump incited an insurrection when a mob of his supporters stormed Capitol Hill on Jan. 6, Trump still retains pardoning power, which he can use to unilaterally forgive a person for federal crimes. Trump has reportedly asked aides about the reach of his pardoning power since the November election, which he lost to President-elect Joe Biden.

Before Trump's impeachment vote in the House, at least two figures connected with the White House -- former Attorney General William Barr and White House counsel Pat Cipollone -- had previously reportedly warned the president not to attempt a self-pardon, according to CNN. But could he? What kind of pardoning power does a president have and who might Trump pardon next? Here's what you need to know about presidential pardoning. 

Can Trump pardon himself if he's charged with a crime?

Trump seeking a self-pardon would be unchartered territory, with no precedent and also no outright rule against it -- apart from one. For Trump, it may be the only barrier that matters.

The Constitution, under Article II, Section 2, Clause 1, gives the president the power to pardon individuals -- "except in Cases of Impeachment." The language of the law is clear on that. The House has voted and impeached Trump, an action that's on the permanent record. The next step is for the Senate to either convict or to acquit

If convicted, the law could disqualify pardoning power. As of now, Trump still holds the office of the president. The House voted to impeach Trump on two counts in Dec. 2019, but he was acquitted in the Senate and has retained his pardoning power ever since.

Is Trump barred from using a self-pardon?

The Constitution doesn't explicitly bar a president from granting self-clemency against prosecution. In the event that Trump tested the law, it could come down to interpretation. Some legal scholars suggest that if there's no explicit rule against self-pardoning in the text, then it isn't legal.

"No president has the constitutional authority to self-pardon," said Jared Carter, assistant professor at Vermont Law School

While no president has yet attempted to pardon himself, President Richard Nixon did ask the Office of Legal Counsel in 1974 for an opinion on the matter while he was entrenched in the Watergate scandal

"Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself," Mary C. Lawton, acting assistant Attorney General for the Office of Legal Counsel, said in a memo on Aug. 5, 1974. Nixon resigned on Aug. 9, 1974. 

In purely academic terms, if Trump weren't impeached and attempted to go through with the action before the end of his presidency, the only way to test the legality of a self-pardon would have been for him to be charged with a federal crime. This would, theoretically, most likely have occurred through the Department of Justice after Biden takes office on Jan. 20. From there, the case would hypothetically have to make its way to the Supreme Court, which would ultimately decide the legality of a self-pardon. Again, the situation has now changed. 

If he resigns, could Pence pardon Trump? 

This scenario would be similar to President Gerald Ford's pardoning Nixon following his resignation due to the Watergate scandal. Trump could resign before his presidency ends, which would make Vice President Mike Pence the president. In turn, Pence could pardon Trump. 

Importantly, the same constitutional law on pardons prevents a president from pardoning a person who has been impeached -- which in this case would likely mean convicted in the Senate, not solely impeached by the House. Trump would likely have had to resign before being convicted in a Senate impeachment trial, if it were to take effect. Biden will be named president on Jan. 20.

Vice President Pence

Will Vice President Pence come to Trump's rescue?

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There are a couple of nuances here. First, the pardon applies to federal crimes, which means that in this very hypothetical scenario, a pardon from Pence would mean that Trump wouldn't be held accountable for indictments regarding the Capitol Hill riot. However, he could still be convicted for any state crimes, which is currently under investigation by the Manhattan district attorney

There's a possibility charges could be filed in Washington, DC, by the city's Attorney General Karl Racine. In an interview with MSNBC on Jan. 11 , Racine said he's looking to charge those who spoke at a rally before the riot, which includes the president "under the DC code of inciting violence." 

If this scenario were to play out -- again this is highly theoretical only -- a move to pardon Trump could sour any hopes of Pence running for president in 2024 with some constituents. But it may bolster Pence's case with Trump's base. 

And if Trump were to resign with Pence immediately pardoning him, at least one attorney has suggested legal trouble.

"Theoretically, [Pence] could be opening himself up to a criminal prosecution for bribery or corruption If he did it," said William A. Burck, partner at Quinn Emanuel Urquhart & Sullivan. 

Would President-elect Biden give Trump a pardon?

This is a highly unlikely move by the next president, but there are some people saying Biden should consider the option. One of the most notable voices in favor of this is the former director of the FBI -- who was fired by Trump himself -- James Comey. 

"He [Biden] should at least consider it," Comey said on Jan. 13. "I obviously think he [Trump] belongs in jail, but I don't think pursuing that is in the best interests of the entire nation." 

So far, there is no indication the Biden administration is contemplating a pardon. 

Does Trump have the power to pardon everyone at the Capitol Hill riot? 

Technically, yes, as long as Trump still maintains his pardoning power. On the day the mob stormed the Capitol, 13 people were arrested. Since then, law enforcement charged dozens more who traveled to Washington to participate in the riot after the FBI posted more pictures of suspects. Those arrested could be charged with federal crimes and face time in jail of up to 10 years. 

Trump could pardon each individual charged with a crime or provide a blanket pardon for anyone facing federal penalties for the riot. There is precedent for this mass pardoning. When President Jimmy Carter took office in 1977, one of his first acts was to pardon anyone who evaded the Vietnam War draft

Can Trump pardon anyone he would like to? Is there a limit?

Technically, there isn't a limit on the number of pardons a president can grant. Along with the previously mentioned blanket pardon by Carter, President Andrew Johnson pardoned hundreds of thousands of Confederate soldiers and wealthy Southerners during his time in office. 

Who has Trump pardoned while in office? 

Trump has pardoned 70 people, so far. This includes former members of his campaign and staff who made false statements to federal agents -- Michael Flynn, Roger Stone, Paul Manafort and George Papadopoulos. He also granted posthumous pardons to women's rights activist Susan B. Anthony and early 20th-century championship boxer Jack Johnson

Who else could Trump pardon before Jan. 20? 

There are still a number of people Trump could pardon before the end of his presidency. While Trump reportedly won't pardon his children preemptively -- Ivanka, Don Jr. and Eric Trump -- members of his staff who might receive a pardon could include personal attorney Rudy Guiliani (who is at risk of losing his membership to the New York State Bar Association), Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John McEntee and social media director Dan Scavino, according to a report from Bloomberg

It's also reported Trump could pardon a few celebrities, including rappers Lil' Wayne and Kodak Black. A report from CNN Monday says the White House staff has a list of approximately 100 people who will receive a pardon or have their sentences commuted.