Donald Trump’s administration has recently published a list of 143 presidential pardons on the 45^th President’s final day as Commander-in-Chief. The former president’s pardons were touted to include beneficiaries ranging from Trump himself and family members, to his personal lawyer Rudy Giuliani, to the subject of the Netflix series ‘Tiger King’, Joe Exotic. Perhaps because of his constant departure from presidential norms, Trump’s power to grant clemency has attracted abnormal attention.

What are presidential pardons?

Every American president is given the right to grant “Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”, according to Article II Section 2 of the US Constitution. It was intended to be an executive power that acted as a check and balance on the federal justice system and to afford mercy to offenders whose sentences outweigh the severity of their crime. In 1866, the Supreme Court ruled, among other things, that prospective pardons may also be granted by a president. This means a president can grant clemency to someone before any impending charges are filed. The most famous example of a prospective presidential pardon came in 1974, when Gerald Ford pardoned Richard Nixon after the Watergate Scandal. The potential of prospective pardons contributed to the unprecedented attention surrounding Trump’s pardoning process. It was thought that he would attempt to shield himself, his family and other close allies from myriad potential legal issues that may arise once he loses the protection gifted to him by America’s highest office. However, this did not occur.

Notable absentees

Surprisingly absent from the former president’s list of pardons are his family members, his personal lawyer, Rudy Giuliani, and Republican lawmakers possibly implicated in the breach of the Capitol earlier this month. Trump was convinced by his legal advisors only days before he left office to refrain from pardoning his family. They told him that to do so without citing specific crimes would convey an admission of guilt, leaving him and his family open to future legal difficulties. The Trump team also believe that pardoning Republican lawmakers potentially involved with the Capitol insurrection would result in him feeling the ire of Republican senators set to decide his fate in an impeachment trial next week.

Significantly, Trump has decided against self-pardoning. This course of action came as no surprise, but had been a significant worry throughout Trump’s entire tenure. The former president likely eschewed self-pardoning for the same reasons he didn’t pardon his own family; namely that it may be interpreted as an admission of guilt.  Additionally, the likelihood of a self-pardon being legally robust is quite slim. The presidential power to pardon, “except in Cases of Impeachment” excerpt of the Constitution is commonly interpreted as saying that a president cannot pardon themselves or others associated with their own impeachment. Basically, if Trump self-pardoned, he can still be impeached by Congress and prevented from running for president again. In fact, this would make it more likely for the Senate to confirm his impeachment. Thirdly, presidential pardons only apply for federal offences. Trump does not have the power to prevent state prosecutors from investigating his financial affairs, for example, as is currently happening in New York. The seeming admission of guilt, along with the Senate confirming his impeachment, that would come with a self-pardon are unlikely to help Trump’s state-level cases.

The most outraged responses to Trump’s list have been fuelled by the exclusion of WikiLeaks founder Julian Assange, who is currently imprisoned in Belmarsh Prison and NSA whistleblower Edward Snowden, who has been exiled in Russia since 2013. Both men are lauded as defenders of free-speech. Many see Trump’s omission of the two as, firstly, an attempt to pander Republican senators overseeing his impeachment trial next week and, secondly, as an attack on the free press and journalists attempting to hold officials accountable. Trump’s exclusion of the whistleblowers comes in the aftermath of his decision in December to pardon the Blackwater contractors convicted of killing 14 Iraqi civilians in 2007.

Notable inclusions

Steve Bannon, Trump’s former chief strategist, was granted full clemency. Bannon, who has been described as ‘the most dangerous political operative in America’, was charged last year with illegally extracting funds raised by Trump supporters to privately contribute to a Southern border wall. While Bannon left the administration in 2017 and was subsequently nicknamed “Sloppy Steve”, he and Trump rekindled their relationship in light of the former president’s false accusations of voter fraud. Also pardoned were Elliott Broidy, a Republican Party fundraiser who pleaded guilty to multiple charges of illicit financial activities, and Kwame Kilpatrick, the former Mayor of Detroit who received a twenty-eight year sentence for corruption in 2013. Various other convicted swindlers and criminals have seen their sentences reduced or scrapped in Trump’s final acts as president.

Two headline-grabbing recipients of presidential pardons were rappers Lil Wayne and Kodak Black, who face federal charges for firearm possession and for making a false statement to buy a firearm respectively. Lil Wayne’s pardon seems to have been granted due to his support for Trump during last year’s election campaign, while Kodak Black was praised for his philanthropic work.

Donald Trump’s time as US president has never been bereft of controversy and outrage. One can only admire how little his final pardons deviate from that trend.