Trump did not pardon himself on his way out of office even as he faces a mountain of legal and political risk
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- Former President Trump did not preemptively pardon himself before leaving office on Wednesday.
- Several Trump associates reportedly warned him against pardoning himself.
- Trump would have forfeited his Fifth Amendment right against self-incrimination if he'd pardoned himself.
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Former President Donald Trump did not preemptively pardon himself before leaving office on Wednesday.
This development caps months of speculation on whether Trump, facing mounting legal and political exposure, would take the unprecedented step of issuing himself a pardon on his way out of the White House.
The president also did not pardon any of his three adult children, Donald Jr., Ivanka, and Eric, who help oversee the Trump Organization.
CNN reported on Tuesday that attorneys, including the White House Counsel Pat Cipollone, had talked Trump out of the idea of trying to pardon himself or his children, saying that the move could make him appear guilty and open him up to further legal jeopardy.
The outlet said that despite Trump's strained relationship with Cipollone, his message "resonated" and "spooked" Trump into backing off of the idea of pardoning himself.
As president, Trump had the power to issue a pardon even when the recipient hasn't been charged or convicted of a crime. The Supreme Court ruled in 1866 that the power "extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their presidency, or after conviction and judgment."
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It was unclear whether a self-pardon would hold legal water
Whether he could pardon himself, however, was less clear. The question has never been tested, and the Supreme Court has not weighed in on it.
Several associates, including Cipollone and former Attorney General William Barr, cautioned Trump against pardoning himself, The New York Times reported. They warned that the president would forfeit his Fifth Amendment right against self-incrimination if he did so, and it could also negatively affect Republican senators' view of Trump ahead of his Senate impeachment trial.
The House impeached Trump on one article of inciting the January 6 insurrection waged by the ex-president's supporters on the US Capitol. Ten Republicans joined House Democrats in impeaching Trump for the second time in his presidency, a first in US history.
Trump's Senate trial, in an evenly-divided chamber with 50 Democrats and 50 Republicans, will occur after he has already left office. The Senate can take a vote to bar Trump from holding federal office again if they convict him. Assuming all 50 Democrats vote to convict, 17 Republicans would need to join them to get to the required two-thirds majority.
Trump also faces potential criminal exposure related to the attempted coup that resulted in five deaths. FBI and Justice Department officials have said they're conducting an "unprecedented" criminal investigation into the attempted coup, and the acting US attorney in Washington, DC, has not ruled out charging the president.
Carolyn Kaster/AP
Trump could now face legal exposure from multiple state and federal investigations
Meanwhile, Trump and his businesses are under significant investigative scrutiny on both a federal and state level. The president is said to be particularly concerned about two New York fraud investigations into the Trump Organization's financial activities. One is a civil probe being conducted by the New York attorney general's office and the other is a criminal investigation by the Manhattan district attorney's office.
Potential charges that come from either inquiry would not be covered under the scope of a pardon, which only applies to federal crimes.
The attorneys general of Maryland and Washington, DC, have also filed a federal lawsuit accusing the president of violating the Constitution's emoluments clause by personally profiting off foreign officials and diplomats who stayed at Trump properties while he was president.
Trump may also come under scrutiny for actions that were outlined in the special counsel Robert Mueller's final report on the investigation into Russia's interference in the 2016 US election. The 448-page report detailed at least 11 instances in which prosecutors said Trump attempted to obstruct justice, and Mueller testified to Congress in 2019 that the president could be indicted for that crime after leaving office.
The Federal Election Commission is also investigating a complaint accusing the Trump campaign of having "disguised" and laundered nearly $170 million worth of spending.
The president was also named as an unindicted co-conspirator,"Individual-1," in the Southern District of New York's case against his former personal attorney, Michael Cohen.
Cohen pleaded guilty in August 2018 to five counts of tax evasion, one count of bank fraud, one count of making an unlawful corporate contribution, and one count of making an illegal campaign finance contribution on October 27, 2016.
The final two charges were related to hush money payments made to the adult-film star Stormy Daniels and the former Playboy model Karen McDougal before the 2016 election. Both women had threatened to go public with details of extramarital affairs they said they had with Trump in the 2000s.
Cohen said he facilitated a $130,000 payment to Daniels "at the direction of the candidate" and with the "purpose of influencing the election," which violates campaign finance law by exceeding the maximum contribution of $2,800 that a person can give to a candidate for federal office.
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Cohen also admitted to orchestrating an illegal $150,000 payment from the Trump campaign to American Media Inc., the publisher of the National Inquirer, to purchase the rights to McDougal's story but never publish it, a practice known as "catch-and-kill."
Under the Biden administration, the Internal Revenue Service may hand over Trump's long-sought-after federal tax returns to congressional investigators, the contents of which could further legally jeopardize Trump. The New York attorney general's office and the Manhattan District Attorney's office are also both investigating whether some tax write-offs that benefited Ivanka Trump broke the law.
And as Trump leaves office himself and sees his successor inaugurated, a legal cloud still hangs over the finances behind his own inauguration.
In addition to an active SDNY investigation into the Trump inaugural committee's spending and whether the group traded donations for political access, Karl Racine, the attorney general for Washington, DC, filed a lawsuit in July accusing Trump of using the inaugural committee as a vehicle to enrich his family and business interests by accepting above-market rates from the Trump International Hotel in DC.