President Donald Trump’s pardon of political allies for crimes related to the 2020 election raises a host questions, one of them being: Why did Trump go out of his way to exclude himself?
After listing dozens of allies and supporters, including Rudy Giuliani, John Eastman and others, who have faced legal exposure in various venues, the order said that it “does not apply to the President of the United States, Donald J. Trump.” Ed Martin, Trump’s failed U.S. attorney nominee-turned-pardon attorney and “weaponization czar,” posted the order on social media on Sunday night from his personal account and then again on Monday morning from his official account.
That presidential caveat doesn’t appear in Trump’s proclamation from the beginning of his second term that pardoned, commuted and ordered the dismissal of Jan. 6 cases. Like the new clemency order, the earlier one claimed to end “a grave national injustice that has been perpetrated upon the American people.”
The two proclamations differ in that the Jan. 6–specific one involved cases in which people had pending federal prosecutions or had already been convicted, whereas the new one applies to people who aren’t presently the subject of federal prosecutions. Trump and some of his allies and supporters, including the latest pardon recipients, have been the subject of state prosecutions, though the presidential pardon power is for offenses “against the United States,” meaning federal, not state crimes. The Georgia state case, in which Trump and others were charged (some have already been convicted), is nearing a deadline for a new prosecutor to take over after Fulton County District Attorney Fani Willis was disqualified. (As I have explained previously, the case may have effectively ended already with Willis’ disqualification, but it technically remains alive pending word on a new prosecutor.)
Still, the difference between those two proclamations doesn’t necessarily explain why Trump excluded himself in the new pardon. At least, it doesn’t necessarily explain it legally — which, of course, could be beside the point if this latest proclamation is more of a political document, given its seemingly limited legal effect on nonexistent federal prosecutions and state prosecutions that presidents can’t pardon. (I’m not sure of a political explanation, either, because the animating principle of the pardon is that Trump thinks the beneficiaries were victimized and did nothing wrong; perhaps the implication is that he is so above the law, which operates against ordinary people, that he needn’t stoop to being pardoned as ordinary people, even his allies and supporters, would.)
Another potentially relevant aspect is that Trump has no reason to worry about being prosecuted anywhere in the short term. Not that this subservient Department of Justice would prosecute him, but the DOJ has a policy against prosecuting sitting presidents, which is what led to his two federal cases going away. And for reasons underlying that DOJ policy, he likely wouldn’t stand trial in the Georgia case if it were to go forward against his co-defendants while he’s in office. Plus, the Supreme Court gave him broad criminal immunity, the limits of which haven’t been fully litigated. (If the Georgia case moves forward, those limits could be further explored pretrial, even if such litigation wouldn’t happen until he leaves office.)
Again, the legal reason (if there is one) for Trump going out of his way to exclude himself from the new pardon, as opposed to just not mentioning himself, isn’t clear. But given the lack of any imminent prosecutions moving against him, it wouldn’t be necessary yet for him to make the legally untested move of a self-pardon. If he is contemplating such a move, he could wait until the last minute before he leaves office to cover any and all federal exposure he might otherwise face.
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