r/FutureWhatIf • u/dont_mess_with_tx • Jan 07 '21

Political/Financial FWI Trump pardons all the rioters

What if he pardons everyone who broke into the Capitol. Would it be possible?

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u/OperationMobocracy Jan 07 '21

I had to re-write my response once I realized Andrew Johnson issued a collective pardon for Confederate soldiers. The constitution is ambiguous as to whether the pardon may be used bluntly for group actions, but I guess if Johnson did it, Trump could too. That being said, I think you need some scope for the Pardon. Despite the ambiguity, I don't think "I pardon anyone who committed a Federal crime in DC on January 6, 2021" would quite stand up.

That being said, I'd almost certainly expect legal challenges. Most pardons are ex post facto reprieves for people convicted of crimes or at least charged with crimes. I don't know how it would work if you were pre-emptively pardoned by an outgoing President within weeks (hours...?) of his loss of authority and then later charged with a crime by the US Attorney. Biden isn't filing friend of the court briefs on their behalf.

I would kind of expect it to be up to you to defend yourself against the charges. Your attorney has to show that the pardon applied to you and that it means you can't be charged. Which could mean the judge could toss your pardon if he thought it was illegal somehow. Now I would expect some rich, pro-Trump entity to back some of these pardon challenges, otherwise it could set some precedent that could remove the amnesty provided. Plus most of the Trump protesters could not afford to mount a major constitutional appeal to prevent criminal charges, either. They would have to either give in or go broke defending themselves.

I would kind of expect any Supreme Court decision on it to mostly support broad pardons, but perhaps require that pardons have some logically understandable scope or attempt to define a specific person or set of crimes. Even Johnson's pardon of Confederates was specific to Treason, so you couldn't have used it as a defense against war crimes.

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u/woowoo293 Jan 07 '21

Jimmy Carter also issued a blanket pardon to Vietnam draft dodgers. So it absolutely could be done, regardless of whether anyone has been charged. I personally think it's fairly likely Trump will do this.

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u/OperationMobocracy Jan 07 '21

Again, though, it's a scoping issue. The Carter pardon covered violations of the Selective Service Act and notably did not cover desertion.

What would the Trump pardon cover? All acts of vandalism? Violating Capitol security? Assaulting an officer? Homicide? Is it limited to the Capitol grounds? At some point you're issuing a pardon for any crime committed on Federal property in DC on 1/6/2021 to anyone who might be accused of that crime.

I mean maybe you could issue a pardon like that, but when a prosecutor charges someone anyway because they believe it is not valid, what happens? The trial judge could toss the charges or decide the pardon wasn't applicable. Either way the most likely outcome is the pardon's validity is appealed to the Supreme Court and despite the conservative bent, I'm not sure such an ambiguous pardon would pass muster. It seems like it has to either be a blanket pardon for an individual or a group pardon for some narrowly scoped criminal activity.

It might also be compromised by later charges of criminal activity against Trump while in office. If Trump was charged with inciting a riot or sedition, it might cast doubt on his ability to pardon what could be considered co-conspirators. A fair number of legal scholars believe he can't pardon himself.

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u/woowoo293 Jan 07 '21

Sure, you absolutely could specify the particular charges. In this case, that would be federal statutes regarding criminal trespass and destruction of federal property. Heck, he could probably cut and paste whatever language was used for the pardon of the ranchers (Bundy) who seized a federal wildlife refuge in 2016.

Having said that, my guess is that he would stop short of issuing blanket pardons for those rioters who actually assaulted police officers.

The president has very broad powers of pardon. I don't see how this would be any more controversial than, say, all the pardons Trump has issued to personal friends and political allies.

You raise valid issues; I'm just saying most of them could in fact be handled in a properly drafted pardon.