Could Mike Pence be Prosecuted for Pardoning Donald Trump?

Some people have put forth the idea that perhaps Donald Trump might resign as president in the days before Joe Biden is sworn in as our new president in order to give Mike Pence the opportunity to accede to the job so he can grant him a pardon. There is a historical precedent for this in Gerald Ford’s pardon of president Richard Nixon, but there are a number of things to consider that would appear to make that idea problematic.

Part of the problem is that such a pardon would almost certainly be vague, with no mention of any specific acts or wrongdoing. While the Nixon pardon was similarly non-specific Ford was able to get away with it because everyone just wanted it to be over so no one challenged the pardon in court. Whereas at this point everyone is again ready for it to be over it is almost certain that someone would try to have any pardon in this case overturned. Another roadblock is that by pardoning Trump Pence might be opening himself up for criminal prosecution.

A presidential pardon confers on the recipient immunity from any criminal penalties for the offenses it covers. Granting a pardon before there are even formal charges filed, much less a conviction, shuts down the justice process before it can even begin. There is no doubt that a sitting president would be able to grant a pardon like this after he becomes aware of the possibility of someone facing prosecution, so long as that knowledge was obtained after he was already president. But in the case of Pence pardoning Trump, we would have one person agreeing to resign specifically for the purpose of the other person to grant a pardon of criminal activity that they already knew had taken place. That would nicely fit the description of a conspiracy to obstruct justice, and if the actual pardon was upheld there could also be a charge of actual obstruction of justice.

One might ask if this is a crime why wasn’t Gerald Ford prosecuted for it, since he pardoned Nixon after he resigned? One reason is that he was president for more than two years after he pardoned Nixon, so nobody would have been interested in pursuing it. But also, we have the difference that Ford was nominated to be VP a full year before Nixon’s resignation, at a time when he had no reason to think he’d need to resign. But if Trump resigns this late in his term and then gets pardoned there will be no doubt that he and Pence agreed to the pardon beforehand, thereby establishing a conspiracy to subvert the criminal laws. And while Pence were president, he would not be able to be charged; but as soon as he left office, he would be liable for any crimes committed during that short term.

What is interesting is that the question of whether Donald Trump could be similarly charged would hang on whether the pardon Pence issued him held up under any legal challenge. If it were upheld the crime of conspiring to obstruct justice would probably be covered under its provisions and he would only be named in Pence’s charges as an uncharged coconspirator; but if the pardon were invalidated for any reason, Trump would then also be on the hook to be indicted as well. This would certainly bring a bizarre end to one of the most tumultuous presidencies in our history.

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