This month, President Trump issued “a full, complete and unconditional pardon” to end “a grave national injustice perpetrated upon the American people following the 2020 Presidential Election.” He wrote that this continues a “process of national reconciliation” that presumably began, at least in Trump’s mind, with his January pardon of more than 1,500 people — including hundreds of violent offenders — involved in the January 6, 2021 storming of the U.S. Capitol.
This new pardon has been widely reported as routine, but it in fact threatens the rule of law and the states’ independent sovereignty.
The pardon covers all actions by U.S. citizens “in connection with the 2020 presidential election,” that are related to “the advice, creation, organization, execution, submission, support, voting, activities, participation in, or advocacy for or of any slate or proposed slate of presidential electors, whether or not recognized by any state or state official.” It also covers “any conduct relating to their efforts to expose voting fraud and vulnerabilities.”
Trump also lists 77 covered individuals by name. One is Christina Bobb, his former lawyer, who once falsely told the FBI that all classified records taken to Mar-a-Lago had been returned to the U.S. government. It includes John Eastman, a since-disbarred lawyer and law professor who infamously drafted two memos asserting that then-Vice President Mike Pence could simply refuse to gavel Biden in as president in 2021. It also includes Rudy Guiliani.
None of those named in Trump’s proclamation have been charged with federal crimes. However, some people whose conduct likely falls under Trump’s proclamation were indicted in Michigan for a so-called “fake electors” scheme, which involved the signing of a document falsely claiming that Trump had won the state’s 2020 election. And in Georgia, Trump was indicted along with 18 others in August 2023 for a scheme to overturn his 2020 loss in that state. (Trump himself is explicitly excluded from this pardon.) In April of 2024, Bobb and 16 others were indicted in Arizona on similar charges. This pardon proclamation is therefore primarily about state and not federal law.
Article II of the Constitution has always been understood to mean presidents can pardon only federal crimes, not state or local crimes.
So what is the real point of the Nov. 9 pardon proclamation? Perhaps it is a preemptive pardon, insulating recipients from future federal prosecutions — much like former President Joe Biden’s controversial pardons of his son, Hunter, and other family members. But that hardly makes sense, since the five-year statute of limitations for federal crimes relating to fake electors schemes will expire anyway in January.
A second possibility derives from Trump’s mention of “national reconciliation” — a nod to the long tradition of presidents issuing amnesty pardons to help the country move on after a divisive crisis, as did President George Washington after the Whiskey Rebellion and President Jimmy Carter after the Vietnam War. Yet Trump’s approach to Jan. 6 has hardly been conciliatory. Not only has he continued to push the lie that the 2020 election was stolen, but he has also retaliated ferociously against those who contradict it. Just ask Christopher Krebs, who had overseen federal cybersecurity for the 2020 election. Trump fired Krebs and singled him out in an executive order to be investigated because he had rejected Trump’s false claims of widespread election fraud.
A third option is that the pardons are “largely symbolic,” as Alan Feuer and Glenn Thrush suggested for The New York Times — a reminder that that Trump “has often used his expansive powers to reward and protect his allies.” Liz Oyer, the Justice Department’s former top pardon attorney who was fired by Trump, has stated that these pardons set “a very dangerous and alarming precedent by sending this message to those who may be thinking about committing crimes in the name of MAGA or Donald Trump, that they can expect that they will not face consequences under our laws for those crimes.”
But Trump rarely stops with mere symbolism when it comes to defying constitutional norms. Hence a more disturbing explanation: He is setting the stage for massively expanding his pardon power under Article II to include state offenses.
After all, he convinced all nine Supreme Court justices to ignore the plain language of the Fourteenth Amendment barring insurrectionists from holding federal office. Likewise, when his unconstitutional executive order purporting to abolish birthright citizenship went to the conservative majority earlier this year, the justices let it stand, at least for now. And Trump also keeps hinting at a third presidential term, despite the 22nd Amendment’s clear two-term limit.
In Trump’s distorted legal world, the Article II pardon power’s reference to “Offenses against the United States” could be manipulated to mean anything Trump believes is a “grave national injustice perpetrated upon the American people,” as he put it. How long before someone raises this pardon as a defense against a state prosecution and loses that argument in state court, only to have Trump’s Supreme Court pals intervene on appeal to give him whatever “constitutional” power he wants?
Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer — and Why.”
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