The President Can Pardon Trump

This prosecution sets a dangerous precedent that will likely lead to many more politically targeted prosecutions. President Biden can avert this danger and unify the country by issuing a pardon. If he fails to do so and I am elected president, I will pardon Mr. Trump on Jan. 20, 2025.

Normally the president has no power to pardon a defendant for criminal charges brought under state law. But this case is different. The New York felony charges appear to rely entirely on claims that Trump violated federal law. Without the purported federal crimes, the state charges would be misdemeanors and the statute of limitations would have lapsed. That means if the alleged federal crime is pardoned, the state felony charges fall too.

Article II, Section 2 of the U.S. Constitution authorizes the president to pardon “all offenses against the United States, except for cases of impeachment.” This grant is broad, and the effect of a presidential pardon is total. As the Supreme Court explained in Ex Parte Garland (1866), “a pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.”

The court reiterated that broad view in Knote v. U.S. (1877): “A pardon is an act of grace by which an offender is released from the consequences of his offense.” The justices have looked to English common law for guidance on the reach of the president’s pardon power. Cuddington v. Wilkins (1615) explained that “the King’s pardon doth not only clear the offense itself, but all the dependencies, penalties, and disabilities incident unto it,” and

Matthew Bacon’s

treatise explained that at common law the pardon cleansed not only the punishment for the crime but “all the legal disabilities consequent on the crime.”

States can’t constitutionally convert federal crimes into state felonies for the purpose of shielding such crimes from presidential pardon. The U.S. Justice Department has concluded that a pardoned offense can’t be used to convict a defendant under state law of being a felon in possession of a firearm, as the California Court of Appeal agreed in Harbert v. Deukmejian (1981). If a presidential pardon were ineffective in Mr. Trump’s case, states could circumscribe the presidential pardon power entirely.

Unlike the New York charges, this legal theory is intuitive: Federal courts have repeatedly held that states can’t legally penalize defendants for pardoned federal crimes. In Boyd v. U.S. (1892), the Supreme Court held that a full and unconditional presidential pardon restored a person’s competency to testify as a witness in state court. In Bjerkan v. U.S. (1975), the Seventh U.S. Circuit Court of Appeals found that a full pardon broadly restores civil rights including the rights to vote, to serve on juries and to work in certain professions. If states can’t use a pardoned federal offense to deprive a citizen of these rights, how can they convict him criminally of a pardoned federal offense?

It’s true that in Carlesi v. New York (1914), the justices held that a state was allowed to use a pardoned federal offense under a state law that allowed enhanced sentencing for repeat offenders—a case that is difficult to reconcile with Ex Parte Garland, Knote or the high court’s subsequent holding, in Burdick v. U.S. (1915), that a full pardon absolves the defendant “from the consequences of every such criminal act.” Even in Carlesi, the court made clear that its decision was “narrow” and applied only when considering the effect of a pardon in a “subsequent state offense” and when the state’s action was “not in any degree a punishment for the prior crime.” In Mr. Trump’s case, the alleged state crime isn’t “subsequent” to the alleged federal violation but part and parcel of it.

The court in Carlesi went further: “It is therefore to be conceded that if the act of the state in taking into consideration” the pardoned federal offense “was in any just sense a punishment for such prior crime . . . the act of the state would be void because destroying or circumscribing the effect of the pardon granted under the Constitution and laws of the United States.”

If New York’s state charges “take into consideration” a pardoned federal offense as the basis for a felony conviction, that would violate Carlesi’s emphatic holding that the state conviction can’t “in any just sense” be a punishment for that offense. If the federal crime is an element of the alleged state crime itself—which it is in Trump’s case—Carlesi’s limited exception for sentencing enhancements doesn’t apply.

Mr. Trump may try to pardon himself if he is elected, but that would be politically awkward, legally contested and unprecedented. President Nixon’s Justice Department opined that a self-pardon is constitutionally impermissible. Better for Mr. Biden to pardon Mr. Trump now. If he doesn’t, the next president who isn’t Donald Trump should.

Mr. Ramaswamy, a candidate for the 2024 Republican presidential nomination, is a co-founder of Strive Asset Management.