Trump broke ground campaigning on pardons, legal experts say

President-elect Donald Trump has vowed to pardon at least some of the participants in the Jan. 6, 2021, riot at the U.S. Capitol shortly after his inauguration next month — following up on a rare campaign promise for judicial action, legal experts note.

“Pardons could be ready to go from the moment he takes office. He just needs to sign them and that’s that. Traditionally, though, they have not been issued on Day One like that. But Trump has done things a bit differently than his predecessors,” said Brian Kalt, a professor at Michigan State University College of Law.

Mark Osler, a law professor at the University of St. Thomas, said presidential candidates “should say how they would use the clemency power. And Trump finally did.”

“If you talk about something openly to get elected, then there is a mandate there to act,” Mr. Osler said.

The president-elect’s promise of pardons has not escaped the attention of the Jan. 6 defendants, many of whom have asked for post-election delays in their trials and sentencing.

On Wednesday, U.S. District Judge Amit Mehta, who presided over the sedition trial of Oath Keepers in the Capitol riot, said it would be “frightening” if the group’s founder is pardoned.

“The notion that Stewart Rhodes could be absolved of his actions is frightening and ought to be frightening to anyone who cares about democracy in this country,” Judge Mehta said in sentencing another member of the group.

Judge Mehta isn’t the first judge at the federal courthouse in Washington to criticize the possibility that Mr. Trump could pardon hundreds of Capitol rioters when he returns to the White House, The Associated Press reported.

U.S. District Judge Carl Nichols, a Trump nominee, said during a hearing last month that it would be “beyond frustrating and disappointing” if the Republican president-elect issues blanket pardons to Capitol rioters, the AP reported.

On the campaign trail, Mr. Trump promised to free hundreds of Capitol rioters, who overtook the federal building in protest while Congress was certifying the results of the 2020 election. More than 1,200 people have been charged with crimes related to the riot.

In a BBC interview this month, the president-elect reiterated his intention to exonerate the rioters.

“We’re going to look at independent cases,” Mr. Trump said. “Yeah, but I’m going to be acting very quickly. … first day.”

During the campaign, Mr. Trump also said he would commute the life sentence of Ross Ulbricht, who was convicted in 2015 of federal crimes related to his operation of Silk Road, a dark web marketplace for illegal products and services.

“If you vote for me, on Day One I will commute the sentence of Ross Ulbricht,” Mr. Trump said to cheers at the National Libertarian Convention in May. “We’re going to get him home.”

Mr. Trump may have a team already preparing which cases he plans to pardon or commute on his first official day in office, or he could have a team in the Justice Department begin to take a look and analyze that once he is sworn in on Jan. 20.

“President Trump will make pardon decisions on a case-by-case basis for those who were denied due process and unfairly targeted by the justice system,” Trump-Vance transition spokeswoman Karoline Leavitt told The Washington Times.

What’s more, the president-elect could try to pardon himself. Although the federal cases brought by special counsel Jack Smith over the mishandling of classified documents and alleged election fraud have been dismissed, some of the charges could be refiled once Mr. Trump leaves office in 2029.

“That is something that legal experts have disagreed on,” said Dan Kobil, a professor at Capital University Law School, regarding the legality of a self-pardon.

“There has never been a case of it. [Richard M.] Nixon considered it and they decided that was a bridge too far — they couldn’t do that. The question, if it came up, would have to be decided ultimately by the Supreme Court, and I think there are pretty decent arguments on both sides,” Mr. Kobil said. “However, this Supreme Court has been very expansive in interpreting executive power, so there is a possibility they could say the president could do whatever he wants.”

The Supreme Court’s conservative majority in July ruled that a president has absolute immunity for core functions of his presidency — including the pardon power.

“The immunity decision is huge on that,” Mr. Kobil said. “It undercuts one of the arguments the framers used when they gave presidents the power to pardon treason. One of the things opponents of the Constitution argued was that pardoning treason was too great a power because the president may be in league with the traitors. The response was, if he is in league with the traitors he pardons, he can be criminally prosecuted for doing so. That is no longer true.”

The pardon power for the president is found in Article II, Section 2 of the U.S. Constitution. A president has broad power to “grant reprieves and pardons for offences against the United States,” meaning federal crimes.

Mr. Trump could issue pardons for his former administration officials, Steve Bannon and Peter Navarro.

Mr. Bannon served as Mr. Trump’s chief strategist in the White House, while Mr. Navarro worked as the director of the White House Trade Council. Both served time this year in federal prison for refusing to appear before the House’s Jan. 6 committee despite receiving subpoenas.

Both of their crimes were federal in their refusal to comply with the congressional subpoenas, but other close allies of Mr. Trump are facing state charges and would not be subject to receive pardons.

“He does not have the power to pardon for state convictions, period. And you can read it in the U.S. Constitution,” said Eric M. Freedman, a professor at Hofstra Law.

Those include Mark Meadows, who served as his chief of staff, and is facing charges in Georgia related to the Fulton County prosecution against Mr. Trump and 18 other defendants who contested the 2020 election. Rudolph Giuliani, who served as Mr. Trump’s personal lawyer, too, is facing charges in the same dispute in Georgia.

• This article is based in part on wire service reports.