Trump might pardon Ivanka, Eric, and Don Jr., though it's not clear how that would work

Peter Weber

Fox News host Sean Hannity said Monday night that if President-elect Joe Biden "ever became president, I'd tell President Trump to pardon yourself and pardon your family." Trump is seriously considering the suggestion, ABC News and The New York Times reported Tuesday. "Trump has told others that he is concerned that a Biden Justice Department might seek retribution against the president by targeting the oldest three of his five children — Donald Trump Jr., Eric Trump, and Ivanka Trump" — plus his son-in-law Jared Kushner, the Times reports.

It's not at all clear how — or even if — that would work, especially since none of Trump's children are known to be under investigation for any federal crime. Legal scholars generally agree that Trump cannot pardon himself but can pre-emptively pardon other people for crimes they haven't yet been charged with committing, as happened with former President Richard Nixon and Vietnam draft dodgers who fled to Canada. But "no president has tried to grant someone a pardon for crimes they have not yet committed — essentially a prospective get-out-of-jail-free card — and legal experts say it is unlikely to hold any weight," the Times reports.

Some of the Trump allies pushing for these pardons told ABC News they see them as an "insurance policy" against politically motivated prosecutions, though Trump apparently "has not to this point embraced the idea of pre-emptive pardons, with some aides concerned that a pre-emptive pardon could be seen as an admission of guilt of some kind." White House lawyers have "consistently" argued that "the president may pardon even though there has been no conviction," but it gets "tricky" when no crimes are clearly spelled out, Duke law professor H. Jefferson Powell told ABC News. "There is no entire get out of jail free card."

Mark Greenberg, a UCLA law professor tells The Washington Post that in his best reading of the Constitution, Trump doesn't even have the authority to pardon his children, since that would amount to a corrupt use of executive power. The only way that would be settled, though, is if Biden's Justice Department took him to court, Greenberg adds. "If he's never charged by a federal prosecution, then it would never come up and never be tested."

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