TIn the days that followed Jan. 6th, the Capitol attack investigation committee revealed that the lawyer who advised Donald Trump regarding how to win the 2020 election was granted a pardon.
At the committee’s third public hearing on June 16, law professor John Eastman emailed Trump’s personal lawyer, Rudy Giuliani, asking for executive clemency. “I’ve decided that I should be on the pardon list, if that is still in the works,” he wrote, according to an email obtained by the House panel.
The revelation came a week after Rep. Liz Cheney, the vice chair of the panel, alleged that “multiple” Republicans in Congress had also requested pardons from Trump before he left office for their roles in trying to block the transfer of power to Joe Biden. One lawmaker she mentioned was Rep. Scott Perry, Pennsylvania.
“As you will see, Rep. Perry contacted the White House in the weeks after Jan. 6 to seek a presidential pardon,” said Cheney, a Wyoming Republican. “Multiple other Republican congressmen also sought presidential pardons for their roles in attempting to overturn the 2020 election.” (Perry quickly denied ever seeking a pardon, calling it an “absolute, shameful, and soulless lie.”)
There has been a lot of speculation about Capitol Hill regarding presidential pardons. In a upcoming hearing, committee members will share what they know about pardon requests. According to legal experts, such requests for pardon could be taken as evidence of guilt by members seeking them. They could be asking for pardons because they fear being investigated unfairly or facing prosecution..
The disclosure of multiple Trump allies seeking pardons in the wake of the attack on the Capitol has also raised questions about the extent of a president’s pardoning authority, including whether Trump may have issued secret presidential pardons that have yet to come to light. (Answer: maybe.)
These are the facts.
What would Eastman, and other members of Congress do to be pardoned?
The reason, according to one ex-prosecutor is quite simple. “It tells us that they fear they’re going to be charged, or more generally, that they’ve engaged in conduct that’s a federal crime,” Harry Litman, a former U.S. attorney, tells TIME.
The attack has been under investigation by the Department of Justice since January 6, 2021. More than 800 have been arrested for storming Capitol and almost 300 others have pled guilty to charges that range from theft and civil disorder of government property, obstruction of a congressional proceeding, and seditious conspiracies.
Rudy Giuliani, Trump’s personal lawyer, addresses supporters in The Ellipse, Washington, D.C., January 6, 2021.
Brendan Smialowski—APF/Getty Images
No lawmakers nor government officials have been indicted so far. There is no evidence to suggest that they are the targets of an investigation by DOJ.
Untangling constitutionally protected political demonstrations from criminal behavior is one of the biggest challenges facing prosecutors.
“If the speech is likely and intended to incite imminent criminal action, then it’s not protected,” says Elie Honig, a former federal and New Jersey state prosecutor. But, he notes, there’s a difference between someone saying “We need to throw these bums out” and “Let’s go in there, smash up the windows, and beat the crap out of the first representative we see.”
“So it’s a spectrum between those two poles,” he adds. “There’s no automatic formula for that. It ultimately comes down to the prosecutor’s judgment and what the prosecutor believes would be convincing to the jury.”
According to reports, several Republican right-wing lawmakers were involved with the Jan. 6, protests. Others also voiced their disapproval at Biden’s appointment as the president of the House. Some cheered on the crowd. On Wednesday, Jan. 6, the committee releasedSurveillance footage shows Rep. Barry Loudermilk (Republican of Georgia), giving a tour through the Capitol to those later seen in video breaching it. These actions are not crimes. (Loudermillk criticized the committee for what he called a “smear campaign,” adding that “the Capitol Police already put this false accusation to bed.”)
A member of Congress would have the right to request a pardon if they knew that they had committed a crime similar to those being prosecuted by the Justice Department in connection to the Capitol attack. Margaret Love, former U.S. Pardon Attorney, says that if any legislators feel they might be subject to criminal prosecution, asking for a pardon by a compassionate president is reasonable. From 1990 to 1997, Pardon Attorney under Presidents George H.W. Bush and Bill Clinton. “Why not?” Love says of members of Congress seeking clemency. “A little insurance policy? There’s no reason why they shouldn’t have asked.”
Trump granted pardons to many close associates in his last days as president, including Roger Stone and Paul Manafort and Charles Kushner. This was the father of Jared Kushner, his son-inlaw, who is also his special advisor. In all cases Trump granted pardons to people who were already convicted or charged. If members of Congress requested a pardon from Trump, it was presumably to be a preemptive.
Is the President authorized to make preemptive pardons
It is short: Yes. “Generally speaking, the president can pardon federal crimes and people can request clemency,” Jeffrey Crouch, a government professor at American University and an expert on presidential pardon power, wrote in an email to TIME. “Even though a pardon usually comes at the end of the legal process, the president can short-circuit that process if he wants.”
Some past presidents issued blanket pardons. Jimmy Carter, for example, exonerated anyone who was caught in the Vietnam draft. It’s much rarer, though, for presidents to pardon individuals who have not yet been charged with a crime or not knowing the precise charge, if any, they were expected to face. One exception is when the former president Gerald Ford pardoned Richard Nixon in 1974 for any offenses he might have committed against America as president.
Trump himself waded into similar territory with his former National Security Adviser Michael Flynn, whom he pardoned in 2020 for lying to federal investigators but also for “any and all” possible offenses he may have committed related to Special Counsel Robert Mueller’s investigation.
Litman claims that pardons can be granted for only specific crimes. “In theory, it’s well understood that a pardon is for specified conduct,” he said. “It’s not just a get-out-of-jail-free card.”
Crouch states that Trump still had the power to grant broad pardons for some members of Congress. “President Trump could have pardoned people without spelling out exactly what offenses he was pardoning,” he says. “The president has leeway to fashion the type of mercy he is offering and how broad it can be, but recent presidents are usually specific about pardons.”
However, there are two exceptions to the power. If the pardon is part of criminal acts or the covering up of them, “Most scholars would agree that even though the president’s pardon power is broad, it can’t be used as part of a crime,” Litman says. “So it’s possible to grant a pardon in a way that is an obstruction of justice, for example.”
From right, Representative Zoe Lofgren, a Democrat of California, is joined by Representative Liz Cheney, a Republican form Wyoming, and Chairman Representative Bernie Thompson, a Democrat out of Mississippi, at a hearing held by the Select Committee to Investigate January 6th Attack in Washington, D.C., USA on Thursday, June 16, 2022.
Tom Brenner—Bloomberg/Getty Images
Is it possible that Trump could have secretly pardoned any of his comrades?
Cheney claimed that there was evidence in the primetime hearing that Cheney had suggested that the committee could have proof that Trump requested pardons for GOP lawmakers. However, some pardon lawyers and veterans prosecutors have expressed concern that Trump may not have given any.
On its website, the Justice Department lists every Trump pardon. When asked by TIME whether Trump may have issued pardons not on the list, Dena Iverson, a DOJ spokesperson responded, “All of the pardons are on the website.”
Love says that Trump could still have issued additional pardons, but never told the Justice Department.
“The president could have signed a cocktail napkin and put it away in a bottom drawer only to be revealed after he left office,” Love says. “It’s just that this has never before happened, at least since the Civil War. And after January 20, he could have called up and said, ‘Oh, by the way, Joe, look in the bottom drawer there. You’ll find a bunch of paper there.’ He could have given them to the beneficiaries of these acts of grace. A pardon doesn’t have to be published right away to be valid, or even published at all.”
It’s not the first time the prospect of Trump issuing secret pardons has come up. One bill introduced by Democrats in September 2017 would have made it mandatory for the White House that presidential pardons be publicly announced within 3 days. This legislation failed to pass because Republicans controlled both chambers of Congress. But it underscored the reality that there’s nothing forcing a president to publicly disclose every pardon they issue.
It appears that the Jan. 6 committee is preparing to demonstrate to the public how Perry, and other members in Congress sought pardons from Trump. “Everything we’re doing is documented by evidence,” Rep. Jamie Raskin, Democrat of Maryland, recently told CNN regarding the pardon requests. “Everything that we are doing is based on facts.”
TIME interviewed Raskin on Thursday to ask about Trump’s secret pardons.
Raskin began to reflect on the times Eastman was removed from Eastman’s position by asking this question. Although he was reluctant to answer, he pleaded his Fifth Amendment rights against self-incrimination 100 more times. The committee was primarily concerned with the evidence that Eastman sought a pardon and did not consider the possibility of Trump formally agreeing to it.
“We should have asked him,” Raskin says, “Do you have a pardon?”
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