Cass R. Sunstein, Columnist

Not Convicted or Indicted? Trump Can Pardon You Anyway

The Supreme Court authorized preemptive presidential pardons in the 19th century. But there’s an important caveat.

January 11, 2021 at 1:30 PM UTC

Cass R. Sunstein is a former Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

Conviction? No. Pardon? Yes.
Source: Newsmakers/National Archives

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It’s been widely reported that President Donald Trump is considering granting a batch of pardons, possibly on his last day in office. Some of the people named as likely beneficiaries have not been convicted or even indicted for any crime.

That raises a question: Does the president have the power to issue a preemptive pardon, one that would protect someone from prosecution in the future? Really?