Pardons at the Polls: The 2024 Election and Youth Voters’ Perspectives on Presidential Power
Graphics by Madeline Barber
“The President can grant a pardon to a person who was convicted in a US District Court, the Superior Court of the District of Columbia, or a military court martial.”
The United States Constitution has left us with a plethora of unanswered questions, undefined issues, and opportunities for countless interpretations. However, there is one particular uncertainty that has plagued the nation for decades but has become particularly relevant in recent years, and that is the question of whether a U.S. president can pardon themself. With the 2024 presidential election looming on the horizon, one of the most imposing questions left lingering in the minds of many is the potential reality of Trump’s dangerous flirtation with the presidential pardon. Not only has he asserted that one of his first acts as president if he were re-elected would be to pardon the January 6 insurrectionists, but he has also declined to fully rule out a self-pardon on several occasions. The moral and legal murkiness of this issue presents a very interesting topic to be discussed, and I intend to investigate how young voters are reacting to this issue and how it may affect, if at all, their votes in November.
Many Constitutional scholars have debated what exactly the language within the Constitution allows for in regard to a presidential self-pardon. Although the language does explicitly permit Trump to pardon those convicted of a federal crime, as is the case with many of the insurrectionists, I am intrigued about how young voters feel about these questions. UVa has an especially politically active student body full of voters spanning the entirety of the political spectrum. I anticipate that those who are steadfast Democrats will disagree with both the possibility of a Trump self-pardon and a pardon of the insurrectionists. However, I believe there will be less of a congruous response among the Republican students since the topic of the presidential pardon is more salient for them in the lead-up to this election. I believe that there will be a portion of younger Republican voters who would be against pardons for the insurrectionists based on the tendency that this voting bloc generally has to support the results of the 2020 election.
The Constitution specifies in Article II, Section 2, Clause 1: “The President…shall have the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The President may grant a pardon to anyone convicted of a federal crime in a U.S. District Court, the Superior Court of the District of Columbia, or a military court-martial while using whichever standards he wants. In addition to the power to pardon, he is able to commute any sentence imposed by a federal court of the District of Columbia. Although this power is immense, the pardoning ability of the president is limited in certain instances. The pardoning power does not extend to those convicted of state crimes, and the president cannot commute sentences received for state crimes. The intention behind the pardon is for presidents to be able to utilize it as a tool of justice and to further the well-being of the public. A self-pardon then, in this case, would contradict the specification that it must be executed to serve the public’s interest. The Department of Justice also concluded that “the President cannot pardon himself” by reason of the due process clause originally posited by James Madison, which states that “[n]o man is allowed to be a judge in his own case, because his interest would certainly bias his judgment.” This clause is often invoked by the Supreme Court in cases involving public officials to prevent conflicts of interest. Unfortunately, Constitutional and judicial precedents fail to define the explicit boundaries of the presidential self-pardon. Constitutional scholars disagree on various levels about what the Constitution implies. John Yoo, a law professor and former legal adviser to President George W. Bush, argues that the language itself within the document allows for a self-pardon, but the president should not pardon himself. Conversely, Frank Bowman, a constitutional and criminal law scholar, avers that the language within the Constitution implies that one person cannot be both the grantor of the pardon and its grantee. With regard to the January 6 insurrectionists, the U.S. Department of Justice has secured almost 900 convictions, with 350 cases still pending. Trump has consistently asserted the president’s “complete power to pardon,” and told several news outlets in September 2023 that he would “certainly look at” pardoning Enrique Tarrio, the former leader of the Proud Boys, who was sentenced to 22 years in prison for the insurrection. In addition to his remarks on the possibility of pardoning the insurrectionists, Trump has remained steadfast in his support for them by referring to them as “political prisoners,” as well as playing a recording of the jailed insurrectionists singing “The Star-Spangled Banner” through loudspeakers at his rallies. It appears as though Trump’s intentions regarding the pardon of these rioters are clear.
This question of whether Trump has the capacity to pardon himself presents such a dilemma because this situation is entirely unprecedented. No president before Trump has ever been charged with a crime. Facing 91 criminal counts in four distinct prosecutions, Donald Trump has certainly set quite the precedent. He faces four felony counts for his alleged efforts to overturn the 2020 election in a federal election interference case, 13 felony counts for his alleged election interference in the state of Georgia, 40 felony counts in Florida federal court for allegedly hoarding classified documents after leaving office, and 34 felony counts connected to his alleged hush money payments to an adult film star in New York state court. Largely inspired by Trump’s actions and legal woes, Congressman Steve Cohen (TN-9) introduced in May 2023 a Constitutional amendment to “prohibit a president from pardoning himself or herself, family members, current or former members of a president’s administration and paid members of his or her campaign staff.” This amendment failed to pass in Congress, which Cohen lamented, saying, “In my opinion, the president does not have the power now to pardon him or herself, but they shouldn’t. That would put one person absolutely above the law.” Had this amendment passed, this topic would no longer be an issue. I believe that this amendment likely failed due to the hostile partisan nature of today’s Congress. Although it may have been inspired by the actions of a certain former president and presidential candidate, it nonetheless would have saved future generations from the painful uncertainty of situations like this one, which could become ever more apparent if our political divide continues to intensify at its current pace.
To investigate this issue among young voters, I intended to interview peers of mine at UVa. The weight of the youth vote in this election is particularly great, and I believe that it is worthy to explore the way that people within the youth voting bloc (ages 18-29) are feeling about the topic of presidential pardons. I’m expecting to receive a lot of beliefs that disagree more with the idea of a self-pardon, but I also intend to pose the question about Trump’s possibility of pardoning others, particularly the January 6 insurrectionists. There is certainly a moral debate surrounding this as well, but the Constitution does technically permit Trump to pardon these people if he wishes, contingent upon the fact that he is pardoning those convicted of a federal crime. Therefore, I think that interviewing young voters about Trump’s plans to pardon the January 6 “hostages”, as he has continually referred to them, will be valuable because it will evoke more differences of opinion.
I interviewed seven students—two men and five women—ranging in age from 20-22. I asked each of them four questions:
How do you identify politically?
Are you already certain of who you will vote for this November (if you are voting)?
What are your thoughts on the president’s power to pardon, particularly himself?
If Donald Trump were elected, what do you think about his promises to pardon the January 6 insurrectionists convicted of a federal crime “on his first day in office?”
Responses to the first question varied, with one student identifying as “Republican,” one student identifying herself as “very moderate Republican,” two students identifying themselves as a “centrist/moderate,” and three students identifying as “liberal Democrats.” In order to provide some more clarity, I had them define their political identity on a scale from 1-10, imagining the progressive left as 1 and the steadfast conservative as 10. The Republican placed herself at 7.5. The “moderate Republican” put herself around a 6.5, the “centrist/moderates” were both solid 5’s, and the three “liberal” students placed themselves at 1.5, 2.5, and 2.5. Two of the six students do not know who they will vote for in November. Interestingly enough, despite these seemingly significant differences in political ideology, all six of the students gave essentially a unanimous response to the final two questions. The Republican student believes that the president, generally speaking, should not be able to pardon himself/herself. When asked about the possibility of Trump pardoning the January 6 insurrectionists if re-elected, this student said, “I do not believe he should do this as it ties [Trump] closer to those individuals and potentially poses him as more of an instigator of the situation than he truly was…There are wrongs on all sides and individuals should have to live with their decisions and mistakes they have made.” The “very moderate Republican” stated, “The president should not be able to pardon himself, especially [because] there are so many checks and balances in place and there should be several more rules from Congress in place to regulate these pardons. There shouldn’t be a leader in office who has criminal charges or even allegations against them.” When asked about the January 6 insurrectionists, this student said, “I believe that he very likely would pardon the insurrectionists because he has proven that these people are part of his militia and some are sort of his disciples, and he encouraged the January 6 insurrection…[He] has supported them and that makes me think that he really would pardon those insurrectionists, which would really just contribute to the increased partisan divide in the U.S., as well as the divide in the Republican party itself.” The three students who identify as “liberal Democrats” essentially all echoed the same remarks, believing that although the Constitution may not technically prevent the President from pardoning himself, it would be morally unsound. One stated that it is a “conflict of interest, as we would normally recognize in standard legal proceedings.” Another stated that “it allows too much agency on the part of the president.” The centrist and moderates both agreed that the president should not be allowed to pardon himself, with one saying, “We’re all biased to want to benefit ourselves and portray ourselves as positively as possible, so although we would all want to pardon ourselves, that’s not a decision that [the president] should be able to make for [himself/herself.]” Once again, all six students concurred that the president is legally able to pardon the January 6 insurrectionists, but they believed that it would not be an “appropriate use of the president's pardoning power,” as one centrist succinctly put it. One of the liberal Democrats remarked that “it would be completely wrong, and that would cause a lot of disruption and turmoil in our country because those people disregarded the Constitution when they launched that attack and people died as a result. They should be facing their full sentences.”
I was pleasantly surprised by the fundamental unanimous responses of the students, despite the political variation. Disproving my initial hypothesis that there would be more dissent among Republican/centrist voters, I seemed to underestimate the value of democracy among today’s youth. The Republican student, for example, is still deciding between two candidates but certainly will be voting Republican this November. Her vote lies with the Republican party, yet her support for preserving democracy in the face of those who seek to dismantle it, like the insurrectionists, holds strong. Also, the general consensus I received from this small group of students is a moral aversion to a presidential self-pardon, which feels promising considering the seemingly ever-widening chasm between America’s political parties. This topic is not necessarily something that necessitates a recommendation one way or the other, and we must remember that this debate is all contingent upon the fact that Trump is elected in 2024. Otherwise, this point is moot. Since Joe Biden is not facing any sort of charges, he has no need to enact the self-pardon and certainly would not be in favor of pardoning the January 6 insurrectionists. The recommendation I can make, however, is for Biden’s campaign to capitalize on youth voters’ presumptive disagreement with a self-pardon and with a pardon for the rioters. For example, it is possible that the two undecided students whom I interviewed could perhaps be persuaded to vote for Biden if he condemned Trump’s pardoning intentions, as they already denounced Trump’s objective to pardon the insurrectionists. By situating this perilous exercise of the presidential pardon as emblematic of the beginning of the end of American democracy, the Biden team could potentially influence youth voters who are averse to this danger. In other words, connecting this threatening use of the presidential pardon to the voter’s obligation to uphold democracy holds the power to persuade undecideds. In these last few months leading up to the election, Biden’s campaign must exploit the danger of Trump’s intention to pardon himself and the January 6th rioters in order to appeal to the youth voters that hold some of the most significant power this election.