The lawyer who advised former President Donald Trump on how to overturn the 2020 election requested a pardon from him in the days after Jan. 6, the committee investigating the Capitol attack revealed on Thursday.
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. She only mentioned one lawmaker by name: Rep. Scott Perry of 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.”)
The mentions of presidential pardons have set off a whirlwind of speculation on Capitol Hill about which members of Congress might have sought pardons and why. Committee members plan to flesh out what they have learned about the pardon requests in an upcoming hearing. Legal experts say such pardon requests could be construed as demonstrating a consciousness of guilt or recognition that they might have committed a crime by the members who sought them. Less damningly, their entreaties could also reflect concern that they feared unfairly becoming targets of investigation or 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.)
Here is what you need to know.
Why would Eastman and members of Congress seek pardons?
According to one former prosecutor, the reason is 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.
Since Jan. 6, 2021, the Department of Justice has been conducting its own investigation of the attack. Thus far, more than 800 people have been charged for storming the Capitol, and nearly 300 have entered guilty pleas on charges ranging from civil disorder and theft of government property to obstruction of an official congressional proceeding and seditious conspiracy.
So far, no lawmakers or government officials have been charged, nor is there evidence that any are targets of the DOJ investigation.
One of the challenges prosecutors face is untangling criminal behavior from constitutionally protected political protests.
“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.”
Several right-wing Republican lawmakers were reportedly involved in the planning of Jan. 6 protests. Several also vociferously challenged the certification of Biden as president on the House floor. Others cheered the crowd that day. On Wednesday, the Jan. 6 committee released surveillance footage of Rep. Barry Loudermilk, Republican of Georgia, giving a tour of the building to people later spotted in videos breaching the Capitol. None of those actions is a crime. (Loudermillk criticized the committee for what he called a “smear campaign,” adding that “the Capitol Police already put this false accusation to bed.”)
If a member of Congress did knowingly commit a crime like those the Justice Department is prosecuting related to the Capitol attack, they would of course have a reason to ask for a pardon. But from a practical standpoint, if any lawmakers thought they could be at risk of criminal prosecution, requesting a pardon from a sympathetic president is not necessarily unreasonable, says Margaret Love, former U.S. Pardon Attorney from 1990 to 1997 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.”
In his final days in office, Trump did pardon many people close to him, such as Steve Bannon, Roger Stone, Paul Manafort, and Charles Kushner, the father of his son-in-law and special adviser Jared Kushner. But in all of those cases, Trump pardoned individuals who had already been charged with or convicted of crimes. If any members of Congress asked Trump for a presidential pardon, they were presumably asking for a preemptive one.
Did the President have the authority to issue preemptive pardons?
The short answer is 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.”
Past presidents have issued blanket pardons, such as Jimmy Carter who exonerated everyone who dodged 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. A rare exception was when former President Gerald Ford pardoned his predecessor, Richard Nixon, in 1974 for whatever crimes he may have committed against the United States 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.
For the most part, however, pardons are issued for specific offenses, Litman argues. “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.”
Nonetheless, Trump had the authority to issue very broad pardons to some of his allies in Congress, Crouch says. “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.”
There are two glaring exceptions, though, to that power: if the pardon itself was part of a criminal act or the cover up of one. “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.”
Could Trump have issued any pardons in secret?
In the June 9 primetime hearing, Cheney suggested that the committee had evidence that GOP members of Congress requested pardons from Trump. Yet some veteran prosecutors and pardon lawyers say that has left them wondering whether the president might have issued any in secret.
The Justice Department has a page on its website listing every pardon it knows of that was issued by Trump. 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, however, says Trump still could have granted additional pardons and never informed the Justice Department about them.
“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. In September 2017, a Democratic congressman introduced a bill that would have forced the White House to publicly announce any presidential pardons within three days of their being granted. With Republicans then in control of both houses of Congress, the legislation went nowhere. But it underscored the reality that there’s nothing forcing a president to publicly disclose every pardon they issue.
The Jan. 6 committee appears to be preparing to show the public how Perry and other members of Congress at the very least 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.”
When asked by TIME on Thursday about the possibility that Trump may have issued pardons in secret, Raskin said the committee had not considered it.
The question prompted Raskin to think back to when the committee deposed Eastman. He was not particularly forthcoming, pleading his Fifth Amendment right against self-incrimination 100 times. But the committee had focused on the paper trail showing Eastman seeking a pardon, and not the possibility that Trump may have agreed to the request without ever formally announcing it.
“We should have asked him,” Raskin says, “Do you have a pardon?”