Trump's Broad 2020-Election Pardons: A Bid to Shield State Cases and Redefine Clemency Power

In November, President Trump issued what he described as a 'full, complete and unconditional pardon' tied to actions around the 2020 presidential election. He framed the move as part of a 'process of national reconciliation' and named 77 individuals he said should be protected from legal consequences for activities tied to the post-2020 election effort.

What the proclamation covers

The proclamation purports to cover all conduct by U.S. citizens 'in connection with the 2020 presidential election' involving the advice, creation, organization, execution, submission, support, voting, activities, participation in, or advocacy for any slate or proposed slate of presidential electors, whether or not recognized by state officials. It also extends to actions those individuals took 'to expose voting fraud and vulnerabilities.'

Who is named

The list of 77 includes notable figures who supported or advised the post-election efforts, such as Christina Bobb, John Eastman, and Rudy Giuliani. None of the people named in the proclamation are currently charged with federal crimes in connection with this conduct. Several people whose actions fit the description of the proclamation, however, face state indictments: Michigan defendants accused of participating in a 'fake electors' scheme, the Georgia prosecution that included indictments in August 2023 (from which Trump is explicitly excluded in this particular pardon), and indictments in Arizona in April 2024 naming Bobb and others.

Why this matters: federalism and the rule of law

Article II has long been interpreted to allow presidential pardons only for federal offenses. Because the conduct described in this proclamation largely underlies state prosecutions, the move raises serious federalism concerns. If a presidential pardon were treated as a shield against state prosecution, it would erode the constitutional division between federal and state authority and could undermine the ability of states to enforce their laws.

Possible motives and explanations

There are several plausible explanations for the proclamation:

Preemptive federal shield. The pardon may be designed to prevent potential federal prosecutions. That rationale is weakened by the fact that the five-year statute of limitations for many federal offenses tied to the fake electors schemes will expire soon.

Symbolic clemency. It may be chiefly symbolic: a public reward and reassurance for political allies that they remain protected. Critics say symbolic pardons can still be dangerous because they encourage lawbreaking by reducing the perceived risk of consequences.

Attempt to expand clemency reach. The most concerning possibility is that the proclamation is intended to test or stretch the pardon power's scope so that it can be invoked against state prosecutions, either by encouraging defense strategies in state court or by prompting higher-court review of the pardon power's limits.

Legal risks and likely trajectories

Challenging the conventional boundary that pardons apply only to federal offenses would require courts to reinterpret Article II or to accept a novel reading that treats certain election-related actions as 'offenses against the United States' even when prosecuted by states. That path would likely trigger litigation in state courts and ultimately federal appeals. Given recent high-profile disputes over executive power, observers warn that a favorable decision at the Supreme Court could reshape federalism and the clemency landscape.

Context and cautions

Observers note that this proclamation also fits a broader pattern in which clemency is used to reward allies and signal protection for political supporters. Former Justice Department pardon officials have warned that such use of clemency can create a dangerous precedent by suggesting that criminal acts committed in the service of a political cause will go unpunished.

Whatever the intention, the proclamation raises serious questions about the balance between executive clemency, state prosecutorial authority, and the broader rule of law. If litigants attempt to use this pardon as a shield in state court, those challenges will test longstanding assumptions about the scope of presidential power.

Author: Kimberly Wehle, professor at the University of Baltimore School of Law and author of How to Read the Constitution — and Why; What You Need to Know About Voting — and Why; and How to Think Like a Lawyer — and Why.