Can Biden pardon Trump? No, that power only applies to federal offenses | Fact check

Gabrielle Settles, USA TODAY

The claim: Post implies Biden can pardon Trump

In a May 30 Facebook post (direct link, archive link), “Shark Tank” entrepreneur Kevin O’Leary shared a video of himself on Fox News Network’s “The Five” discussing the New York hush money trial against former President Donald Trump and President Joe Biden.

“What Biden should do is pardon Trump the moment he gets convicted of any of those charges,” O’Leary wrote in the caption of the video.

Some users appeared to believe Biden could pardon Trump.

"He can only help himself by pardoning Trump of any wrongdoing & try to be presidential & win over some brownie points with the undecided," wrote one user.

Another wrote, "If Biden were so inclined to pardon Trump for his non crimes, everyone would see through it due to his constant lie filled rants regarding Trump."

Conservative pundit Bill O’Reilly shared a similar take that day in a radio interview and on Facebook, where he posted, "Biden could immediately perform an act of great public service by issuing a full pardon to Donald Trump."

Fact check roundup: Debunking false claims about Donald Trump's conviction in hush money trial

More from the Fact-Check Team: How we pick and research claims | Email newsletter | Facebook page

Our rating: Missing context

The implied claim is wrong. Biden cannot pardon Trump because it is a state-level case in New York. Presidents only have the power to pardon federal offenses.

US Constitution lays out presidential pardon powers

Trump was convicted May 30 of all 34 counts for falsifying business records to cover up hush money payments to porn star Stormy Daniels ahead of the 2016 election, making him the first former U.S. president to be convicted of a crime. Trump is also the presumptive Republican nominee in the 2024 election.

The U.S. Constitution states presidents can only grant clemency for “offenses against the United States.” That means a president’s authority is limited to federal offenses, the Department of Justice explains in an FAQ on its website.

"The president’s authority to grant clemency is limited to federal offenses and offenses prosecuted by the United States Attorney for the District of Columbia in the name of the United States in the D.C. Superior Court," the site says. "An offense that violates a state law is not an offense against the United States. A person who wishes to seek a pardon or a commutation of sentence for a state offense should contact the authorities of the state in which the conviction occurred."

Trump’s hush money case was prosecuted by Manhattan District Attorney Alvin Bragg, Jr. and was tried in the New York State Supreme Court – which means it would be outside Biden's authority to grant a pardon even if he wanted to.

John Moscow, a New York lawyer who formerly worked in the Manhattan District Attorney’s office, confirmed to USA TODAY that Trump can't get a presidential pardon.

“The United States is a sovereign, but so too is each state. The president can pardon a violation of federal law but not a violation of state law,” Moscow said. “The governor of New York has the power to pardon a person convicted in and by the state.”

Fact check: How long will Trump go to prison for? Not 187 years like he claims

Trump will be sentenced on July 11, a date that falls between his first presidential debate against Biden and the Republican National Convention where he is slated to officially become the party’s nominee. He could go to prison, but it's not clear if that will happen.

USA TODAY reached out to O’Leary and O’Reilly but did not receive an immediate response from either.

Our fact-check sources:

  • John Moscow, May 31, Email exchange and phone interview with USA TODAY

  • Annotated U.S. Constitution, accessed May 31, ArtII.S2.C1.3.1 Overview of Pardon Power

  • U.S. Department of Justice Office of the Pardon Attorney, accessed May 31, Frequently Asked Questions

  • Manhattan District Attorney's Office, April 4, 2023, District Attorney Bragg Announces 34-Count Felony Indictment of Former President Donald J. Trump

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This article originally appeared on USA TODAY: Biden can't pardon Trump since it's a state conviction | Fact check

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