Fact Check: Can Trump Pardon Daniel Penny After He’s Inaugurated?

With a New York jury still deliberating the fate of Daniel Penny, who has been charged in the death of Jordan Neely on a New York subway, some are urging President-elect Donald Trump to pardon the Marine Corps veteran when he takes office next month.

But will Trump have the power to do so when he becomes president?

The short answer is no.

Let’s quickly review the facts of the case. On May 1, 2023, Penny, 26, restrained Neely in a chokehold after he threatened to kill passengers on a New York City subway train, according to witnesses.

Police first questioned and then released Penny, but later, under public pressure, Manhattan District Attorney Alvin Braggs’s office charged the college student with second-degree manslaughter and criminally negligent homicide.

The jury deadlocked during deliberations this week, so on Friday, presiding Judge Maxwell T. Wiley dismissed the more serious manslaughter charge, which carried a sentence of up to 15 years in prison.

That ruling left the criminal negligence homicide charge still in place. There is no minimum jail sentence for that charge, but the sentence can be up to four years.

Have New York prosecutors treated Daniel Penny unfairly?

The jury is slated to return Monday to continue deliberations on the lesser offense.

Both the original charges are state crimes, being tried in a New York City courtroom.

The U.S. president would have no jurisdiction or power to grant a pardon; only the New York governor would.

The relevant provision in the U.S. Constitution, Article II, Section 2, reads that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States.”

“Offenses against the United States” means federal crimes.

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When President Joe Biden issued a pardon of his son Hunter Biden this week, it was for federal gun and tax charges, as well as other federal crimes he may have committed from 2014 to 2024.

The pardon would not cover Hunter if California chose to charge him for a state crime, such as failure to pay state taxes.

Trump faced two federal and two state prosecutions this year. Special counsel Jack Smith recently filed motions to end the federal prosecutions, knowing full well Trump’s Justice Department would have jurisdiction to do so after his inauguration.

Trump, arguably, could have pardoned himself of the federal crimes, though it would be unprecedented for a president to do so, and courts have never had to rule on the matter.

However, the soon-to-be 47th president cannot pardon himself of the state crimes in his New York business records case or his Georgia election interference case.

While Trump cannot pardon Penny, he does have the power to pardon the Jan. 6 defendants, who were all charged with federal crimes.

He has signaled a willingness to pardon most of them.

Randy DeSoto has written more than 3,000 articles for The Western Journal since he began with the company in 2015. He is a graduate of West Point and Regent University School of Law. He is the author of the book “We Hold These Truths” and screenwriter of the political documentary “I Want Your Money.”

Birthplace

Harrisburg, Pennsylvania

Nationality

American

Honors/Awards

Graduated dean’s list from West Point

Education

United States Military Academy at West Point, Regent University School of Law

Books Written

We Hold These Truths

Professional Memberships

Virginia and Pennsylvania state bars

Location

Phoenix, Arizona

Languages Spoken

English

Topics of Expertise

Politics, Entertainment, Faith

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