Will Donald Trump Pardon Edward Snowden? 'Anything Is Possible'

As President Donald Trump's time in the White House comes to an end, supporters of Edward Snowden are calling for a pardon, with members of the Republican Party publicly clashing over whether the former National Security Agency (NSA) contractor is a whistleblower or traitor.

Speculation about a reprieve for Snowden surged this week as prominent politicians and human rights groups called on Trump to drop the ongoing prosecution against him, a move that could let Snowden return to the U.S. from Russia, where he has resided under asylum since mid-2013.

Snowden faces charges under the Espionage Act for leaking documents that exposed America's vast surveillance apparatus, which was collecting massive amounts of phone and internet data of domestic civilians who were not suspected of crimes.

But is it possible that Trump will really grant Snowden clemency? Legal experts have said that while a full pardon remains unlikely, anything seems possible.

"The case is complicated: Is he a whistleblower or a traitor? Even Republicans can't agree," Jeffrey Crouch, assistant professor of politics at American University's School of Professional & Extended Studies, who specialize in pardons, told Newsweek.

"President Trump has acknowledged these two competing perspectives, but has not tipped his hand one way or the other on a possible pardon.

"I would say that Snowden is not among the more likely clemency candidates given the president's track record. He is no Rudy Giuliani or Paul Manafort, for example, but who knows? If Trump is considering granting a lot of pardons, as media reports seem to suggest, Snowden might well make the final cut. We will know by January 20."

Twitter has been ground zero of the debate this week. Matt Gaetz, representative for Florida's 1st congressional district, suggested pardoning Snowden was "the right thing to do," sparking Wyoming Congresswoman Liz Cheney to suggest that doing so would be "unconscionable" and characterizing the whistleblower as a "traitor."

Snowden personally shared posts supporting him, including from Rep. Thomas Massie (R-KY), Senator Rand Paul (R-KY) and the Libertarian Party's Justin Amash.

And on Tuesday he responded to Senator Lindsey Graham who claimed that Snowden was "not a victim" and had "American blood on his hands" by leaking secrets. "You are suggesting President Donald Trump pardon a traitor," Graham said.

Snowden hit back: "In seven years, no one has named a single American who died as a result of revealing the unlawful program of domestic mass surveillance—because it didn't happen. But exposing that crime did reform American laws—and strengthen our rights. When a crooked politician calls me traitor, ask yourself: who did I betray?"

In seven years, no one has named a single American who died as a result of revealing the unlawful program of domestic mass surveillance—because it didn't happen. But exposing that crime did reform American laws—and strengthen our rights. https://t.co/3nLhObCDNv

— Edward Snowden (@Snowden) December 16, 2020

Ultimately, while legal experts were unable to speak to Trump's own thought process on the matter, they noted that Trump's disdain for Obama-era politics and clashes with the intelligence community mean that it's no longer an unthinkable proposition.

"The charges filed against Snowden are substantial. The government contends that he stole and disseminated stores of highly classified documents containing sensitive material, thereby placing the nation's security operations at risk," Miriam Baer, professor of law at Brooklyn Law School, told Newsweek via email on Tuesday.

"This kind of behavior ordinarily would not come close to meriting consideration for a pardon or commutation. But given Trump's negative feelings for the Department of Justice, intelligence community and so-called 'deep state,' anything is possible.

"Moreover, a pardon or commutation may look desirable to Trump if he perceives the case against Snowden as something that belongs to the Obama administration."

"If a pardon for Snowden constitutes yet another reversal of an Obama administration decision or policy, Trump will do it and he will do it enthusiastically, notwithstanding the optics or pushback within his own party," the legal academic added.

Multiple experts told Newsweek that Snowden living under asylum in Russia would have no bearing on the ability to be granted a presidential pardon by Trump.

"A pardon for Snowden at this point would certainly lean into the general view that Trump has been inordinately solicitous of Russian interests," noted Keith Whittington, professor of politics in the Department of Politics at Princeton University.

Prof. Whittington noted the president is "free to pardon individuals of federal criminal offenses even if they have fled the jurisdiction or sought to avoid trial."

Last September, Snowden said he wanted to return to the U.S., but would only do so if he was assured that he could face a fair trial, which he thought was unlikely.

Jens David Ohlin, vice dean and Professor of Law at Cornell Law School, said that the most significant impact of a pardon for Snowden would be that it would let him travel back to the U.S. without "facing fear of criminal prosecution" for leaking.

"Trump's calculation here isn't hard to understand. On the one hand, the intelligence community would be incensed by the pardon," Prof. Ohlin explained.

"On the other hand, Trump has shown a marked antipathy to the intelligence community going back four years to their assessment that Russia interfered in the 2016 election. That decision outraged Trump. So this could be a final way for Trump to antagonize the intelligence community on his way out the door," the professor added.

The suggestion that Trump could use clemency for Snowden as a final "parting shot" to the intelligence community or former administration was echoed by Jackie Singh, who was most recently lead cybersecurity expert on the Joe Biden campaign.

"If Trump is considering exercising his outgoing authority to issue a pardon for Snowden as a parting shot to the national security establishment he will need to know if the political calculus on this issue will improve his chances in 2024," Singh, who is also the founder of cyber consultancy Spyglass Security, told Newsweek.

"While Edward Snowden made many mistakes on his journey as a whistleblower, a U.S. federal court ruled on September 2, 2020, seven years later, that the U.S. intelligence's mass surveillance program, exposed by the data he stole, was illegal and possibly even unconstitutional under the Fourth Amendment.

"While Snowden's illegal bulk disclosures certainly harmed national security, the rights of Americans were being violated at a breathtaking scope and scale.

"His actions then and since appear to show clear—albeit clumsy—intent to disclose these activities to the public, and not specifically to harm the United States. Trump has the pardon power and has been using it, in line with the behavior of prior presidents, to make potentially unpopular decisions in the final days of their presidency."

Edward Snowden
Edward Snowden speaks remotely WIRED25 Festival: WIRED Celebrates 25th Anniversary – Day 2 on October 14, 2018 in San Francisco, California. Phillip Faraone/WIRED25/Getty