Can Trump forgive himself?
As he prepares to end a tumultuous four-year term as president of the United States and faces a possible trial in the Senate, Donald Trump is considering the possibility of pardoning himself, a source familiar with the matter said. But questions have been raised about whether the president's broad executive powers, stemming from the US Constitution, allow him to make such a decision.
The US Department of Justice has previously said the Constitution does not allow a president still in office to be impeached, but a former president enjoys no such protection.
House Speaker Nancy Pelosi introduces the articles of impeachment against US President Donald Trump.
These are the potential constitutional problems that could arise if a president were to pardon himself, and why doing so would not legally protect Trump after his presidential term ends.
Is self-pardon constitutional?
There is no definitive answer to this question, and the U.S. Constitution does not explicitly address this possibility. No president has attempted to pardon himself before, so the courts have not addressed the issue. In 2018, Trump tweeted that he was “absolutely right” to pardon himself. A White House spokesman declined to comment on the possibility of the president pardoning himself.
Many scholars say that pardoning oneself would be unconstitutional because it violates the basic principle that no one should be judged in his or her own case.
Others argue that the pardon itself is constitutional because the pardon power is broadly worded in the Constitution. Historical texts have made it clear that the US founders discussed the issue but decided not to include in the Constitution explicit limitations on the pardon power.
The Constitution states that the president "shall have the power to grant punitive measures and pardons for criminal offenses against the United States, except in cases where the process of trial against the president is initiated", which is known by the term "impeachment". The word "pardon" means a president's power is limited to pardon other people, says University of Missouri law professor Frank Bowman.
The last time the Justice Department took up this question was in 1974, when a memo was sent by a lawyer and then the question was concluded that it was unconstitutional for then US President Richard Nixon to pardon himself. Nixon resigned the same year because of the scandal known as Watergate.
"According to the basic rule, no one can become a judge for his own case, the president cannot pardon himself", said the lawyer of the US Department of Justice.
But the document argued that Nixon could be temporarily removed from office and his vice president pardon him and then Nixon return to the Oval Office. However, this 1974 memo has no legal authority.
Presidential pardons apply only to federal crimes, not state crimes.
But how would the court deal with the issue if the president pardoned himself?
Under US law, courts do not issue advisory opinions. For a court to rule on the validity of the self-pardon, the Justice Department would have to charge Trump with a crime and then he could use the presidential pardon to defend himself, legal experts say.
A self-pardon could only encourage prosecutors to prosecute Trump, as such an act by the president would imply he is hiding something, said law professor Jessica Levinson, who teaches at Loyola Law School in California.
Why would Trump pardon himself?
He could face criminal charges on many counts.
Some legal experts point to a call Trump made on Jan. 2 in which he pressed the chief election official in Georgia to "find" enough votes to overturn the Nov. 3 election result to Joe Biden. They say this call may violate federal and state law.
The Georgia state law against “soliciting to commit election fraud” states that it is illegal for a person to knowingly solicit, order or attempt to persuade a person to engage in election fraud. Meanwhile, another federal law states that it is illegal to attempt to "deprive or deceive" people from "a fair and impartial election process."
President Trump will likely argue that he was simply expressing his personal opinion and did not order the Georgia election official to interfere in the election.
Some lawyers say Trump could face legal action because of the speech he gave to supporters on Jan. 6, shortly before violent protesters stormed the Capitol in an attempt to block the certification of Biden's victory. Five people were killed in this violent protest. Trump could defend himself by saying that in his speech he was simply asserting that free speech is protected by the Constitution, several other lawyers said.
Trump could also be targeted by prosecutors for violating other state laws. Manhattan District Attorney Cyrus Vance has already launched an investigation into possible tax fraud by Trump businesses, although no indictments have been filed so far. Trump has called this investigation a politically motivated process.
Precedent of pardoning a president
There are precedents for a president to be pardoned. Nixon received a “full and unconditional pardon” from his successor, Gerald Ford. This presidential pardon cleared Nixon “of any crimes he may have committed against the United States while he was president.”
The US Supreme Court has never addressed the issue of whether a full pardon is legal. Some scholars have argued that the US founders intended the presidential pardon to be specific and that they meant there was a limitation on the matter.
Can there be preemptive forgiveness?
A presidential pardon cannot be made for actions that may occur in the future, but the pardon can be preliminary in the sense that it can cover actions that have not yet resulted in legal proceedings.
Nixon's pardon is one example of this, and there are others. In 1977, President Jimmy Carter provisionally pardoned thousands of people who had not responded to the call to participate in the Vietnam War. (REL)
