Updated: November 19, 2020 11:20:41 am
With Donald Trump’s presidency entering its final weeks, the former businessman and television personality is expected to make full use of the outgoing presidential tradition of granting pardons. Some fear that the US President will wield his expansive power to pardon some of his closest aides, family members and maybe even himself.
Trump — who faces a host of legal challenges, including multiple lawsuits and fraud allegations — will no longer have the extensive legal protections of the presidency once he formally exits the White House on January 20.
Possibly pre-empting these legal issues, Trump has been asking aides whether he can self-pardon since 2017, according to a CNN report. In fact, an official told the news network that Trump was “obsessed with the power of pardons”.
How does the presidential pardon work?
All modern presidents of the United States have the constitutional right to pardon or commute the sentence of people who have broken federal laws. The US’ Supreme Court had held that this power is “granted without limit” and cannot be restricted by Congress.
The President has the power to pardon individuals for nearly any crime committed in the country. He is not answerable for his pardons, and does not even have to provide a reason for issuing one. But there are a few limitations.
For instance, the President cannot issue a pardon in the case of impeachment of officials. Article II, Section 2 of the United States’ Constitution says that all presidents “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment”.
Further, the power only applies to federal crimes and not state crimes. Therefore, even if he were somehow pardoned, President Trump would still have to face state investigations into his finances and business dealings.
But given that the president’s pardoning powers are very broad, Trump — much like many presidents before him — can pardon his friends and family without issue. This happened earlier this year, when he commuted the prison sentence of his long-time ally Roger Stone, who was convicted of lying to Congress and witness tampering in 2019.
But Trump is not the first president to issue such self-serving pardons. On his final day in office, former President Bill Clinton pardoned his own half-brother Roger Clinton for drug charges after he had served the entire sentence more than a decade earlier. Former President George HW Bush pardoned as many as six former officials for their role in the Iran-Contra scandal, in which Bush himself was suspected of criminal involvement. 📣 Click to follow Express Explained on Telegram
So, can Trump pardon himself?
Since no president has ever tried to self-pardon in the country’s history, the courts are yet to weigh in on the legality of the issue in question. Despite this, Trump has insisted over the years that he has the “absolute right” to pardon himself.
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
According to a report by the Washington Post, Trump’s legal team even looked into the legalities of the president pardoning himself and his family in case something particularly incriminating were to emerge from the Russia probe headed by Special Counsel Robert Mueller in 2017.
Experts argue that self-pardoning is unconstitutional as it violates the basic principle that no one should be the judge in his or her own case. A 1974 Justice Department Office of Legal Counsel memo echoed this sentiment: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”
The memorandum was issued right before former President Richard Nixon resigned after facing impeachment proceedings for his role in the Watergate scandal. His successor, and former Vice President, Gerald Ford, later pardoned him for any federal crimes he may have committed while in office.
Can Vice President Mike Pence pardon Trump?
While the justice department said that Nixon could not pardon himself, it also laid down an alternative that President Trump, too, could opt for — the president could temporarily step down, be granted a pardon by his Vice President and then regain power.
The 25th amendment of the US constitution allows an incapacitated president to temporarily resign and hand over the reins to the Vice President, who will act on his behalf until he returns to the office.
There is a remote possibility that Trump could resign before Inauguration Day after brokering a corrupt deal with Vice President Pence. Pence would then become the 46th president and could use his presidential power to pardon Trump.
But such an agreement could land Trump in more trouble. For starters, it would violate the US’ federal bribery statute, which states that a public official can face criminal charges if he or she “corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity” in return for “being influenced in the performance of any official act”. A deal like this would also appear to be like a blatant admission of guilt.
Would a presidential pardon protect Trump completely?
No, it wouldn’t. Since a presidential pardon only applies for federal crimes, it will not be able to protect Trump and the Trump Organisation from the criminal investigation which is being conducted by the Manhattan district attorney, who is a state prosecutor. The probe is looking into possible bank and insurance fraud by Trump and his companies.
But a presidential pardon will erase a criminal conviction for any possible federal crime. Legal experts say that it makes most sense for Trump to opt for this route as a defence if convicted of a federal crime.
What are the presidential pardons Trump has already issued?
President Trump has issued a slew of controversial presidential pardons since being elected. In 2017, he pardoned former Maricopa County Sheriff Joe Arpaio, who was found guilty of being in contempt of court for ignoring a federal judge’s order to stop arresting immigrants solely based on the suspicion that they were residing in the US illegally.
He has also pardoned people like right wing commentator and campaign fraudster Dinesh D’Souza, and Michael Milken, a financier convicted of securities fraud.
But not all of his pardons were problematic. Some were even widely celebrated. Earlier this year, he granted a full pardon to Alice Marie Johnson, who received a life sentence for a first-time drug offences and whose concerns were first raised by businesswoman and reality TV star Kim Kardashian West.
In 2018, he issued a posthumous pardon to boxer Jack Johnson, who was jailed over a hundred years ago for violating the racist ‘White Slave Traffic Act’ by crossing state lines with a white woman.
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