With six weeks remaining until he leaves the White House, US President Donald Trump is considering preemptively pardoning his close ally and lawyer Rudy Guiliani, three of his children – Donald Trump Jr., Eric Trump and Ivanka Trump – and his son-in-law Jared Kushner.
The US President’s powers to pardon
The US President has the constitutional right to pardon or commute sentences related to federal crimes. The US Supreme Court has held that this power is “granted without limit” and cannot be restricted by Congress.
Clemency is a broad executive power, and is discretionary — meaning the President is not answerable for his pardons, and does not have to provide a reason for issuing one. There is also no rule preventing the grant of pardons that could raise the appearance of a conflict of interest.
But there are a few limitations. For instance, Article II, Section 2 of the US Constitution says 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 — those pardoned by the President can still be tried under the laws of individual states.
So, how is a “preemptive pardon” different?
Unlike regular pardons, which extend to those who have already been charged or convicted, a preemptive or prospective pardon would apply to persons who have already committed criminal acts but are yet to be charged for them.
Such a pardon is permitted under the US law, as affirmed by the country’s Supreme Court in its 1866 decision ‘Ex parte Garland’, which declared that the pardon power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.”
Also, like a regular pardon, a preemptive pardon would cover only federal offences, and would not provide cover from prosecutions under state laws.
However, since the exercise of this power has been rare, legal experts are divided as to whether or not the President would have to describe in detail the offences for which a prospective pardon is being issued. While granting regular pardons, the President is obliged to specify for what crimes the clemency is being extended.
So, why is Trump considering granting these special pardons at all?
As per an NYT report, the key reason why Trump is considering this rare type of clemency for close allies and family members is because of his fear that a Biden administration would bring charges against them once it comes to power on January 20, 2021.
Since neither of those reportedly being considered for a prospective pardon–Trump’s three eldest children, Kushner, and Giuliani– have been charged, it is so far unclear for what crimes precisely those pardons would be granted. However, media reports have speculated about some potential criminal acts that these five may have committed.
Trump’s eldest child and namesake, Donald Trump Jr., was under the scanner in the Russian election interference probe carried out by Special Counsel Robert Mueller. He was never charged, but was reportedly being investigated for his contacts with Russians who had offered damaging information about then-Democratic nominee Hillary Clinton in the run-up to the 2016 election.
Jared Kushner, Trump’s son-in-law and close adviser, was given a high-level security clearance by the President, despite him providing false information to federal authorities about his foreign contacts.
Rudy Giuliani, the former New York City mayor and ardent Trump supporter, was reportedly being investigated earlier this year by federal prosecutors in Manhattan for his role in the Ukraine scandal– which had led to the impeachment of President Trump by the US House of Representatives in December 2019.
The possible crimes for which a pardon may be granted to the other two Trump children–Eric and Ivanka– were still unclear, reports said. 📣 Follow Express Explained on Telegram
And, have such pardons been granted in the past?
Yes, at rare but pivotal moments.
The first such clemency came in the 1790s during the tenure of the first US President, George Washington, when the American founding leader granted prospective pardons to the instigators of the Whiskey uprising– an armed rebellion started by farmers and brewers in Pennsylvania against the payment of a so-called “Whiskey tax” to the US government. Washington granted clemency before charges of treason had been pressed, intending to steer the new republic clear of civil strife during its nascent years.
The second widely cited example came almost two centuries later, when President Richard Nixon was pardoned in 1974 by his successor and fellow Republican Gerald Ford, who absolved the former of all acts he had taken during his tenure, thus covering his role in the Watergate Scandal. Although the move was highly criticised, the argument offered by Ford then was that the country should not have to witness a former President being prosecuted in federal court.
The third preemptive pardon arrived three years later when President Jimmy Carter, a Democrat, declared an unconditional amnesty to all the Vietnam War draft evaders, numbering thousands, on his second day in office in 1977, fulfilling a campaign promise to heal the nation’s wounds over the polarising conflict.
The use of this power by Trump to save his close allies, however, would stand in contrast with previous examples, where the stated objective was national unification. Experts say that prospective pardons for Trump’s family members and allies, which only benefit the President personally, could lead to a political backlash against Republicans.
Can Trump preemptively pardon 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.
Most recently, it was reported that the US Justice Department is investigating an alleged bribery scheme that was directing money to officials in the White House in exchange for presidential pardons, and it had been suggested that President Trump is considering abusing his clemency power by pardoning members of his family and his closest aides during his final days in the White House.
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
Not unexpectedly, Trump has entertained the idea of issuing a prospective pardon to himself, and has publicly said that he has the “absolute right” to do so.
However, 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.”
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