The president of the United States, Donald Trump, could issue a series of pardons during his last days in power. Trump has granted clemency to his supporters before, most notably earlier this year when he commuted the criminal sentence of Roger Stone, who was sentenced to prison after being found guilty of lying under oath to lawmakers.
In 2018, Trump even said he had an “absolute right” to forgive himself, a claim that many scholars of constitutional law dispute.
Here’s an overview of Trump’s forgiving power, which is overwhelming but not absolute.
ARE THERE LIMITS TO THE POWER OF TRUMP’S FORGIVENESS?
The power of forgiveness, which comes from the Constitution of the United States, is one of the most extensive available to a president. The nation’s founders saw the power of forgiveness as a way to show mercy and serve the public good. While pardons are generally granted to individuals who have been prosecuted, pardons can cover conduct that has not yet led to legal proceedings.
A pardon is not reviewable by other branches of government and the president does not have to give a reason for issuing it. A pardon clears a criminal conviction. A different form of executive clemency, known as commutation, leaves the sentence intact but removes the punishment.
But the power of forgiveness is not absolute. Essentially, clemency only applies to federal crimes. That means pardons would not protect, for example, Trump associates from the criminal investigation being conducted by Manhattan District Attorney Cyrus Vance, a state attorney.
The Vance investigation, which began more than two years ago, stemmed from secret money payments that former attorney and repairman to President Michael Cohen paid before the 2016 election to two women, an adult film star and a ex-Playboy model, who said they had had sex. encounters with Trump. Trump has denied the encounters and has said the investigation is politically motivated.
The district attorney has suggested in court documents that the investigation is now broader and could focus on possible bank, tax and insurance fraud, as well as falsification of business records. It is not clear at what stage the investigation is. No one has been charged with criminal offenses.
COULD TRUMP FORGIVE HIS FAMILY MEMBERS?
Yes. It is legal for Trump to forgive his inner circle, including his family members. In 2001, former President Bill Clinton pardoned his own brother, Roger, who was convicted of cocaine possession in Arkansas. Clinton pardoned about 450 people, including a Democratic Party donor, Marc Rich, who fled the country on charges of tax evasion.
WHO ELSE COULD TRUMP FORGIVE?
Trump has said he could pardon Michael Flynn, his former national security adviser, who pleaded guilty to lying to the FBI about discussions he had with a Russian official before Trump took office in 2017. While awaiting sentencing, Flynn tried withdraw his guilty plea, claiming the FBI was created.
The Justice Department has been seeking a judge’s permission to drop the case. There has also been speculation that Trump would preemptively pardon his personal attorney, former New York Mayor Rudy Giuliani.
Federal prosecutors in Manhattan are investigating whether Giuliani violated lobbying laws at his businesses in Ukraine. Giuliani’s investigation is related to the case against two of his associates, accused of violations related to campaign finance. Giuliani has denied breaking the law and has not been charged with criminal offenses by prosecutors.
CAN TRUMP FORGIVE HIMSELF?
There is no definitive answer to this question. No president has tried it before, so the courts have not intervened. “When people ask me if a president can forgive himself, my answer is always, ‘Well, you can try,'” said Brian Kalt, a professor of constitutional law at Michigan State University. “The Constitution does not give a clear answer on this.”
Many jurists have said that an auto pardon would be unconstitutional because it violates the basic principle that no one should be a judge in their own case. Kalt said that, in his opinion, it was the strongest argument. Trump could try to pre-emptively pardon himself to cover the possibility of prosecution after he leaves office.
In that case, the legitimacy of the pardon may never be tested in court, Kalt said. For a court to rule on the validity of the clemency, a federal prosecutor would have to charge Trump with a crime and then Trump would have to raise clemency as a defense, he said.
COULD THE VICE PRESIDENT TAKE CONTROL AND FORGIVE TRUMP?
In a 1974 memo, a Justice Department attorney said President Richard Nixon could not forgive himself, but that another option was constitutional: resign temporarily, receive a pardon from his vice president, and then regain power. To do that, Nixon would have had to invoke the 25th Amendment to the United States Constitution, which allows an incapacitated president to resign temporarily.
Nixon eventually resigned in the face of the Watergate scandal and almost certainly impeachment and removal from office. His successor, Gerald Ford, later pardoned Nixon for any federal crimes he committed or may have committed while in office.
It’s unclear what Vice President Mike Pence would gain if he agreed to pardon Trump, said Corey Brettschneider, a professor of political science at Brown University. “I don’t think Pence wants that to define his legacy,” Brettschneider said.
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