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For a few days the US press has been discussing the possibility that President Donald Trump could grant himself a preventive pardon, which would protect him from any federal investigation when his term expires on January 20. The debate has grown after Trump’s recent decisions to pardon several of his former collaborators and allies, some of them convicted of federal crimes as part of the investigation into Russian interference in the 2016 US presidential election campaign: among the most acquaintances are Michael. Flynn, George Papadopoulos, Paul Manafort, and Roger Stone.
Trump himself said that he had begun to study the possibility of granting a preventive pardon to his family and allies, such as lawyer Rudolph Giuliani, but also to himself. Two years ago had written: “As many jurists affirm, I have every right to forgive myself.”
It is not clear whether US law attributes this right to the president, because the constitution does not address the issue directly, the New York Times. Academics are divided, and Trump could use this division to protect himself and those closest to him from any investigation before the end of his presidency.
Let’s start from the beginning. The pardon is a power that the Constitution attributes to the president, with few limits: it can affect any type of crime, as long as it is federal and not state, and it can mean a commutation of the sentence (therefore, its reduction or elimination of a shame). or a royal pardon (a broader cancellation of all legal consequences caused by a conviction). Pardons can also be granted in advance, therefore, before the start of a trial, as established by the United States Supreme Court in 1866.
There is a famous precedent for a preventive pardon, the one granted in 1974 by the then president of the United States, Gerald Ford, to his predecessor, Richard Nixon. Nixon had resigned due to the Watergate scandal, more widely reported here. Ford’s pardon was not just about a specific crime, it was “total, gratuitous, and absolute” – it covered every federal crime that Nixon might have committed during his presidency, to name a single one. However, it is not clear if this kind of grace – preventive and at the same time so broad and that does not refer to any particular crime – would have had full effect: Nixon was never prosecuted, and therefore, the grace granted by Ford it was never “proven”.
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In addition to being preventive, and perhaps comprehensive enough to cover all federal crimes, the president can also grant clemency to his family and allies. The Constitution does not raise issues of conflict of interest and has been granted controversially by some US presidents in the past, motivated by personal reasons. One of the best known cases is that of Bill Clinton who in 2001, shortly before leaving the White House, pardoned his brother Roger Clinton (convicted of a drug offense in 1985 and imprisoned for a year) and his former business partner . Susan McDougal (convicted of a major scandal dating back almost ten years).
The most controversial question is whether a president can forgive himself: the Constitution does not speak about it, and not even the Supreme Court has ever intervened to clarify. There are no certainties and the experts are divided.
Those who believe that the president can forgive himself use as an argument the fact that the Constitution does not expressly contain a prohibition on self-indult. According to this interpretation, the founding fathers did not want to exclude the possibility of forgiveness; instead, they wanted to exclude the granting of pardons in impeachment cases, an eventuality that is clearly prohibited in the Constitution. Those who believe that the president cannot forgive himself, however, argue among other things that the founding fathers’ choice to use the term “grant”(Grant, referring to grace) must be interpreted in the sense of a person giving / bestowing something to another person; and therefore not from a person who gives something to himself.
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As the New York TimesTrump could still try to get around the hurdle. The Constitution provides for the possibility of making the vice president “president” temporarily, in cases in which the president cannot fulfill his functions: it happened for example in 2002 and 2007, when then-president George W. Bush had to be sedated for a colonoscopy, and temporarily entrusted his powers to Vice President Dick Cheney. Trump could hand over his powers to Vice President Mike Pence, be pardoned, and then return to office. It would be an extremely controversial measure, but probably legal.
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