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Trump recently raised the question of the possibility of forgiving himself, as he was recently asked to prosecute him after he was incited to carry out a siege on the United States Capitol, during which five people were killed and members of the Congress had to evacuate for security reasons. But while the president has broad powers to bestow mercy on others, bestowing mercy on himself would be an unusual expression of executive power that both Democrats and Republicans can demand that the Supreme Court repeal.
“Doing so could make him an easy target for prosecution,” said Nick Akerman, a former Watergate prosecutor. “This overshadows the idea that someone is being persecuted just because they were a political opponent in the previous administration.”
D. Trump was threatened with prosecution even before Wednesday’s riots. The administration of President-elect Joe Biden could decide to reopen US Special Counsel Robert Mueller’s investigation into a possible obstruction of justice for Trump or launch a new investigation into his charges. But such legal persecution would meet stiff Republican resistance, and Biden has hinted that he prefers to move on.
Confusing calculations
The siege of the capital, now that many of the president’s allies have turned away from him, has confused political calculations. The New York Times reported Thursday that White House aide Pat Toomey, who led the team of lawyers, had warned Trump that he could face charges for inciting the unrest.
During a press conference Thursday, a US attorney in Washington said he did not rule out an investigation into the president’s role.
In these circumstances, gracing Mr. Trump himself may seem like a tempting opportunity. But many experts believe the idea has a weak legal basis.
First, Mr. Trump was protected from federal prosecution during his tenure, not by the Constitution or a binding Supreme Court precedent, but by the internal policies of the Department of Justice. Granting oneself the grace would challenge the constitutionality of such a policy: the 1974 legal findings of the Department of Justice state that “the president cannot grant himself grace,” because, as the findings state, “the essential rule is that no one can be a judge in his own case. “
This Justice Department policy follows the Watergate scandal, during which President Richard Nixon resigned and was pardoned by his former Vice President, Gerald Ford. If Trump went the same way and accepted the granting of Mike Pence’s clemency, such a move would have a solid legal basis. But giving yourself grace is unprecedented in history.
Absolute power
The constitution states that the president “has the power to defer the execution (of the death penalty) and to grant pardon for misconduct against the United States, except in cases of impeachment.” According to some experts, this would mean that the power is absolute. John Yoo, a former Justice Department official in the Geroge W. Bush administration, wrote in the 2017 edition of The New York Times that the president “can obviously grace anyone, including himself.”
But other experts disagree. “If the president can grant himself clemency, the claim for compensation for the federal crimes he has committed disappears,” said Jessica Levinson, professor of constitutional law at Loyola Marymount University. “And our system is definitely not that designed.”
Mr. Ackerman draws attention to the word “grant” as proof that grace can be something that can be given to others. “It is a final verb whose object is someone other than the one who gives,” he explained. “From a linguistic point of view, it no longer makes sense to be able to donate to yourself.”
Most conservatives
D. Shortly before, it might have occurred to me that a conservative majority of the Supreme Court, 6-3, composed of three justices appointed by him, would support him in such a dispute. He has repeatedly expressed his confidence that the Supreme Court will support his legal efforts to overturn the election results. But the justices, along with several other federal judges, resolutely rejected the president’s arguments.
According to experts, they are likely to be skeptical about the possibility of granting them mercy. Jennifer Rodgers, a former federal prosecutor who teaches at Columbia Law School, says she doubts conservative judges will support Trump in the case.
“Several of them call themselves defenders of the theory of originalism, so they must carefully follow the definition of the right to grant grace,” Rodgers said. “Therefore, they can be expected to declare that the bestowal of mercy on oneself is not within the authority of the president.”
However, the president may eventually come to the conclusion that the potential benefits of giving yourself grace outweigh the risks. A legal battle over the legitimacy of the granting of clemency can prolong any persecution and give you time to strengthen your defense and drain government resources.
“He would still benefit from that, even if the efforts failed,” said Andrew Weissmann, one of the top prosecutors on Mueller’s team. “The process would be postponed for a while.”
A dangerous precedent
The likelihood of a protracted fight that could distract attention from other political goals may be one reason the Biden administration will decide not to prosecute Trump. During the election campaign, the president-elect also expressed concern about a possible dangerous precedent for the persecution of political opponents, saying that “it would not be very good for democracy.”
Even if it decides not to press charges, the Justice Department can, experts say, challenge the legitimacy of Trump’s pardon for itself by writing a more complete and updated version of the 1974 memo, said Jed Shugerman, a Fordham law professor. And while it would not have the binding legal force of a Supreme Court opinion, it could deter future presidents from attempting similar action in the future.
D. Giving yourself a brief forgiveness can backfire on yourself and trigger other legal risks. Even if the granting of clemency were lawful, it would apply only to federal crimes. It does not protect against state-level investigations, such as Manhattan District Attorney Cy Vance’s investigation into Trump’s business relationship.
A New York prosecutor recently interviewed Deustsche Bank employees and insurance agent Aon in an investigation that began primarily to explain the payment of thousands of dollars to pornographic film star Stormy Daniels, who may have had sex with Trump. ten years ago.
Georgia Secretary of State Brad Raffensperger also said Trump could be threatened by a state investigation into a Jan. 2 phone call in which he pressured Georgia’s top election official to “find” enough votes to start a victory. from Joe Biden’s hands. in this southern state. Deliberately encouraging voter deception is both a federal and state crime.
State officials are likely to use Trump’s pardon to rally public support for the cases before the outgoing president, Rodgers said.
“People will be more supportive of prosecution decisions if he tries to forgive himself when he leaves the White House,” he said. “A large section of the public will recognize such a move as outrageous and offensive.”
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