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On Wednesday, President Donald Trump granted clemency to his former campaign chairman Paul Manafort and former adviser Roger Stone, sweeping away the most significant convictions in US special counsel Robert Mueller’s investigation into Russian meddling in the 2016 presidential campaign.
So far, Trump, who has 27 days left in the White House until President-elect Joe Biden is sworn in on January 20, has issued 70 pardons since taking office.
The New York Times reported earlier this month that Trump had spoken with his personal attorney Rudy Giuliani about forgiving him, citing two people briefed on the matter. The Times also said Trump has asked his advisers about the possibility of “preemptively” pardoning his three oldest children: Donald Trump Jr., Eric Trump and Ivanka Trump.
In 2018, Trump even said that he had an “absolute right” to forgive himself, a claim many scholars of constitutional law dispute.
Here’s an overview of Trump’s forgiving power.
CAN A FORGIVENESS BE PREVENTIVE?
Yes.
Most pardons are granted to people who have been tried and convicted. But pardons can cover conduct that has not resulted in legal proceedings, although they cannot apply to future conduct.
The Supreme Court said in 1866 that the power of pardon “extends to all crimes known by law, and can be exercised at any time after their commission, either before legal proceedings are started or during their processing, or after conviction and trial. “
Most famously, former President Richard Nixon was preemptively pardoned by his successor Gerald Ford in 1974 for all crimes he may have committed against the United States while in office.
In 1977, President Jimmy Carter preemptively pardoned hundreds of thousands of “draft evaders” who avoided a government-imposed obligation to serve in the Vietnam War.
ARE THERE LIMITS ON THE POWER OF THE PRESIDENT’S PARDON?
The power of forgiveness, which comes from the Constitution of the United States, is one of the most extensive available to a president. The founders of the nation saw the power of forgiveness as a way to show mercy and serve the public good.
The president does not have to give a reason to issue a pardon. In a 1981 case, the Supreme Court said that pardons “are rarely, if ever, appropriate subjects for judicial review.”
The power of forgiveness, however, is not absolute. Essentially, clemency only applies to federal crimes.
COULD TRUMP FORGIVE HIS CHILDREN AND INNER CIRCLE?
It would be legal for Trump to forgive his inner circle, including his family members.
In 2001, former President Bill Clinton pardoned his brother, Roger, who was convicted of cocaine possession in Arkansas.
Clinton pardoned about 450 people, including a Democratic Party donor, Marc Rich, who had fled the country before on charges of tax evasion.
HOW EXTENDED CAN A FORGIVENESS BE?
It is not clear.
The clemency that Nixon received from Ford was extensive, absolving Nixon of all crimes he committed or may have participated in during his presidency.
The United States Supreme Court has never ruled on the legality of such a broad pardon. Some scholars have argued that the nation’s founders intended the pardons to be specific and that there is an implicit limit to their scope.
WHAT WOULD TRUMP FORGIVE HIS CHILDREN OR GIULIANI FOR?
Trump’s children have not been charged with any criminal offenses, and it is unclear why Trump would pardon them.
Manhattan District Attorney Cyrus Vance, who enforces New York state laws, has been conducting a criminal investigation into Trump and his family business, the Trump Organization. Vance, a Democrat, has suggested in court documents that his investigation could focus on bank, tax and insurance fraud, as well as falsifying business records.
It is not clear at what stage the investigation is. No one has been accused of wrongdoing.
Trump, a Republican, has called the Vance investigation politically motivated harassment. A presidential pardon, which can only be granted for federal crimes, would not apply to this investigation.
Giuliani’s potential criminal exposure is unclear. Manhattan federal prosecutors have been investigating his business in Ukraine. Giuliani has denied wrongdoing and has denied talking to Trump about a pardon.
“He never had the discussion that they falsely attributed to an anonymous source,” Giuliani said on Twitter on December 1, referring to the New York Times report.
CAN THE RECIPIENTS OF THE FORGIVENESS “ADVOCATE THE FIFTH”?
Under the Fifth Amendment to the United States Constitution, individuals can refuse to speak to investigators if doing so could lead to self-incrimination. If someone receives a pardon and no longer faces legal danger at the federal level, they may find it more difficult to enforce this constitutional right.
However, since a presidential pardon applies only to federal crimes, pardon recipients can still legally refuse to cooperate if the conduct for which they have been pardoned can also be prosecuted as a state crime.
CAN TRUMP FORGIVE HIMSELF?
There is no definitive answer. 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, professor of constitutional law at Michigan State University. “The Constitution does not give a clear answer on this.”
Many legal experts have said that a pardon would be unconstitutional because it violates the principle that no one should be a judge in their own case.
Trump could try to pre-emptively pardon himself to cover the possibility of prosecution for federal crimes after he leaves office. No clemency could protect you against prosecution by a US state.
For a court to rule on the validity of the clemency, a federal prosecutor would have to charge Trump with a crime and Trump would have to raise clemency as a defense, Kalt said.
(Reporting by Jan Wolfe; Edited by Noeleen Walder and Leslie Adler)
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