Clarify: Can Trump forgive himself? Would the courts refuse to maneuver?
© Reuters. US President Trump leaves Washington at Joint Base Andrews in Maryland on a trip to Texas
By Jan Wolfe
(Reuters) – As Donald Trump prepares to end a tumultuous four-year tenure as U.S. President that faces potential legal threat, he was discussing the possibility of a pardon, according to a source familiar with the matter. There are questions, however, as to whether a president’s far-reaching powers of grace under the US Constitution would allow such a practice.
The Justice Department previously held that the Constitution does not allow a sitting president to be indicted, but that a former president does not enjoy such protection.
Here's an explanation of the possible constitutional issues with a self-forgiveness and why such an action wouldn't end Trump's legal vulnerability after his term ends on Wednesday.
Is Self-Forgiveness Constitutional?
There is no definitive answer to this question and the Constitution does not specifically address this possibility. No president has tried before, so the courts have not interfered. Trump wrote on Twitter in 2018 that he had the "absolute right" to apologize to himself. A White House spokesman declined to comment on the possibility of self-forgiveness.
Many scholars have said that self-forgiveness is unconstitutional because it violates the fundamental principle that no one should be the judge in his case.
Others have argued that self-pardon is constitutional because the power to pardon is very broad in the constitution. Historical texts made it clear that the 18th-century founders of the nation discussed self-forgiveness, but chose not to explicitly restrict that power.
The constitution states that a president should "have the power to grant reparations and pardons for crimes against the United States, except in cases of impeachment." The common usage and history of the words "grant" and "pardon" implies that a president's power under the clause is limited to pardoning others, according to Frank Bowman, professor of law at the University of Missouri.
The Justice Department last examined the matter in a memo from a lawyer in its Legal Department in 1974 that concluded that it would be unconstitutional for then-President Richard Nixon to apologize. Nixon resigned earlier this year amid the Watergate political scandal.
"Under the basic rule that no one is allowed to be a judge in his case, the president cannot apologize," wrote the lawyer for the Justice Department.
However, the memo argued that Nixon could resign temporarily, be pardoned by his then-vice president, and then resume power. The 1974 memo has no legal authority.
Presidential pardons apply only to federal crimes, not state crimes.
How could self-forgiveness be tested in court?
Under US law, courts do not issue opinions. In order for a court to rule on the validity of a self-pardon, the Justice Department must accuse Trump of a crime and then claim the pardon in defense, according to legal experts.
Self-forgiveness might only encourage prosecutors to bring a case against Trump as it would suggest he is hiding something, said law professor Jessica Levinson of Loyola Law School in California.
Why should Trump forgive himself?
He can be prosecuted on several fronts.
Some legal experts have drawn attention to Trump's phone call on January 2nd pressuring Georgia's top electoral officials to "find" enough votes to undo his November 3rd election loss to the state's elected President Joe Biden. They said the call could have violated federal and state laws.
A Georgian law against "criminal inducement to commit election fraud" makes it illegal for a person to intentionally induce, demand, order or otherwise induce another person to commit election fraud. A separate federal law makes it illegal to attempt to “rob or defraud” people of “fair and impartial voting”.
Trump would likely argue that he was merely expressing his personal opinions to the official and not ordering him to interfere in the election.
Some lawyers said Trump may be in jeopardy for an incendiary speech he delivered to thousands of supporters on Jan. 6, just before a mob descended on the U.S. Capitol and disrupted Congressional attestation of Biden's victory, leaving lawmakers hiding and five People left behind were dead. Trump could insist that his statements are protected by the constitution's guarantees of free speech, other lawyers said.
Trump could be attacked by prosecutors for violating state laws. Manhattan District Attorney Cyrus Vance is already leading a tax fraud investigation into Trump's company, although no charges have been brought. Trump has described the investigation as politically motivated.
How broadly could self-forgiveness be formulated?
There are precedents for very broad pardons. Nixon eventually received a "full and unconditional pardon" from his successor, Gerald Ford. The pardon released Nixon for "any crimes he may have committed against the United States as President."
The US Supreme Court has never ruled whether such a broad pardon is legal. Some scholars have argued that the nation's founders intended that pardons be specific and that their scope is implicitly limited.
Could a pardon be preventative?
A pardon may not cover future behavior, but a pardon can be preventative in the sense that it can cover behavior that has not yet resulted in legal proceedings.
The Nixon pardon is one example, and there are others. In 1977, President Jimmy Carter preemptively pardoned hundreds of thousands of draft dodgers who avoided a government-imposed obligation to serve in the Vietnam War.