Column: Can Trump Forgive Himself? You can try ...
Among the questions that suddenly arose with Joe Biden's victory is this constitutional conundrum: Can President Trump forgive himself?
The short answer is probably no. But before explaining that, we have to deal with a number of preliminary questions.
Start here: If Trump tries to forgive himself, don't expect a full answer on the question of his legality in the next four years. That's because the courts would have to make a final determination.
First, Trump would have to grant himself a pardon, not unlikely but not certain either, then Biden and his attorney general would have to decide to prosecute Trump for one federal crime or another (something they would not do unless they had concluded that self-pardon would result in unconstitutional). Ultimately, a federal prosecution would send the matter to the Supreme Court.
It is very possible, of course, that Trump has committed federal crimes in the last four years, but would any of them reach a level that would cause Biden to put the country in the convulsions that a criminal trial of the former president would entail? It would profoundly aggravate partisan wounds, as well as threaten Biden's already fragile political position as president of all the people. Biden is a healer who wants to do things right; prosecuting Trump drastically undermines both goals.
Furthermore, the federal government does not need to prosecute Trump to ensure a modicum of justice for his criminal conduct. Manhattan prosecutor Cyrus Vance Jr. has been conducting a criminal investigation into Trump for a series of state fraud, financial and tax offenses. The inquiry is proceeding apace; Vance is likely to make decisions in a few months. And because a president cannot forgive himself (or anyone else) for state crimes, his Article II powers will have no effect.
In fact, if Trump is smart, he might better stay put because New York last year changed its laws with him in mind. State dual criminality rules used to prohibit the prosecution of someone for conduct that was the subject of a federal pardon. Not anymore, expressly due to Trump's corrupt and pernicious use of the power of forgiveness. If the president forgives himself, it would be a serious blow to New York, an invitation for Vance to double down.
Let us now turn to the constitutional question, which, as I say, will surely remain academic. Present a puzzle. It's a bit like the question my Catholic friends used to ask to baffle nuns: If God is almighty, can he make a stone so heavy that he can't lift it himself?
The argument in favor of self-forgiveness is based on the unconditional nature of the language in Article II: The president "shall have the power to grant pardons and pardons for crimes against the United States, except in cases of impeachment."
"In general, it has been inferred from the breadth of constitutional language," writes retired federal jurist and judge Richard A. Posner in a book on the Clinton impeachment, "that the president can forgive himself."
But, seriously? A proper constitutional interpretation would have to go much deeper, to our best understanding - historical, legal, cultural - of what a pardon is. Forgiveness implies a grant of mercy to another. Nothing in the purposes or history of the Constitution's power of forgiveness can be read to authorize self-forgiveness.
Instead, there is a very solid basis for interpreting the forgiving power of Article II as a prohibition on self-forgiveness. This flatly contradicts a cardinal principle of Anglo-American law: no one can be a judge of his own cause. Self-forgiveness unquestionably puts the president above the law, a result that would be anathema to legislators and to our legal tradition.
Self-forgiveness is also undermined by this phrase: "except in cases of impeachment." If a president could forgive himself, he would conflict with the clear meaning of these words, which is that the criminal prosecution of a president can proceed after impeachment.
Ultimately, self-forgiveness would violate the president's core constitutional responsibility to "see that laws are faithfully enforced." Trump's exemption from criminal law would evidently fail the "care" test, and at least the "faithfully" part arguably fails as well: Most scholars argue that the word requires that the executive branch be motivated by some kind of public purpose, rather than to classify self-treatment. (In these terms, Trump can prove to have been the most unfaithful president in history.)
Our 45th president is famous for not being able to sit still after the 4th Amendment when an aide tried to read him the Constitution beginning with the Bill of Rights. You probably think you have the power to forgive yourself. He is wrong, but because his successor will be guided by a prudence that Trump would not understand, he will probably never find out.
