Can Donald Trump pardon himself before leaving the White House?
The question also arises for his family and loved ones.
UNITED STATES - Six weeks before the departure of Donald Trump from the White House, a question arises in the United States: will the outgoing president be able to pardon himself and his family before leaving?
On November 25, the pardon granted by Donald Trump to his former National Security adviser Michael Flynn - the first of his relatives to have been implicated in the framework of the Russian investigation - revived the debate on the leniency of which he could demonstrate to his family, but also to himself by the end of his mandate.
The aim would be to rule out possible future legal trouble. As the New York Times reminds us, a “Manhattan District Attorney's investigation into the Trump organization” could be extended ”to tax deductions on several million dollars of the company's consulting fees, part of which appears to have been paid to Ivanka Trump ”.
So far, Donald Trump has used his pardon the little compared to his predecessors. He has granted pardons or reduced sentences to several political allies, including his former campaign advisor Roger Stone, a controversial ex-Arizona sheriff Joe Arpaio, Republican activist Dinesh D'Souza and earlier this week, his ex-advisor Michael Flynn. However, it could go further in the coming days.
President Trump should pardon Flynn, the Thanksgiving turkey, and everyone from himself, to his admin, to Joe Exotic if he has to.
— Rep. Matt Gaetz (@RepMattGaetz) November 25, 2020
The Left has a bloodlust that will only be quenched if they come for those who fought with @realDonaldTrump to deliver for the American people. pic.twitter.com/wdTfu3Xwmp
“President Trump should forgive (...) everyone, from himself to his administration,” a Republican representative proclaimed on November 25 in a tweet relayed by the president. Enough to resurface a publication from 2018, in the midst of an investigation into Russian interference in which the president said: “As has been established by many experts, I have the absolute right to GRACE myself, but why would I do this when I haven't done anything wrong? ”
You can't be judge and party
Would the presidential pardon allow him and his family to escape the hands of justice? In fact, Article II of the Constitution neither mentions nor excludes the hypothesis. It stipulates that "the president will have the power to grant himself reprieve and pardons for crimes against the United States, except in cases of impeachment."
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
So far, the Supreme Court has never had to rule on the issue. But many jurists argue that self-pardon would violate basic principles of law. According to Jean-Éric Branaa, a specialist in issues relating to society and US politics, one cannot be judge and party to one's own case: “It's impossible to pardon yourself alone, it's like marriage, it takes two. The president thinks there is a loophole in the Constitution, but there is not, ”he told A statement confirmed by Brian Kalt, a Michigan law professor, interviewed this week by the AP agency: “You can't afford something. You cannot forgive yourself. ”
A note from the Department of Justice dating from 1974 supports this point. In 1974, in the midst of the Watergate scandal, President Richard Nixon considered the option of self-pardon. Justice's response: "it seems that a president cannot pardon himself". The memo, however, mentioned another legally possible scenario: the president could declare himself temporarily unfit to exercise power under the 25th Amendment and transfer power to the vice president who would grant him a pardon.
“That Donald Trump cannot pardon himself does not mean that he cannot try,” warns Jean-Éric Branaa. "That's another question." According to him, if the president tried to grant himself a pardon, elected officials would appeal to the Supreme Court, which would reject him within days. This would result in immediate impeachment. And to add: “Politically, it would be an absolute scandal on the part of Donald Trump. The Americans would only remember that from his presidency and he could never stand for re-election in 2024 ”. Not to mention that granting himself a pardon would mean Donald Trump admitting he made a mistake, contrary to what he hammered in 2018: "Why would I do this when I have done nothing wrong?"
Pardon your children preventively
For Jean-Éric Branaa, on the other hand, it is likely that President-elect Joe Biden will grant a presidential pardon to Donald Trump, contrary to what he has claimed so far. "It would be an opportunity for him to come to terms with Donald Trump's 74 million voters, to reach out to them," he concedes.
But what about his family and loved ones? Donald Trump has considered the possibility of preemptively pardoning family members, such as Donald Trump Jr, Eric Trump, Ivanka and her husband Jared Kushner, according to the New York Times.
The American daily even revealed that the Republican had discussed with his advisers the possibility of granting a "preventive pardon" to the three oldest of his children.
However, according to a Supreme Court ruling, the right of pardon covers criminal acts committed or not, and can be exercised before the start of proceedings or the passing of a conviction. “The Constitution allows him to pardon his children and relatives. It would be scandalous, but Trump would be in the nails ”, explains to Jean-Éric Branaa.
In an interview with the US newspaper Houston Chronicle, Brandon Rottinghaus, professor of political science at the University of Houston, also said that Donald Trump "could certainly forgive his children, but should clarify what they did wrong." “Preventive pardons are tricky. It can be done, but usually involves a specific offense. The president should specify the reason for his pardons, ”he concludes.
