Trump wants to give presidential pardon to his entourage before he leaves the White House
According to the American media, the outgoing president is thinking of bestowing maximum forgiveness on his family and collaborators, from Rudy Giuliani to Jared Kushner, even in the absence of convictions. But can he do it? Here's what the law says
The outgoing president of the United States, Donald Trump, is considering with his advisers whether "to grant preventive pardon to his children, his son-in-law and his personal lawyer Rudy Giuliani". While he still hasn't acknowledged the electoral defeat against President-elect Joe Biden, it seems Trump is starting to worry about what will happen at the end of his term. According to sources reported to the New York Times, the tycoon is concerned that the Biden administration's Justice Department may indulge in unlikely "retaliation" against the outgoing president, targeting his three eldest sons - Donald Jr.. Eric and Ivanka - as well as Ivanka's husband and White House senior adviser Jared Kushner and Trump's trusted personal attorney Rudy Giuliani.
The reasons reported why family members and collaborators could - according to Trump - be targeted are various and not always clear. Donald Jr. had been investigated by Robert Mueller, special adviser to the Department of Justice, for contacts he had with the Russians offering information on Hillary Clinton during the 2016 presidential campaign, but he was never formally charged. Jared Kushner ran into trouble in 2018 for providing false information to federal authorities about his ties to foreign governments and investors required to get security clearance for the Trump administration, but the president secretly gave him one nonetheless. Rudy Giuliani was the subject of an investigation last summer for his role in the plot in Ukraine that was at the center of Trump's impeachment last year. The nature of Donald Trump's concern over any potential accusations against his children Eric and Ivanka is entirely arbitrary.
On the other hand, some sources have told the ABC News network that "Trump is inclined to subvert normal procedures when it comes to forgiveness": only this Tuesday, December 1, it was learned that the Department of Justice is investigating an alleged corruption scheme to obtain presidential pardon using the Trump administration, although details are still few and no formal allegations have yet been made. In any case, according to CNN journalist Jim Acosta, a "flurry" of thanks must soon be expected before the outgoing president leaves office. But can Trump really preemptively forgive his family and other collaborators, even if they have not been charged with any crime?
How presidential pardon works in the United States
Presidential pardon in the United States is a prerogative of the executive branch that acts as a counterweight to the federal criminal justice system, allowing a president to bestow mercy on those who break the law. The US Constitution gives the president the power of pardon "to grant conviction and pardon for crimes against the United States, except in cases of impeachment." It can be a commutation, which reduces or eliminates a penalty imposed after a judicial sentence, or an actual pardon - that is, an annulment of all the legal consequences of a crime.
And so, yes: if he wants, the president can also issue pardons in advance of any accusation or conviction. During a case in 1866 involving a former Confederate senator pardoned by then President Andrew Johnson, the Supreme Court stated that the power of pardon "extends to every crime known to the law and can be exercised at any time after its commission, or before legal proceedings are initiated or during their suspension, or after conviction and sentence ”.
Preventive pardon is unusual for a president, but there have already been examples, as in the case of President Gerald Ford's 1974 pardon of former president Richard Nixon to prevent him from being prosecuted after the Watergate scandal. And in 1977, on his first day in office, President Jimmy Carter forgave hundreds of thousands of men who had evaded draft during the Vietnam War, allowing many who fled to Canada to return home without fear of being prosecuted.
Furthermore, the US Constitution does not rule out indulgences that raise apparent conflicts of personal interest for presidents, so heads of state are not forbidden to forgive relatives and friends. However, the president has leniency only on federal offenses. Some types of crimes, such as tax evasion and financial fraud, are crimes prosecuted under federal and state law. President Trump, for example, does not have the authority to prevent New York prosecutors from investigating various issues relating to his financial relationships (as they are already doing).
