Can US President Donald Trump pardon himself?
After the violent incidents on Capitol Hill, there are many voices in the United States calling for criminal prosecution or impeachment proceedings against Donald Trump. Can the future ex-tenant of the White House self-amnesty to escape justice? France 24 takes stock of the different possible scenarios.
The hypothesis has been discussed for several weeks. But it takes a new thickness since the chaos caused, Wednesday, January 6, by pro-Trump demonstrators on Capitol Hill: The American president who continues to contest the result of the American elections of last November 3, can he agree to the amnesty?
Donald Trump already touched on the subject in a June 2018 tweet, investigating suspicions of Russian interference. "As has been established by many experts, I have the absolute right to pardon myself, but why would I do this when I have done nothing wrong?"
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!
However, the question is much less simple than what the outgoing president would like to believe. While the power of grace is extremely extensive, it is not without limits either.
In the United States, the end of a president’s term is a time of intense negotiations over pardons. But Donald Trump has used this power in the past to offer immunity to those close to him, such as his former National Security Advisor Michael Flynn. He could also pardon other collaborators, such as his personal lawyer Rudy Giuliani.
To protect himself, the outgoing president would also consider, according to the New York Times, the possibility of pardoning "preventively" members of his family.
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But can Donald Trump apply this power to himself? The question is divisive and does not seem completely settled. "This has been debated a lot in the United States, but the response that seems to be the majority is 'no'," Julien Boudon, professor of public law at the University of Paris-Saclay, told France 24.
"The first problem with a possible self-amnesty is that you cannot be judge and party," says lawyer Anne Deysine, a specialist in the United States. "This pardon would immediately be challenged in court." Indeed, no case law exists on the possibility for a president to pardon himself.
"It is not clear", summarizes Reed Brody, American lawyer and former deputy prosecutor in the State of New York, with the antenna of France 24. In addition, a possible amnesty would concern only federal crimes and misdemeanors but would in no way shut down the investigations launched against him by local courts, as in New York on the very sensitive file of taxes and income of billionaire Donald Trump.
This is not the first time this question has arisen in American history. In 1974, Richard Nixon’s lawyer, embroiled in the Watergate case, had already considered the possibility of "self-grace". A scenario then deemed impossible in a memo written by the Ministry of Justice.
"Since then, this doctrine has never been called into question, explains Julien Boudon. At the time, Richard Nixon did not forgive himself. He resigned and waited for grace from his successor, its vice-president, Gerald Ford. This shows that Nixon recognized that he could not self-root ".
With less than two weeks to go to the end of his presidential term, a similar arrangement between Donald Trump and Mike Pence, whose divorce appears to be over, is more than unlikely. In addition, the political cost would be astronomical for the vice-president, who is said to have ambitions for 2024.
An end of term shortened?
In the aftermath of the violence that rocked the Washington Capitol, House Leader Nancy Pelosi spoke in favor of impeaching the US president via the 25th Amendment or by impeachment if necessary. In total, more than 100 elected Democrats voted in favor.
However, the schedule is far too tight to initiate impeachment proceedings, according to Julien Boudon. "This is far-fetched because the impeachment procedure is extremely cumbersome and would take weeks," said the law professor.
There remains the 25th amendment, which allows the dismissal of a president deemed "unfit" for office, either temporarily or permanently, when the situation is deemed necessary and in extraordinary circumstances. This incapacity can be linked to dismissal, death or resignation.
The 25th Amendment also provides that a president can be removed from office if the vice president and a majority of the cabinet determine that he is "incapable of discharging the powers and duties" of the office. The president can challenge the ruling, but if the vice president and cabinet persist, then it is up to Congress to order the president's impeachment by a two-thirds vote of both houses.
"However, it is difficult to see Mike Pence convert a majority of the 15 members of the cabinet in such a short period, tempers Julien Boudon. We also note that Donald Trump has given signs of appeasement in particular by committing to promote a transition peaceful and orderly ".
New charges?
Already surrounded by numerous cases for suspicion of obstructing justice, sexual assault or even concerning his financial activities, Donald Trump could also be worried for his responsibility in the violence committed on Capitol Hill.
According to Julien Boudon, "the phrase 'walking on Capitol Hill' used in Trump's speech could serve as a legal basis" for prosecution.
"He could be prosecuted for what happened in Washington," confirms Reed Brody, but also for other cases like this phone call in which he pressured the Georgia secretary of state to 'find' him 12 000 votes and overturn the result ".
It will therefore be up to the new authorities and the new Minister of Justice, Merrick Garland, to take the decision to initiate an unprecedented prosecution against a former president.
Politically, President-elect Joe Biden is walking on eggshells as prosecution of Donald Trump could be seen as a vendetta led by Democrats.
"In the United States, it is believed that justice should not be used to settle scores. The tradition is rather to turn the page, analyzes Reed Brody. At the same time, do not prosecute a president who calls for sedition or demands to reverse the election result, that would mean that the president would be above the law. "
In a statement released Thursday, Joe Biden's team placed particular emphasis on the independence of the next justice minister. Merrick Garland and his team "will be the advocates of the American people, not the president's law firm," a way of reaffirming the rule of law in this potentially explosive handover environment.
