Donald Trump: can the US president forgive himself from being prosecuted after leaving power?
The United States is experiencing an unusual transition process between two governments, marked by the refusal of the current president, Donald Trump, to recognize the victory of his rival, Democrat Joe Biden, in the November 3 elections.
The president-elect denounces that his team is not receiving the information he needs for a smooth handover of power, while the still president shares on social networks videos of his achievements and accusations of him, without foundation, of fraud electoral.
In this context, one of the activities that Trump has undertaken, and which is common in the last days of a president's mandate, is the granting of pardons or commutations of sentences.
Last week, on Christmas Eve, the president announced these acts of clemency for dozens of people, including several of his closest allies, such as Roger Stone and Paul Manafort.
It is expected that between now and January 20, the date on which Joe Biden takes office, there will be new pardons.
And there are those who wonder if Trump will choose to grant himself a preventive presidential pardon to protect himself from any process against him once he leaves office and loses the immunity that currently protects him.
This concession would be an unprecedented measure, but can you do it?
Unexplored terrain
"I do not know, nobody knows, it has never been tried", answers Steven B. Duke, professor of Law at Yale University, in an interview with BBC Mundo.
"I don't think he's going to do it, honestly. If he forgives himself, he is virtually acknowledging that he committed a federal crime," he adds.
As the academic points out, no president has forgiven himself and, therefore, there has not been a case that has given the Supreme Court an opportunity to rule on the issue.
In Article II, the Constitution gives the President the power to "grant pardons and pardons for crimes against the United States, except in cases of impeachment (impeachment)."
Conflicting interpretations
Experts who believe that the president can be forgiven point out that the constitutional text is broadly written and does not contain any explicit exception that prevents the use or abuse of that power.
The fact that the founders made a specific exception for impeachment cases, they argue, implies that they did not want to include any other caveats.
This view was defended in 2018 by Andrew C. McCarthy, a fellow at the conservative National Review Institute and a former assistant attorney for the Southern District of New York, regarding Special Counsel Robert Mueller's investigation into Russian interference in the 2016 election.
According to McCarthy, the so-called fathers of the Constitution knew they were allowing presidential self-forgiveness when they wrote the text.
"If they had wanted to prevent a president from blocking federal prosecution of him, just as they tried to prevent it with respect to their own impeachment, they would have done so," he argued.
Trump himself tweeted in 2018 that he had the absolute right to forgive himself, although he added that he would not have to use it since he had not committed any crime.
On the other hand, some scholars argue that the word "grant or bestow" should be interpreted as an act in which one person gives something to another, so that a president could not grant himself a pardon.
At this point, Asha Rangappa, a lawyer, former FBI agent and professor at Yale University, has an impact.
"Whether or not a president can forgive himself is, technically, an open legal question, but the history and origins of this power - which comes from the divine right of kings - suggests that he needs a grantor and a beneficiary," he said. Rangappa tells BBC Mundo.
"And, in practical terms, allowing a president to self-forgive would place him above the law, which is inconsistent with the presidential duty to 'see that laws are faithfully enforced' and the intention of the authors of the Constitution, who they wanted to design a government based on the rule of law. "
A preventive pardon?
Another element that draws attention in the debate about what Trump can or cannot do is the use of the adjective "preventive" to talk about the potential for self-forgiveness.
In the United States, presidential pardons can be granted before there are charges or a conviction.
This was established by the Supreme Court in 1866 with a ruling in which it indicated that the power of forgiveness "can be exercised at any time after the commission of the crime, even before legal measures are adopted, during the process or after the conviction and trial ".
It is unusual for a president to issue a preemptive pardon before charges are filed, but there are examples, the most famous of which is Gerald Ford's pardon of Richard Nixon in 1974 which we will talk about next.
And in 1977, on his first day in office, Jimmy Carter pardoned hundreds of thousands of men who had eluded draft for the Vietnam War and allowed many of them who had fled to Canada to return home without fear of prosecution. .
Nixon as a reference
While there is no precedent for a pre-emptive presidential self-pardon in the United States, Trump is not the first to consider this possibility.
Richard Nixon raised it in 1974 in the middle of the Watergate scandal.
Although he ultimately chose not to, Nixon - who was a lawyer - believed that self-forgiveness fell within his powers as president.
The Office of Legal Advice, under the Department of Justice, contradicted him by issuing a report in which he said: "Under the fundamental rule that no one can be a judge in his own case, the president cannot forgive himself."
Nixon chose to resign and his successor, Gerald Ford, granted him a pre-emptive pardon "for all federal crimes that he committed or may have committed" during his time in office. With this he settled any possibility of him being prosecuted.
Out of reach of forgiveness
The word "federal" in Ford's pardon of Nixon is essential and affects the Trump case as well.
And is that the presidential pardon only covers crimes that fall under federal law and not those that correspond to judge the states.
Although Trump has not been formally charged with any crime, there are at least two open investigations at the hands of New York City officials.
Manhattan District Attorney Cyrus Vance and New York Attorney General Letitia James investigate potentially criminal conduct related to Trump's business practices prior to becoming president.
Any accusation or conviction resulting from these investigations, or from any other at the local or state level, would be outside the scope of the presidential pardon.
In this sense, Steven Duke believes that self-forgiveness can become a weapon against Trump himself because it can mobilize state prosecutors to seek litigation against him.
"In that case, he will almost certainly be prosecuted at the state level, maybe multiple times," says the Yale professor.
Different options
Given this scenario, what ways does Trump have to avoid a possible judicial process without having to forgive himself?
"There is no real need for self-forgiveness, because the natural thing for a president would be to reach an agreement with his vice president: the president resigns and he promises to forgive him by temporarily assuming the presidency," says Mark Tushnet, professor emeritus of law at the University of Harvard.
"This could, of course, spell the end of the vice president's political future, but in the current situation Vice President [Mike] Pence probably doesn't have much of a political future in any case," Tushnet told BBC Mundo.
For Professor Duke, Trump's best option is to do nothing about it because he sees it unlikely that the Biden administration will prosecute him.
"In the first place, the new administration will have a lot of difficulty prosecuting him and getting a jury convicted. Let's remember that Trump has more than 70 million followers," says Duke.
"Secondly," he adds, "Biden insists that he wants to heal Democratic-Republican relations to get things done. Impeach Trump would not help that cause."
