The constitution contains no explicit barrier for a president to give himself a pardon, but some scholars say that the founders hinted that the clemency power should not be used for self-negotiation.
The long legal debate, which has accelerated in recent days amid reports that the president has discussed the idea of self-forgiveness with advisers, has gained new urgency now that Trump has stacked the court with three conservative wool dyes: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
While most judges claim to be textualists – meaning that they adhere closely to the literal words of the Constitution – and originalists – who believe that the founders’ intent is crucial to interpreting the law – sometimes cleavages arise and can do so again in a case about the validity of a Trump self-forgiveness.
“Those who engaged in the original project, looking at history, would think about what they might have meant,” said Ethan Leib, a law professor at Fordham University, about the founders. “Being true to that meaning means not doing it just to get involved in self-protection.”
However, a strictly literal textualist interpretation of the Constitution may favor Trump, as advocates of limiting his power may be accused of inventing words that are not really in the text.
Last June, Gorsuch surprised and disappointed many conservatives when he joined court liberals and court president John Roberts in a literalist and textualistic interpretation that discovered that LGBT people are protected by the existing half-century law against sexual discrimination. at the job.
Although lawmakers who voted on the text in 1964 almost certainly do not think it prohibits discrimination against gays and lesbians, Gorsuch – who wrote by the majority of the court – said that such a ban was clearly required by the words used by Congress. The three other conservatives at court at the time disagreed, contesting Gorsuch’s reading of the law. But they also took a more originalist approach, arguing that their approach produced a blatantly contradictory result with the law’s clear intention.
These flaws suggest that Trump cannot simply rely on the court’s conservative majority to rule as he wishes.
“It is certainly a matter of first impression,” said Hucek. “There may be some appeal for more conservative justice … that forgiveness of oneself is not something that is contemplated in the Constitution.”
There is a specific exclusion from the president’s pardoning power: the Constitution says that it does not apply to impeachments. Courts and lawyers generally agree that a president cannot grant pardon for crimes not yet committed. And because the federal government and state governments are considered separate sovereigns, a presidential pardon would not absolve someone from state crimes. This could be crucial in the case of Trump, with the Manhattan district attorney and the New York attorney general investigating his business.
One of the first decisions on how to respond to Trump’s forgiveness on his own would fall on President-elect Joe Biden’s nominees in the Justice Department. They would have to decide whether to allow federal investigations into Trump, either because of their potential culpability in the Capitol riot last week, their efforts to support state officials to overturn election results, or the series of other potential crimes cataloged by the Special Council on Robert Mueller report.
DOJ’s only public word on the matter came from its Office of Legal Counsel (OLC) in August 1974, at the height of Watergate. Acting assistant attorney general Mary Lawton said such a pardon would not be valid. “Under the fundamental rule that no one can be a judge in their own case, it seems that the question must be answered in the negative,” Lawton wrote.
However, the memo was evidently hastily drafted and was only a “draft” of the law, not a formal opinion. Nixon ended up choosing not to forgive himself, but he obtained one of his successors, President Gerald Ford.
Hucek, now at the Keker & Van Nest law firm, says he thinks if Trump tries to forgive himself, the Biden Department of Justice will quickly review his 46-year conclusion and make the result public.
“Given how important it is and how sensitive it is, I think the DOJ leadership will issue some sort of guidance,” she said.
Biden hinted that he chose Merrick Garland, who is highly esteemed by lawmakers on both sides, to give credence to the delicate decisions that the Justice Department may have to make in the coming months on how to deal with various allegations against Trump. A review of the 1974 legal assessment could end at the top of the list.
When Biden announced Garland’s choice last week, the president-elect suggested that Trump should face legal consequences for his actions related to the Capitol riot the day before.
“Our president is not above the law. Justice serves the people. It does not protect the powerful. Justice is blind, ”said Biden. “What we saw yesterday, in plain view, was another violation of a fundamental principle of this nation. We don’t just see the failure to protect one of the three branches of our government. We also saw a clear failure to do justice equally. ”
However, Biden also promised not to get involved in the Justice Department’s prosecutor’s decisions, including whether his predecessor should face charges.
Leib said he agreed with the conclusion of the 1974 OLC memorandum that personal forgiveness would be invalid, but believes it must be based on a broader rationale involving the president’s duty to faithfully enforce the laws.
The structure of the Constitution and the founders’ stated concerns about uncontrolled executive power also support the notion that a president cannot forgive himself, Leib said.
Other scholars have argued that drafting the president’s “Power to Grant Rejections and Forgiveness for Offenses against the United States” implies giving forgiveness to someone else – not you.
Hucek raised a similar concern, speculating how the flowery language of a concession of clemency to himself would be expressed. “It would just be a very strange formulation … he would have to refer to himself in the third person and then sign it,” she said.
It is also unclear how Trump would specify what crimes he was apologizing for or whether he would attempt a broad, time-based pardon, such as the one President Gerald Ford granted President Richard Nixon for any crimes he may have committed while in office.
Trump’s lawyers may also be hesitant to write a pardon for him, especially if he seeks to sweep away his conduct before and during the violent attack on the Capitol last week.
However, Leib said he suspected that a loyal outside lawyer like Rudy Giuliani would write the text if lawyers in the White House office refused to help Trump.
“There always seems to be someone to serve you,” said the professor.
But judges and judges may also have qualms about being pushed into the role of deciding which pardons are legitimate and which are not. In recent days, there has even been speculation that Trump could grant pardons to his supporters accused of participating in the Capitol violence.
“I think people really need to think about what would happen if you learned in an hour that [Trump] were you forgiving all the people who were arrested? ”Said deputy Conor Lamb (D-Pa.). “The powers of his position probably allow him to do that.”
Trump’s critics tried unsuccessfully to challenge some of his earlier pardons. Last month, a judge dismissed the claim that Trump’s pardon to former national security adviser Michael Flynn was “corrupt” and invalid due to the fact that the investigation that Flynn admitted to lying was focused on Trump.
Leib said that whatever the judges’ views on Trump or the constitutional interpretation, he thinks it is unlikely that they will reject Trump’s pardon because many in the current court adhere to a view of a largely unrestricted presidency.
“If you ever go to the Supreme Court, there is a very strong executive power group there now,” said the professor. “They may even change their mind [about limits on the pardon power], but decide that it cannot be executed in court … The idea that Clarence Thomas and Brett Kavanaugh are going to vote to disable a presidential power seems far-fetched to me. “