In his last 48 hours in office, President Donald Trump plans to forgive more than 100 people. Although he already had the idea of doing so, it is not clear whether he will try to include himself among those who receive clemency.
According to CNN, Trump had a meeting on Sunday with key advisers – including his daughter Ivanka Trump and her husband, Jared Kushner – to review candidates for their final pardons. The Washington Post said it would announce pardons and commutations of prison sentences on Monday or Tuesday.
It is an open question whether two close associates, Stephen Bannon and Rudy Giuliani, would be on the list, which is supposedly populated with more traditional candidates for forgiveness, as well as some prominent figures.
Bannon, who was an advisor to the Trump campaign in 2016, was accused last year of defrauding donors who contributed to an effort to privately finance new sections of the U.S.-Mexico border wall. Giuliani served as Trump’s personal lawyer for years and helped lead the unsuccessful attempts of the Trump campaign to overturn the November election results in the courts. Unlike Bannon, Giuliani has not been charged with any crime, but his financial transactions with Ukrainian business partners are under investigation.
Any forgiveness for Giuliani, then, would be preventative – and according to the Washington Post, Trump is also considering preemptively forgiving his family members.
Trump has been trying to forgive his family and Giuliani for weeks. According to the New York Times, the president expressed concern that the next Biden government will target the Trump family. The family also faces an investigation in New York, although a presidential pardon does not affect state or local criminal investigations or charges.
In general, it is not uncommon for a president to grant leniency to offenders as part of his last days in office. President Barack Obama granted 330 commutation sentences for nonviolent drug offenders on January 19, 2017, his last full day in office. This set a record for a day. Overall, Obama has granted clemency to 1,715 people incarcerated over his eight years, using a single executive authority.
Trump used the same power 94 times, including the forgiveness of 49 people in the week before Christmas 2020. But many of those pardons were from allies, or those with ties to his family. For example, he forgave his wretched former national security adviser Michael Flynn, who was accused of lying to the FBI while investigating Trump, just before Thanksgiving.
Former campaign president Paul Manafort and Roger Stone, a longtime friend and ally, were among those who received Christmas pardons, as did Charles Kushner, Ivanka’s father-in-law, who was convicted in 2005 of tax evasion, adulteration of witnesses and lies to the Federal Election Commission.
Also raising concerns is a report by the New York Times, which found that Trump’s advisers and allies have been accepting money to lobby for pardons. As long as Trump himself is not paid to provide a pardon, this is not illegal – but criminal justice advocates have expressed concerns that this may benefit those with resources and connections about low-income pardoners.
Trump has granted clemency to some lesser-known people, though often at the request of high-profile figures like Kim Kardashian; she personally appealed to Trump to free Alice Johnson, a woman serving a federal drug trafficking sentence.
Trump’s final pardons are expected to contain some figures like Johnson, but also people he is close to. The question, however, is whether he will try to forgive himself preventively. Trump faces no charges – although he potentially could for his role in inciting the January 6 uprising – and no president has ever tried to forgive himself before.
Whether a president can forgive himself is a matter of legal debate. But even if Trump can forgive himself, it is not clear that he should, as any forgiveness can be seen by some as an admission of guilt, something that could jeopardize his chances of absolution in his Senate impeachment trial.
Most legal experts believe Trump cannot legally forgive himself
In 2018, during a federal investigation into his first presidential campaign, Trump tweeted that he had an “absolute right” to forgive himself. This is probably not true, say many legal experts.
In a column for the Washington Post, constitutional law expert Dale Carpenter argues that a president cannot forgive himself. In Article II of the Constitution, Carpenter writes, the president’s pardoning power does not include “Cases of Impeachment”. This, he argues, is partly linked to the creators’ desire to separate American democracy from a monarchy, which is why they have limited the executive’s pardoning power.
Self-forgiveness would also violate laws against acting as your own judge, reports NPR’s Nina Totenberg. As Jane Coaston explained to Vox when Trump first declared that he could forgive himself:
As my colleague Sean Illing detailed in April, a potential obstacle to presidential pardon could be in the Constitution’s “caution clause” – the president “must see to it that the Laws are faithfully enforced” – which some scholars consider the president not to he could forgive himself, as this is inherently in his own interest.
Fordham law professor Jed Shugerman says: “Clearly, forgiveness to yourself is a violation of fiduciary duty because it is manifestly selfish. But if a president managed to do that, the next administration could try to sue the president, which would force a court to examine the president’s forgiveness and decide whether or not he was an invalid on the basis of violating his fiduciary duty to serve people’s best interests. about yourself. “
That is why President Richard Nixon was unable to forgive himself after his resignation – as Coaston notes, “during the Watergate scandal, the Justice Department decided that presidents could not, in fact, forgive themselves, because ‘no one you can be a judge in your own case. ‘”(President Gerald Ford later forgave Nixon in the name of national unity and“ tranquility ”.)
That said, Trump and his family also face a number of potential lawsuits in New York. New York Attorney General Letitia James filed a lawsuit against the Trump Organization in August and is investigating the family’s financial transactions in the state. The Manhattan district attorney’s office, Cy Vance, has also been investigating the organization and its use of tax breaks. Trump also faces class action from ex-tenants on Trump-owned properties.
None of these local and state actions would be affected by personal forgiveness. So even if Trump tries one last unprecedented move on his way out the door, it won’t end his or his family’s legal problems.