President Trump has suggested to advisers that he wants to forgive himself in the last days of his presidency, according to two people with knowledge of the discussions, a move that would mark one of the most extraordinary and untested uses of presidential power in American history.
In several conversations since election day, Mr. Trump has told advisers that he is considering forgiving himself and, in other cases, asked if he should and what would be the legal and political effect on him, according to the two people. It was not clear whether he had raised the issue since he urged his supporters on Wednesday to march on the Capitol, where some broke into the building in a mob attack.
Mr. Trump has shown that his level of interest in forgiving himself goes beyond idle thinking. He has always claimed that he has the power to forgive himself, and his research of his advisors’ opinions is typically a sign that he is preparing to fulfill his goals. He is also increasingly convinced that his perceived enemies will use the law enforcement levers to attack him after he leaves office.
No president has forgiven himself, so the legitimacy of possible self-pity has never been tested in the justice system, and lawyers are divided over whether the courts would recognize it. But they agree that a presidential pardon can set a dangerous new precedent for presidents to unilaterally declare that they are above the law and isolate themselves from being held responsible for any crimes they have committed in office.
A White House spokesman did not respond to a request for comment.
Mr. Trump considered a series of preventive pardons for the family, including his three oldest children – Donald Trump Jr., Eric Trump and Ivanka Trump – for Mrs. Trump’s husband, senior White House adviser Jared Kushner and for close associates such as President Rudolph W. Giuliani’s personal lawyer. The president expressed concern to advisers that a Biden Department of Justice could investigate all of them.
Mr. Trump, who told advisers how much he enjoys having the power to grant clemency, for weeks asked advisers and allies for suggestions on who to forgive. He also offered preventive pardons to directors and administrative staff. Many were surprised because they did not believe they were in legal danger and thought that accepting their offer would be seen as an admission of guilt, according to the two people.
Presidential pardons apply only to federal law and offer no protection against state crimes. They would not apply to charges that could be made by prosecutors in Manhattan investigating the Trump Organization’s finances.
Discussions between Trump and his advisers about a personal pardon came before his pressure over the weekend on Georgia officials to help him try to overturn election results or his incitement to Capitol riots. Trump’s allies believe that both episodes have increased Trump’s criminal exposure.
While advisers asked Trump to issue a strong conviction on Wednesday and he rejected that advice, White House lawyer Pat A. Cipollone warned Trump that he could be legally exposed for the riot, as he had urged his supporters to march to Capitol and “fight” beforehand, according to people informed about the discussion. The president had appeared to White House advisers to be enjoying watching the scenes on television.
Furthermore, the extent of Trump’s criminal exposure is unclear. Special attorney Robert S. Mueller III outlined 10 cases in which Trump may have obstructed justice, but declined to say whether he broke the law, citing legal and factual restrictions on prosecuting an incumbent president. Former Justice Department officials and legal experts said several of the acts should be prosecuted.
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In 2018, federal prosecutors in New York appointed Trump as a conspirator in an illegal campaign financing scheme.
Forgiveness can be broad or restricted. White-collar defense lawyers said Trump would be best served by citing specific crimes if he forgave himself, but such details could be politically damaging in suggesting that he was acknowledging that he had committed those crimes.
Self-forgiveness would complicate the already worrying question from the Biden Department of Justice about the possibility of investigating and ultimately prosecuting Mr. Trump. Democrats and former Justice Department officials say that if the president forgives himself and the Justice Department refuses to prosecute Trump, it will send a worrying message to Americans about the rule of law and future presidents about his ability to disrespect the law.
“The Biden Department of Justice will not want to agree with Trump’s pardon, which implies that the President is literally above federal law,” said Jack Goldsmith, a Harvard law professor and former Justice Department official at George W. Bush administration.
Forgiveness itself would align with Mr. Trump’s unprecedented use of forgiveness. Constitution writers gave the president almost complete authority to grant clemency for federal crimes, placing the head of the executive branch as a brake on the judiciary and as someone who could enter the justice system to show grace and mercy to the oppressed.
But Trump avoided the formal Justice Department process created to ensure that pardons are distributed fairly. Instead, he used his forgiving power unlike any other president to help his allies, undermine rivals and promote his own political agenda. Of the 94 pardons and commutations that Trump granted, 89% were issued to people who had a personal connection with Trump, helped him politically or whose case resonated with him, according to a Goldsmith tab.
The only president to receive forgiveness was Richard M. Nixon. A month after Nixon stepped down, his former vice president, President Gerald R. Ford, forgave him for all the crimes he committed in office. The measure was widely criticized at the time for allowing the presidency to hover above the law. Ford’s supporters later blamed forgiveness for his defeat in the elections two years later, although in the end forgiveness was seen as a measure that helped the country leave Watergate.
Mr. Trump has stated throughout his presidency that he has the authority to forgive himself and first discussed the possibility with advisers already in his first year in office. These discussions began when his campaign’s ties to Russia were being examined and investigators were examining whether he had obstructed justice.
Lawyers are less certain about Mr. Trump’s statement that he has an “absolute right” to forgive himself.
The Justice Department said in a brief opinion in August 1974, just four days before Nixon resigned, that “it seems” that presidents cannot forgive themselves “under the fundamental rule that no one can be a judge in their own case”.
But the president is not subject to these views and nothing prevents Mr. Trump from signing a pardon for himself. The questions would be whether another president’s Justice Department would honor the pardon and overturn any potential Trump lawsuit and, if he were sued, whether the justice system would ultimately decide whether the pardon isolates Trump from facing the charges.
“Only a court can invalidate a personal pardon, and it can only do so if the Biden government opens a case against Trump,” said Goldsmith. “Trump’s pardon would therefore make it more likely that the Biden team will sue Trump for crimes committed in office.”
During Trump’s presidency, he and his allies sought forgiveness as a way to help the president protect himself in criminal investigations. During the investigation in Russia, Trump and his personal lawyer John M. Dowd offered pardons to former advisers. One of them, his former campaign president, Paul Manafort, flouted a court agreement to work with prosecutors.