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The United States is going through an unusual transition process between two governments, marked by the refusal of current President Donald Trump to recognize the victory of his rival, Democrat Joe Biden, in the November 3 election.
President-elect complains that his team are not receiving the information they need for a smooth handover, while the still-sitting president shares videos of his accomplishments and unsubstantiated allegations of electoral fraud on social media .
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In this context, one of the activities that Trump has undertaken, and which is common in the last days of a president’s tenure, is the granting of pardons or commutations of sentence.
Last week, on Christmas Eve, the president announced these acts of mercy for dozens of people, including several of his closest allies, such as Roger Stone and Paul Manafort.
More pardons are expected by January 20, when Joe Biden will take office.
And some wonder if Trump will choose to grant himself a pre-emptive presidential pardon to protect himself from any lawsuits against him once he leaves office and loses the immunity that currently protects him.
Such a concession would be unprecedented, but can he do it?
“I don’t know, nobody knows, it’s never been tried,” says Steven B. Duke, professor of law at Yale University, in an interview with BBC World.
“I don’t think I’m going to do it, honestly. If he pardoned himself, he virtually admits that he committed a federal crime,” he adds.
As the academic points out, no president has ever forgiven himself, and therefore no case has given the Supreme Court a chance to rule on the matter.
In the absence of precedent, theorists refer to the American Constitution in an attempt to reach a conclusion.
In its article II, the Constitution gives the president the power “to grant pardons and acquittals for crimes against the United States, except in the event of indictment.
Experts who believe the president can be forgiven point out that the constitutional text is worded broadly and contains no explicit exceptions that prevent the use or abuse of this power.
The fact that the founders made a specific exception for impeachment cases, they say, implies that they did not want to include other caveats.
This view was defended in 2018 by Andrew C. McCarthy, a member of the conservative National Review Institute and former deputy attorney for the Southern District of New York, as part of Special Prosecutor’s Robert Mueller’s investigation into Russian interference in the 2016 elections.
According to McCarthy, the so-called fathers of the Constitution knew they allowed presidential self-pardon when they drafted the text.
“If they had wanted to prevent a president from being able to block their federal prosecutions, just as they did for their own impeachment, they would have done it,” he said.
In 2018, he tweeted that he had the absolute right to forgive himself, adding that he wouldn’t have to use it since he hadn’t committed any crime.
On the other hand, some academics argue that the word “bestow or bestow” should be interpreted as an act by which one person gives something to another, so that a president could not grant himself a grace. -even.
So says Asha Rangappa, lawyer, former FBI agent and professor at Yale University.
Whether or not a president can pardon 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 of a beneficiary, “Rangappa told BBC World.
“And, in practical terms, allowing a president to forgive himself would put him above the law, which is incompatible with the presidential duty to” see that the laws are faithfully enforced “and with the intention of the authors. of the constitution, who wanted to design a government based on the rule of law.
A preventive grace?
Another element that is drawing attention in the debate about what Trump can and cannot do is the use of the adjective “preventive” to talk about potential self-forgiveness.
In the United States, presidential pardon can be granted before there is a charge or conviction.
The Supreme Court established it in 1866 when it held that the power of pardon “may be exercised at any time after the commission of the crime, even before legal action, during trial, or after conviction and trial.
It is unusual for a President to grant a preventive pardon before charges are laid, but there are examples, the most famous being the pardon granted by Gerald Ford to Richard Nixon in 1974, which we will discuss later.
And in 1977, on his first day in office, Jimmy Carter pardoned hundreds of thousands of men who had escaped recruitment 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
Although there is no precedent in the United States for a preemptive presidential autopardon, Mr. Trump is not the first to consider this possibility.
Richard Nixon raised it in 1974, at the height of the Watergate scandal.
Although he ultimately decided not to do it, Nixon – who was a lawyer – believed that self-grace was in his powers as president.
The Justice Ministry’s legal counsel’s office contradicted him by releasing a report that 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 preventive pardon “for all federal crimes he committed or may have committed” during his tenure. It thus eliminated any possibility of prosecution.
Out of reach of forgiveness
The word “federal” in Ford’s pardon for Nixon is essential and affects Trump’s case as well.
The presidential pardon only covers crimes that fall under federal law and not those that fall under state jurisdiction.
While Trump has not been formally charged with any crime, there are at least two ongoing investigations by New York City officials.
Manhattan District Attorney Cyrus Vance and New York Attorney General Letitia James are investigating potentially criminal behavior related to Mr. Trump’s business practices before he became president.
Any accusation or conviction arising from these investigations, or any other at the local or state level, would go beyond the framework of a presidential pardon.
In this regard, Steven Duke believes that self-pardon can become a weapon against Trump himself as he can mobilize state prosecutors to prosecute him.
“In that case, he will almost certainly be prosecuted at the state level, possibly multiple times,” says the Yale professor.
In this context, what options remain for Trump to avoid a possible pardon without prosecution?
“He doesn’t really need to forgive himself, because the natural thing for a president would be to come to an agreement with his vice-president: the president resigns and the vice-president promises to forgive him by temporarily taking the presidency”, says Mark Tushnet, professor emeritus of law at Harvard University.
“This could, of course, mean the end of the vice president’s political future, but in the current situation, the vice president [Mike] Pence probably doesn’t have much of a political future anyway, “Tushnet tells BBC Mundo.
For Professor Duke, the best option for Trump is to do nothing as he considers it unlikely that Biden’s government will prosecute him.
“First of all, the new government will have a hard time prosecuting him and getting a jury to convict him. Let’s not forget that Trump has over 70 million supporters,” says Duke.
“Second,” he adds, “Biden insists he wants to heal the relationship between Democrats and Republicans to get things done. Charging Trump would not help this cause.