Once confined to learned circles, the debate over whether a president can forgive himself has become urgent following the violent storming of the U.S. Capitol by supporters of President Donald Trump last week.
The riots led to Trump’s historic second indictment this week and sparked Democratic calls for a federal inquiry into Trump’s role in inciting violence.
This in turn has renewed the question of whether Trump can use the presidential pardon power against himself in order to evade future prosecution.
House of Commons Speaker Nancy Pelosi of California signs the article of impeachment against President Donald Trump during a rally ceremony before it is forwarded to the Senate for trial on Capitol Hill, Washington, on January 13, 2021.
This is something Trump has touched on in the past. In 2018, facing an investigation by a special advocate into his 2016 campaign’s ties to Russia, Trump said he had an “absolute right” to forgive himself.
But as far-fetched as it sounds, self-forgiveness isn’t necessarily in Trump’s best interests, and advisers have reportedly tried to talk him out of it. Self-leniency can be seen as an admission of guilt, they said. Moreover, it could backfire on us by prompting an otherwise reluctant Justice Department under new President Joe Biden to challenge the pardon and bring charges against Trump, according to legal experts.
Here’s a look at the debate over whether Trump can forgive himself before he leaves office.
Can the president forgive himself?
The US Constitution itself is silent on the issue. Article II of the charter gives the president the power to “grant stays and pardons for crimes against the United States, except on indictment.” This broadly worded text left it open to interpretation.
FILE – The word “impeachment” as it is written in Article II of the United States Constitution is on display in the Freedom Charter Rotunda at the National Archives Museum in Washington.
“No president has ever attempted self-forgiveness, so we have no precedent,” said Jeffrey Crouch, American University law professor and author of a book on the power of presidential pardon. “President Nixon thought about doing it but ultimately chose not to.”
Those who believe that a president can forgive himself argue that there is nothing to the contrary in the Constitution. The American leader, they say, has the power to forgive federal crimes, and if he himself commits a federal crime, then he should be able to forgive himself for that offense.
But those who hold the opposite view and who are in the majority argue that the very act of “granting a pardon” involves a bilateral process involving two people.
“The use of the word forgiveness normally means that one person forgives another. This is how it has been understood historically,” said Steve Mulroy, professor of law at the University of Memphis.
Additionally, Mulroy said, self-forgiveness contradicts a long-standing American legal principle, rooted in English law, that one cannot be a judge in one’s own case.
“So for this reason, while the power to forgive is very broad and the Supreme Court has never made a final ruling, most constitutional scholars would say you cannot forgive yourself,” Mulroy said.
In 1974 the Department of Justice looked into the matter. The answer was no. Self-forgiveness would go against “the basic rule that no one can be a judge in their own case,” the department’s Office of the Legal Counsel wrote in a note.
The memo remains the policy of the Department of Justice.
What would a self-forgiveness look like?
Of course, that doesn’t mean the president can’t try to forgive himself. If he opted for self-leniency, he would likely grant himself “full and unconditional forgiveness,” according to legal experts. Typically, when a president forgives someone, the leniency document spells out the charges for which he forgives them, as was the case with Trump’s recent pardons to several former associates.
In his own case, however, Trump would likely opt for a general pardon, modeled on the pardon of former President Richard Nixon, for all crimes against the United States, said Caroline Mala Corbin, law professor at the United States. ‘University of Miami.
What are the implications of a presidential self-forgiveness?
Never tried before, a self-pardon from Trump could set a potentially dangerous precedent for future presidential conduct, some legal experts say.
“Presidential self-forgiveness would set a terrible precedent and allow presidents to commit the most atrocious federal crimes and simply forgive themselves,” Corbin said.
Those who think a president can forgive himself disagree, however, saying that there are other checks on presidential power, such as impeachment by Congress. In addition, a pardon does not protect a president from legal action.
Can self-forgiveness be legally challenged?
While presidential pardons are permanent and cannot be rescinded, Trump’s self-pardon could face legal challenges in the future.
File – The US Department of Justice headquarters building is seen in Washington, July 13, 2018.
Biden has made it clear that he is not in favor of the Justice Department investigating his predecessor. But if Trump forgives himself, it could prompt the Justice Department to press charges against him if only to test the constitutionality of self-leniency.
The issue could go all the way to the Supreme Court, which has never ruled on the issue, experts say.
“One could easily argue that this was a constitutional law issue that needed to be resolved by the courts and not politically motivated,” Corbin said.
The threat of DOJ action in response to self-forgiveness could in turn deter Trump from considering forgiving himself in the first place, she added.
Can Trump step down and ask Vice President Mike Pence to forgive him?
That remains a possibility even though Trump has made no indication that he plans to step down before his term ends on January 20. There is precedent for a president to receive a pardon from his successor.
In 1974, after Nixon resigned because of the Watergate scandal, his vice president and successor, Gerald Ford, granted him a general pardon for all crimes against the United States. While Ford insisted he do it in the national interest, to critics leniency still resembled Nixon’s “self-forgiveness”.
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