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US President Donald Trump never admits he makes mistakes. This theme is arguably the only consistent aspect of his eventful four-year presidency. This is also the reason why a self-forgiveness is unlikely to emerge during his last days in office. A presidential pardon before a conviction or arraignment implies an admission of wrongdoing, which is anathema to Trump’s authoritarian nature and the pathology of denial.
The president also knows that self-pardon only grants him immunity from federal prosecution, not state prosecution. So, the Manhattan District Attorney’s ongoing investigation of Trump and his family for tax evasion, fraud and financial crimes could still lead to state charges after the president’s return to privacy, even though he forgave himself.
Indeed, a self-forgiveness could increase Trump’s exposure to a state lawsuit. Because a pardon protects the recipient from prosecution for a federal crime, he cannot invoke Fifth Amendment law against self-incrimination to avoid being sued in Congress or a federal grand jury. And if Trump is lying, which he has been inclined to do in the past, it would be a new crime that his self-forgiveness would not cover.
That said, the constitutionality of a president’s power of self-pardon has never been tested in the courts.
Article II, Section 2 of the US Constitution grants the President the power “to grant stays and pardons for offenses against the United States, except in the event of impeachment.” A pardon removes the particular criminal act from an individual’s record, thus protecting them from any future criminal liability for that same act.
As early as President Richard Nixon’s Watergate scandal – which stemmed from attempts to cover up his administration’s involvement in a break-in at the Democratic National Committee headquarters – jurists were debating the constitutionality of a presidential self-pardon without consensus clarification.
Those who support the legality of self-pardon cite the opinion of the United States Supreme Court in the Ex parte Garland case, published in 1866, concluding that the president’s pardon is unlimited and that: ” Congress can neither limit the effect of its pardon, nor exclude from its exercise any category of delinquents. “In addition, the constitutional review of the abuse of executive power is impeachment by the House of Representatives and trial in the Senate, making restrictions on pardoning power unnecessary.
Although the unlimited executive power to pardon has been reaffirmed in other Supreme Court cases, the facts have always involved presidential pardon to others, not to the president himself. Thus, a self-pardon from Trump would be the first of more than 20,000 cases of presidential pardons in the United States.
Legal scholars who argue that self-forgiveness violates the US constitution insist on the basic structure of the document that prohibits personal transactions. Allowing a president to forgive himself would violate the rule of law principle that one cannot be his own judge. Moreover, as the Chief Justice of the Supreme Court Marshall pointed out in 1833, a forgiveness is “an act of grace” and mercy towards another. Following this reasoning, a literal interpretation of “grant” is an act between two different people – a grantor and a beneficiary.
Despite these persistent disagreements within the legal community, the most likely explanation for the lack of self-pardons is political, not legal. Nixon, who resigned before he could be arraigned, would have effectively admitted his illegal involvement in the Watergate scandal if he had issued a self-pardon.
Likewise, George HW Bush, who has been investigated for his role in the Iran-Contra affair, should have admitted that he played a role in the scandal that led to the conviction of senior officials. of its administration. Self-forgiveness would have tarnished Bush’s legacy and left him in history as a weak and corrupt leader.
Instead, these presidents either leaned on their successors to forgive them, as Nixon did with President Gerald Ford, or did not prosecute as in Bush’s case with President Bill Clinton.
This brings us to the most likely reason Trump won’t issue self-forgiveness – President-elect Joe Biden’s lack of political appetite for more division. Biden inherits a highly polarized country that is still reeling from an attempted insurgency by a burgeoning far-right movement. The same movement forms Trump’s political base and rejects the legitimacy of Biden’s electoral victory. Judging their leader would only fuel their conspiracy theories and encourage them to continue to glorify Trump as a white savior.
The last thing Biden wants as he tries to heal a divided nation and pull the country out of an economic recession is the very first criminal trial of a former president who needs nothing more than the spotlight of the media. A high profile lawsuit would only fuel Trump’s accounts of victimization and “witch hunts” that turn the shame of being impeached (twice) into political gain. Indeed, the siege on Capitol Hill on January 6 showed the power of Trump’s influence by inciting his disaffected constituency to violence.
But just as Trump refuses to admit that his inflammatory speech endangered our democracy, he is not going to forgive himself. For that to happen, Trump would have to admit what most Americans already know – that he is a criminal.
The opinions expressed in this article are those of the author and do not necessarily reflect the editorial position of Al Jazeera.
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