Can the President Make Preemptive Pardon a Reality?

The suggestion that Donald Trump will make extensive use of his executive powers as he approaches his exit from the White House seems to be confirmed: on the last full day of his presidency, Trump plans to pardon 100 different political friends. white collar workers and various other recipients, including rapper Lil Wayne, CNN reports .

Historically, the outgoing president has typically demonstrated his authority by showing pardon when he heads for the door. And while the question of whether Trump will try to forgive himself in the final days of his administration remains open, it looks like the president is not on that path yet.

However, the legally dubious self-pardon option still has an appeal, because as soon as the clock strikes noon on January 20, 2021, Trump will no longer be the incumbent president, but will be the man facing an unprecedented array of legal issues. Colossal foreign bank debts and pending investigations by the New York Attorney General’s Office and Manhattan District Attorney are only part of an impending judicial review that could knock Trump’s world off its axis. The authorities have already filed various charges against his children .

Even to this day, there has been no sign that Trump will shy away from using his executive powers to save what he can before the walls close. He was still enthusiastic about pardoning former associates and friends . Previous reports suggested that he even contemplated the idea of ​​pardoning as many as 20 aides and various associates before the expiration of his tenure in the Oval Office, Politico reported . The seeming attempts to protect their employees and family are vast and might raise you the question: can a president – any president – actually grant a preemptive pardon to someone who hasn’t yet been charged with a crime, let alone 20 different people?

The answer, like many others deeply rooted in constitutional studies and legal debate, is subtle. It should be clarified by explaining what a pardon is and how it has been treated throughout history.

What is a presidential pardon?

A presidential pardon is an executive power enshrined in the Constitution, in particular in paragraph 1 of Section 2 of Article II . They refer specifically to the president’s ability to pardon those charged with federal crimes.

As the National Constitutional Center explains:

The President has the right to pardon or pardon in accordance with paragraph 1 of Section 2 of Article II of the Constitution in accordance with the pardon provision. The article states that the president “has the power to grant deferrals and pardons for crimes against the United States, except in cases of impeachment.” While the president’s pardon powers appear to be unlimited, a presidential pardon can only be issued for a federal crime, and a pardon cannot be issued for impeachment cases that have been condemned by Congress.

Those who receive a pardon during trial will no longer be prosecuted, and those already in prison can be released or their convictions removed.

How does a pardon work?

A presidential pardon is when the president protects someone from prosecution for an act that has already taken place. However, they prevent any suspected offender from starting over without fear of repercussions.

As NPR explains :

The president can protect someone from retaliation for what he has already done, even if prosecutors do not notice it later, but not protect someone from prosecution for something he has not done yet, or from harassment by state or local authorities. …

There are different types of clemency. As the NCC points out, presidents have five different types of clemency powers:

A full pardon saves a person from wrongdoing and restores all lost civil rights. Amnesty is similar to a full pardon and extends to groups or communities of people. The replacement mitigates the federal court’s sentence. The President can also impose fines and liquidated damages, as well as grant a stay of execution at the time of sentencing.

Are they common?

While high-profile examples are not necessarily characteristic of every presidential administration, they are certainly not uncommon . Bill Clinton has pardoned 456 people during his two terms in office , many of them cemented in the last hours of his presidency . While most of the people in this number were ordinary Americans who served a hard time after being prosecuted for federal crimes, Clinton still managed to secure two controversial pardons, one of which was for Mark Rich, the Democratic mega-donor accused of evasion. from paying taxes. …

Throughout history, there are other striking examples: George W. Bush pardoned six people involved in the Iran-Contra scandal that occurred during the rule of Ronald Reagan. Perhaps the loudest example in the last century is Gerald Ford’s pardon of Richard Nixon following his resignation following the Watergate scandal. This issue is of particular relevance to American historical memory, largely because it was a preventive pardon since Nixon was not charged with a crime.

As US News & World Report writes: “Ford argued that the pardon was necessary to go beyond the rancor of the Watergate scandal. But the pardon was one of the reasons for Ford’s defeat in the 1976 presidential election. “

Preventive pardon versus conventional pardons

The difference is quite simple: a traditional pardon concerns someone who is charged or convicted of a federal crime, while a preventive pardon concerns someone who has not yet been charged. American University professor Jeffrey Crouch told NPR that the president “does not have to wait for an alleged perpetrator to be indicted, put on trial, and so on” to issue a preventive pardon.

Thus, Donald Trump can certainly issue a preventive pardon, but the more important question is whether he will show the courtesy of a huge cohort of his inner circle before his term expires.

Can the President forgive himself?

There is no single answer to this question. This is a question with no historical precedent and is currently shared by legal scholars. In the absence of formal law providing a legal basis for addressing this issue, it remains to be seen if Trump will try again to go where no president has been before.

This post was originally published in December 2020 and has been updated on 1/19/21 to reflect the latest news events.

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