The Constitution contains no explicit prohibition on a president forgiving himself, but some scholars argue that the founders hinted that the power of mercy should not be used for personal matters.
The long-running legal debate, which has gathered pace in recent days amid reports that the president has discussed the idea of self-forgiveness with assistants, has gained new urgency now that Trump has piled up the court with three dyes in the wool. curators: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
While most judges claim to be both textualists – meaning they adhere closely to the literal words of the Constitution – and originalists – who believe that the founders’ intention is crucial in interpreting the law – cleavages sometimes appear. and they could do it again. in a case on the validity of a Trump self-pardon.
“Those who are engaged in the originalist project, looking at the story, would think about what they could have meant,” Ethan Leib, professor of law at Fordham University, said of the founders. “To be true to this meaning means not to do it just to protect yourself.”
However, a strictly literal textualist interpretation of the Constitution could favor Trump, as supporters of limiting his power could be accused of inventing words that are not actually in the text.
Last June, Gorsuch surprised and disappointed many conservatives when he joined the court liberals and Chief Justice John Roberts in a literalist and textualist interpretation that concluded that LGBT people are protected under existing, old law. half a century, against sex discrimination in employment.
While lawmakers who voted for the language in 1964 almost certainly did not think it prohibited discrimination against gays and lesbians, Gorsuch – who wrote for the majority of the court – said such a ban was clearly required. by the words used by Congress. The court’s other three conservatives at the time disagreed, challenging Gorsuch’s interpretation of the law. But they also took a more original approach, arguing that his approach produced a clearly contradictory result with the clear intent of the law.
These loopholes suggest that Trump cannot simply rely on the court’s conservative majority to rule as he wishes.
“It’s definitely a matter of first impression,” Hucek said. “There could be a call for more conservative justice… .which self-forgiveness is not something provided for in the Constitution.
There is a specific exclusion from the president’s pardon power: the Constitution says it does not apply to indictments. Courts and lawyers also generally agree that a president cannot grant a pardon for crimes not yet committed. And because the federal government and state governments are considered separate sovereigns, a presidential pardon would not exempt someone from state crimes. This could be crucial in Trump’s case, with the Manhattan district attorney and the New York attorney general continuing to investigate his business relationship.
One of the first decisions on how to respond to a self-pardon from Trump would go to those appointed by President-elect Joe Biden to the Justice Department. They should decide whether or not to allow federal inquiries into Trump, whether for his potential culpability in the Capitol riot last week, his efforts to rely on state officials to overturn election results. or the series of other potential crimes listed in Special Counsel Robert Mueller. report.
The DOJ’s only public word on the matter came from its Office of the Legal Counsel (OLC) in August 1974, at the height of Watergate. Acting Assistant Attorney General Mary Lawton said such a pardon would not be valid. “Under the fundamental rule that no one can be a judge in their own case, it would appear that the question should be answered in the negative,” Lawton wrote.
However, the memo was obviously drafted in a hurry and was only a “snapshot” of the law and not formal advice. Nixon ultimately opted for a self-pardon, but obtained one in place of his successor, President Gerald Ford.
Hucek, who now works for the Keker & Van Nest law firm, says she believes that if Trump tries to forgive himself, Biden’s Justice Department will quickly reconsider its 46-year-old finding and make the result public.
“Given the notoriety of this issue and its sensitivity, I think the GM leadership will issue some kind of guidance,” she said.
Biden has hinted that he chose Merrick Garland, who is highly regarded by lawmakers on both sides, to give credence to sensitive decisions the Department of Justice may have to make in the coming months on how to deal with various allegations against Trump. A review of the 1974 legal assessment may well end up at the top of the list.
As Biden announced Garland’s choice last week, the president-elect suggested that Trump should face legal consequences for his actions related to the riot on Capitol Hill a day earlier.
“Our president is not above the law. Justice serves the people. It does not protect the powerful. Justice is blind, ”Biden said. “What we saw yesterday, obviously, was another violation of a fundamental principle of this nation. Not only do we see the failure to protect one of the three branches of our government. We have also seen a clear failure to achieve equal justice.
However, Biden also pledged not to get involved in Justice Department prosecution decisions, including whether his predecessor should face charges.
Leib said he agreed with the 1974 OLC memo’s conclusion that a self-pardon would be invalid, but believes it should be based on a broader justification involving the president’s duty to faithfully execute the laws.
The structure of the Constitution and the concerns expressed by the founders about unchecked executive power also support the idea that a president cannot forgive himself, Leib said.
Other scholars have argued that the wording in the Constitution regarding the president’s “power to grant stays and pardons for offenses against the United States” involves forgiving someone else – not to yourself.
Hucek raised a similar concern, speculating on how the flowery language of a self-pardon would be worded. “It would just be worded in a very strange way… he would have to refer to himself in the third person and then sign it,” she said.
It is also unclear how Trump would specify the crimes for which he apologized for responsibility or whether he would attempt a broad pardon, depending on the time, like the one that President Gerald Ford granted President Richard Nixon for all. crimes he could have committed during his tenure.
Trump’s lawyers might also be reluctant to write him a pardon, especially if he seeks to brush aside his conduct before and during the violent attack on Capitol Hill last week.
However, Leib said he suspected a loyal outside lawyer like Rudy Giuliani of drafting the text if lawyers in the White House Lawyers Office refused to help Trump.
“There always seems to be someone there to serve him,” the professor said.
But judges and judges may also have qualms about being given the role of deciding which pardons are legitimate and which are not. In recent days, there has even been speculation that Trump may grant pardons to supporters accused of taking part in the violence on Capitol Hill.
“I think people really need to think about it, what if you learn in an hour [Trump] Did he forgive all those arrested? says Rep. Conor Lamb (D-Pa.). “The powers of his office probably allow him to do that.”
Trump’s critics have attempted, unsuccessfully, to challenge some of his past pardons. Last month, a judge dismissed Trump’s claim that Trump’s pardon to former national security adviser Michael Flynn was “corrupt” and invalid due to the fact that the investigation Flynn admitted to lying was focused on Trump.
Leib said that regardless of the judges’ opinions on Trump or the constitutional interpretation, he thinks they are unlikely to reject Trump’s self-forgiveness, as many members of the current court buy into the vision. of a largely free presidency.
“If it ever goes to the Supreme Court, there’s a pretty strong executive power group up there right now,” the professor said. “They might even come to our notice [about limits on the pardon power], but decide that it is not enforceable in the courts… The idea that Clarence Thomas and Brett Kavanaugh will vote to deactivate a presidential power seems exaggerated to me.