(CNN) — Excuse me.
It’s something you ask someone else for something you’ve already done. And so, more or less, is how pardon has been seen in the Constitution.
But each day brings new reports on how President Donald Trump could creatively modify the limits of his broad clemency power not only to protect himself, but also to protect his children and his closest associates from future legal problems, all measures that would test the spirit of that power and legal precedent.
Trump has yet to acknowledge his electoral defeat, but he is clearly looking out the door. We have heard about your interest in using the power of pardon on yourself, a prophylactic application that is not specifically prohibited, but which would betray the legal principle of judging yourself.
We also learned Tuesday that the Justice Department is investigating a possible bribery scheme in exchange for a presidential pardon, though the details are few and no charges have been filed. CNN has also reported on Trump’s consideration of pardoning:
- Ivanka Trump and her husband, Jared Kushner, who worked for him on his campaigns and in the White House.
- Donald Trump Jr. and Eric Trump, who helped with his campaigns and ran his businesses and his now-defunct charity.
- Rudy Giuliani, who sought negative information about Joe Biden from foreign governments and has been Trump’s attorney.
Trump has already pardoned his former National Security adviser Michael Flynn, who twice pleaded guilty to lying to the FBI but had not yet been convicted, for any and all crimes related to the special counsel investigation.
What potential self-pardon, the specter of family pardons, and Flynn’s pardon share is that they pre-empt future prosecutions.
Why do we have pardons?
Frank Bowman, a constitutional expert at the University of Missouri School of Law, has written a forthcoming study, “Presidential Pardons and the Problem of Impunity,” and traces the history of the power of clemency back to the British.
How did with a previous book on impeachmentBowman makes distinctions between the principle adopted in the United States for a presidential pardon and that of the royal pardons employed by British kings.
It speaks in particular of Charles II, who as king after the Restoration in the 1660s was short of cash and had trouble getting money from Parliament. On behalf of the king, the Earl of Danby offered to keep the British out of France’s war with the Dutch in exchange for cash payments to the king. (Let’s talk about a quid pro quo: we will stay out of your war. Just pay our King. He could also convert the country to Catholicism).
Parliament indicted Danby. Carlos pardoned him. It was controversial. Years later, Parliament found a way to remove impeachment from the power of pardon when William and Mary took the throne. Today, that same warning about the power of clemency is found in the United States Constitution. But other than that, the editors gave the president great authority.
History of pardons
Until now, the power of pardon has been used sparingly. The largest pardons were President Andrew Johnson’s pardon for former confederates and President Jimmy Carter’s pardon for evaders from military service after Vietnam.
The most extensive was the general pardon from President Gerald Ford to his predecessor, Richard Nixon. Issued a month after Nixon’s resignation, the idea was that the country should move on.
Bowman points to a Supreme Court case, Ex parte Garland, which involves former confederates in public office. The court referred to the almost unlimited power to pardon. “It extends to all crimes known by law and can be exercised at any time after its commission, either before legal proceedings are initiated, during their processing or after conviction and trial,” he said.
That 1886 wording, “at any time after his commission,” would suggest that Trump could pardon people for things they have done for which they have not yet been charged, as Ford did with Nixon, but not for crimes that are not yet charged. have been committed. So is it possible for new crimes to come to light? Clear. Would a Trump pardon work to stop his prosecution? That is less clear.
Why would Trump have to grant pardons?
The fact that the pardon presumes guilt has been identified as a flaw in the idea, although Trump has convinced both himself and his followers that the “deep state” has been rigging elections and subverting his presidency that could easily be justified. himself in the sense that each and every charge brought against him or those closest to him would be a fraud.
In mid-November, Biden suggested that he would like to move out of the Trump era and look forward. Moderate Republicans like former Rep. Charlie Dent of Pennsylvania have argued that Trump already paid a political price. And that “impeachment will forever be a stain on Donald Trump’s record, reputation and legacy. And it will hurt.
Bowman agreed that the Biden administration might hesitate to go after Trump.
Presidential pardons have limits
“A Biden Justice Department will be very cautious about indicting a former president, even Trump. As they should be, ”Bowman said. “Putting aside the bad precedent it could create for a cycle of legal retaliation after the elections, it would be a huge distraction, and convicting a guy who got 70 million votes would be very difficult, regardless of the strength of the evidence. And the last thing you want is an accusation and an acquittal, “he explained.
However, it is important to remember that presidential pardons are of no use in civil proceedings and state courts, according to Bowman. They also can’t stop Congress, and perhaps more likely a criminal investigation will be Congressional investigations led by House Democrats.
Most of the president’s current legal problems are at the state level in New York. There, Manhattan District Attorney Cyrus Vance investigates Trump’s finances, his tax evasion, his charity, and his involvement in secret money payments to women who have allegedly had affairs with him. But we also do not know the full extent of Trump’s actions, or of the activities of his children or Giuliani.
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