Friday, February 5, 2021
Former US President Donald Trump never admits he makes mistakes. That theme is arguably the only consistent aspect of his turbulent four-year presidency. It is also the reason why a self-pardon is unlikely to emerge during his final days in office. A presidential pardon prior to conviction or indictment implies an admission of wrongdoing, which is anathema to Trump’s authoritarian nature and pathology of denialism.
The president also knows that a self-pardon only grants him immunity from federal prosecution, not state prosecution. Thus, the Manhattan District Attorney’s ongoing investigation of Trump and his family for tax evasion, fraud and financial crimes could still lead to state indictments after the president returns to private life, even if he had pardoned himself.
Indeed, a self-pardon could increase Trump’s exposure in a state prosecution. Because a pardon shields the recipient from prosecution for a federal crime, he cannot invoke the Fifth Amendment right against self-incrimination to avoid being subpoenaed before Congress or a federal grand jury. And if Trump lies, which he has been prone to doing in the past, that would be a new crime which his self-pardon would not cover.
That said, the constitutionality of a president’s authority to self-pardon has never been tested before the courts.
Article II, Section 2 of the US constitution grants the president the authority to “grant reprieves and pardons for offences against the United States, except in cases of impeachment”. A pardon removes the particular criminal act from an individual’s record, thereby shielding them from future criminal liability for that same act.
As far back as President Richard Nixon’s Watergate scandal — which stemmed from attempts to cover up the involvement of his administration in a break-in at the Democratic National Committee headquarters — legal scholars have been debating the constitutionality of a presidential self-pardon without a clear consensus.
Those arguing the legality of self-pardon point to the US Supreme Court opinion in the case of Ex parte Garland, issued in 1866, concluding that the president’s pardon power is unlimited and that: “Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.” Moreover, the constitutional check on executive abuse of authority is impeachment by the House of Representatives and trial by the Senate, making restraints on pardoning power unnecessary.
Although the unlimited executive authority to pardon has been reaffirmed in other Supreme Court cases, the facts have always involved presidential pardon of others, not the president himself. Thus, a self-pardon by Trump would be the first of more than 20,000 instances of presidential pardons in the US.
The legal scholars who argue self-pardon contravenes the US constitution emphasize the basic structure of the document bars self-dealing. To allow a president to pardon himself would violate the rule of law principle that one cannot be one’s own judge. Furthermore, as Supreme Court Chief Justice Marshall pointed out in 1833, a pardon is “an act of grace” and mercy toward another. Following this reasoning, a literal interpretation of “grant” is an act between two different people — a grantor and a recipient.
Despite these ongoing disagreements within the legal community, the most likely explanation for the absence of self-pardons is political, not legal. Nixon, who resigned before he could be impeached, would have effectively admitted to an unlawful involvement in the Watergate scandal if he had issued a self-pardon.
Similarly, George H W Bush, who was investigated for his role in the Iran-Contra affair, would have had to admit he played a role in the scandal that led to the conviction of senior members of his administration. A self-pardon would have tarnished Bush’s legacy and let him go down in history as a weak and corrupt leader.
Instead, these presidents either relied on their successors to pardon them, as was the case of Nixon with President Gerald Ford, or not prosecute as in the case of Bush with President Bill Clinton.
This leads us to the most likely reason Trump did not issue a self-pardon — President-elect Joe Biden’s lack of political appetite for more divisiveness. Biden is inheriting a highly polarised country that is still reeling from an attempted insurgency by a mushrooming far-right movement. The same movement constitutes Trump’s political base and rejects the legitimacy of Biden’s electoral victory. Putting their leader on trial would simply feed their conspiracy theories and encourage them to continue glorifying Trump as a white saviour.
The last thing Biden wants as he tries to heal a divided nation and pull the country out of an economic recession is the first-ever criminal trial of a former president who craves nothing more than the media spotlight. A high-profile prosecution would only feed Trump’s narratives of victimhood and “witch hunts” that would twist the disgrace of being impeached (twice) into political gain. Indeed, the siege on the Capitol on January 6 displayed the potency of Trump’s influence in inciting his disaffected constituency toward violence.
But just as Trump refused to acknowledge his incendiary speech endangered our democracy, he did not pardon himself. For that would have required Trump to admit what most Americans already know — that he is a criminal.
— This article was originally published on Al Jazeera here.