TORONTO – When the President of the United States, Donald Trump, leaves the White House, he may be vulnerable to a series of investigations and possible charges for any criminal acts he may have committed during the term, or even earlier.
At the federal level, Trump may be open to accusations of obstruction of justice when he is no longer the president, in relation to Special Lawyer Robert Mueller’s investigation into Russian interference in the 2016 elections.
There are also allegations of possible tax fraud and campaign finance law violations that are federal crimes that Trump could face after he was no longer an incumbent president.
While Trump enjoyed the legal protections afforded to an incumbent president, when Democratic President-elect Joe Biden takes office on January 20, he may finally have to face some of these ongoing investigations.
Until that moment, however, Trump retains all of his presidential authority, including the ability to issue pardons. So how can the president use his forgiving power to help himself before being faced with these potential legal challenges?
ARE THERE LIMITS FOR THE POWER OF FORGIVENESS?
According Article II, Section 2, of the US Constitution, the president has the power to “grant extensions and pardons for offenses against the United States, except in cases of impeachment”.
This means that the commander-in-chief can unilaterally forgive someone for their crime, or commute or reduce their sentence after conviction.
That is why pardons are often considered to be one of the most powerful and comprehensive tools in the commander-in-chief’s tool belt.
Graham Dodds, who grew up in the United States and is a professor of political science at Concordia University, specializing in American politics, said there are very few restrictions on the president’s forgiving power.
“It is one of the few presidential powers that really [not very] embarrassed. Courts or Congress cannot do much about it, “he told CTVNews.ca during a telephone interview from Montreal on Wednesday.
This is not to say, however, that there are no limitations.
Dodds explained that while Trump is free to forgive anyone he wants, including his own family and inner circle, for any crime that has been committed while he is in office, this only applies to federal crimes. Or, to return to the aforementioned section of the United States Constitution, “offenses against the United States”.
This means that crimes that violate state law, such as those being investigated by public prosecutor Cyrus Vance Jr. in New York against Trump, cannot be forgiven with presidential pardon.
Another limitation of presidential pardon is that it cannot be used in cases of impeachment, that is, the president cannot use pardon to undo an impeachment of the House or an impeachment sentence from the Senate.
CAN THE PRESIDENT ISSUE PRE-EMPTIVE DAMAGES?
One of the reasons why presidential pardon is so valuable is that it can be used to forgive someone for a federal crime, even if the charges have not been made.
According an 1866 US Supreme Court ruling, the president’s pardoning power “extends to all offenses known to the law and can be exercised at any time after his commission, either before the start of the judicial process, or during his pendency, or after conviction and trial”.
David Dyzenhaus, a law professor at the University of Toronto, explained that the president’s power to preemptively forgive someone means that that person is forgiven for any crime that may have been committed during the period set out in the pardon.
“The president can forgive people for offenses that no one has yet claimed,” he said during a telephone interview with CTVNews.ca on Wednesday.
As for the duration of clemency, Dyzenhaus said it is indefinite.
“Forgiveness is forever,” he said.
COULD TRUMP PARDON SAME?
While the president can forgive anyone for a federal crime, it is decidedly less clear whether he can grant himself clemency.
“It’s an open question,” said Dodds. “The constitution does not clearly say yes or no, there does not appear to be any binding lawsuits that say yes or no.”
Since no president has tried to forgive himself before, the courts have not assessed the constitutionality of such a move.
However, Dodds said that if Trump tried to forgive himself, it would likely spawn a lawsuit that would force the United States Supreme Court to weigh in.
“It goes against the basic idea that you shouldn’t be a judge in your own case, which is the kind of basic idea behind most laws and that would obviously violate that,” he said.
Dyzenhaus agreed that if the president could forgive himself, it would mean that he is above the law.
“It is very much against what we can think of as unwritten principles of the rule of law of constitutionalism,” he said.
COULD VICE PRESIDENT PARDON TRUMP?
Trump’s legal challenges have prompted some to wonder if he could step down before Biden took office so that Vice President Mike Pence could forgive him. If that happens, Dodds said it would not be the first time in American history that a vice president would forgive his predecessor.
In 1974, President Gerald Ford pardoned former President Richard Nixon after his resignation due to the Watergate scandal.
“Forgiveness was for any offense that Nixon may have committed, so ‘I’m not saying you did something wrong, but if you did, you’re fine,'” said Dodds.
If Trump wanted to avoid any legal ramifications after his term, he would have time to resign and be forgiven by Pence before Biden’s inauguration, Dodds said.
COULD BIDEN PARDON TRUMP WHEN HE TAKES OFFICE?
In addition to a last-minute pardon from Pence if he briefly assumed the presidency, Trump could also be forgiven by Biden.
While this may seem like a long shot, Dodds said Ford forgave Nixon in order to move the country forward and away from the Watergate scandal. Although he will likely face strong criticism, Dodds said there may be a possibility of Biden’s forgiveness.
“He would get a lot of criticism, at least from Democrats and Republicans who would say ‘Hey, he didn’t do anything wrong’ and Trump could even protest that way, would it be politically controversial? Yes. In the long run, would it help to leave Trump behind the country? I don’t know, “he said.
Dyzenhaus, on the other hand, said he is not sure whether Biden will make it a point to forgive Trump in light of the president’s behavior after the election and his refusal to accept the results.
“I don’t think there will be much generosity of spirit when it comes to Trump after his term,” he said.
Instead of forgiving him, Dyzenhaus suggested that Democrats may prefer to simply stop pursuing legal charges against Trump after his presidency so they can focus on the future.
“I think people will want to go after him, but that could mean that you give him and his base more oxygen,” he said. “It may be the case that Democrats prefer Trump just to go away and not keep him in the news, chasing him through criminal charges.”
With files from CNN and The Associated Press