It has been a month since the U.S. election on November 3.
Although current President Trump has still not admitted defeat and continues to push legal proceedings in many states, Biden’s victory is basically settled. As “President-elect”, Biden has begun to prepare for his White House in all aspects, including forming a transition team, nominating cabinet candidates, and forming an inaugural committee to prepare for the inauguration ceremony on January 20 next year.
This also means that if everything goes well, Trump will need to officially leave the White House on January 20 next year to become one of the few presidents in American history who has not been re-elected.
But until January 20 next year, Trump’s power as President of the United States will remain largely unaffected, including the recently high-profile “right to pardon”.
Recently, Trump first used his pardon power to pardon Michael Flynn, a former national security adviser who lied in the “Russia” investigation, and then was exposed by the U.S. media that he was considering granting early pardon to his three children, females and private lawyers, including himself. At this sensitive moment, the U.S. media revealed that the Department of Justice was investigating the possible problem of “bribery for immunity” in the White House, but Trump called it “fake news”.
What exactly is the pardon power of the President of the United States? Can he forgive his children or even himself in advance?
Explanation 1: How much is the pardon power of the President of the United States?
The right of pardon is a power vested in the President by the U.S. Constitution and is considered a way to show “mercy” and “serve the public interest”.
The right of pardon is usually granted to those who have been prosecuted, but it can also pardon the behavior of a specific person who has not yet entered the legal process. Specific forms include revocation of criminal conviction, commutation of sentence, probation, exemption from fine, etc. It is worth noting, however, that the presidential pardon powers apply to all federal crimes except impeachment cases, but do not protect a person from investigation and prosecution by state and local prosecutors.
Generally, requests for administrative pardons are referred to the Amnesty Attorney’s Office under the Ministry of Justice for investigation and review, but the President can bypass this office. According to the regulations, other government departments cannot review the pardon, and the president does not need to give reasons for pardoning someone.
On November 25 this year, Trump announced on Twitter that he would “completely pardon” Michael Flynn, without giving any reason. CNN pointed out that as the inauguration day of the new president on January 20 next year approaches, Trump is expected to pardon a large number of loyal people in the coming period.
Explanation 2: Can Trump pardon people he wants to forgive early?
This is OK.
Trump recently discussed with his aides to pardon his three children (Donald Jr., Eric, Ivanka), female Kushner and personal lawyer Giuliani before leaving office, citing fear that the “president-elect” Biden’s Department of Justice will retaliate against his family.
According to the Capitol Hill, Trump’s eldest son Donald Jr. had been investigated in the “Russia” investigation. He was accused of obtaining information about Democratic presidential candidate Hillary Clinton through Russia before the 2016 election, but he was not formally questioned or prosecuted.
When Trump’s female marshal Kushner was investigated for security clearance, she provided false information to federal agencies about overseas contacts, which was suspected of federal crimes. Giuliani is currently facing an investigation by federal prosecutors, mainly focusing on his business dealings with Ukraine and the dismissal of former U.S. Ambassador to Ukraine Jovanović. But it is not clear where Trump’s fears about the alleged crimes of his eldest daughter Ivanka and his second son Eric come from.
The New York Times pointed out that in theory, the current president can give early pardons to those he wants to pardon. In President Andrew’s 1866 case of pardoning Confederates (Ex parte Garland), the Supreme Court said that the power of pardon “applies to any crime prescribed by law and can be committed at any time after the commission of this crime, including pending trial before legal proceedings. Period or after conviction and sentence”.
The most famous case is that President Ford pardoned former President Nixon immediately after he took office in 1974, so that Nixon could avoid being prosecuted for investigation for the Watergate scandal.
This also means that although several of Trump’s children and Giuliani are not officially in legal proceedings, Trump can also pardon them in advance to avoid facing prosecution for some of the things they have done before. However, the New York Times said that although the constitution does not prohibit the president from pardoning his family and cronies, it is expected that such behavior will cause political controversy.
Explanation 3: Are people who are pardoned early from all risks?
This is not the case.
First of all, early pardons can prevent pardonees from being prosecuted for things they have done before, but they will still face prosecution if they commit new crimes after pardon.
Secondly, as mentioned earlier, the presidential power of pardon only applies to federal crimes, and state prosecutors can still investigate the pardoned person if their behavior violates state laws. For example, tax evasion, financial fraud and other crimes are both at the federal and state levels, so it cannot be prosecuted at the federal level, and the state level can continue to investigate and prosecute. At present, New York State prosecutors are investigating a number of issues related to Trump’s finances.
In addition, the New York Times pointed out that the right of pardon may also add a risk that although the pardoned person can no longer be prosecuted for the federal crime previously involved, he also loses the right to use the Fifth Amendment to remain silent. That is, when summoned by Congress or grand jury, the pardoned person must speak – and if they lie or refuse to testify, they commit a new crime.
Explanation 4: Can Trump pardon himself early?
It’s not clear at present.
According to CNN, Trump has discussed the topic of early pardoning himself with his aides many times before, and even said that he has “full power” to pardon himself. But in fact, this issue has always been controversial.
In the history of the United States, no president has tried to pardon himself, so the Supreme Court has no chance to resolve the dispute. Without precedent, the American legal community disagrees on this issue. Proponents believe that the constitution does not stipulate that the president cannot use the right of pardon for himself, the only exception is impeachment, which means that the founding fathers of the constitution do not believe that other exceptions are needed.
However, opponents believe that the words used by the founding fathers of the constitution are “grant”, which means that the right of pardon is a power granted by one person to another, so the president who granted the pardon himself cannot be called the grantee. Other legalists point out that self-pardonment is unconstitutional, because it violates the basic principle that no one can be a judge in his own case.
According to Reuters, Brian Calter, a professor of constitution at Michigan State University, said, “When people ask me if a president can pardon himself, my answer has always been – ‘He can try'” and “the Constitution does not provide a clear answer to this question.”
But there is still a possibility for this problem. In 1974, because Justice Department lawyers said that President Nixon could not pardon himself, but he had a constitutional choice – he could use the 25thAmendment to the United States Constitution to temporarily step down, and then the vice president would succeed him as the “deputing president” and pardon him before returning to power. But Nixon did not choose to do so. He resigned directly and was pardoned by his successor Vice President Ford.
Theoretically, Trump can do the same. However, Corey Brett Schneider, a professor of political science at Brown University, said, “I don’t think Pence will want to make this his political legacy.”