PRESIDENT Donald Trump tweeted on June 8, 2018: “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!”
With the defeat of the outgoing 45th President of the United States comes a reality he cannot escape. He loses the shield against all the charges awaiting to be filed against him for his alleged personal, financial, and other transgressions against the Constitution and the rule of law just because of the DOJ memorandum that says no seating president can be indicted.
This was why Trump was not charged for obstruction of justice in the Mueller investigation, and for other crimes related to sexual abuse allegations, as “Individual 1” in a court filing on campaign finance crimes that has convicted and sent Trump’s personal lawyer and fixer Michael Cohen to prison, and for other crimes, misdemeanors and violations related to the campaign, elections, business before and while in office, and his” charitable” foundation.
Among others, Politico reported on these crimes: “Trump has faced legal scrutiny throughout his administration for a variety of alleged misconduct related to his acceptance of foreign government money through his luxury Washington hotel, his participation in dubious tax schemes while building his real estate empire, and his involvement in a hush money payment to a porn star in the run-up to the 2016 election — which resulted in federal prosecutors implicating him in his former attorney’s campaign finance crimes.
“Meanwhile, Trump has also drawn significant criticism from congressional Democrats and former federal law enforcement officials, who charge that the president has sought to manipulate the Justice Department to advance a political agenda and serve his personal interests rather than those of the nation.”
“A possible pardon of Trump by Biden would represent the second such exoneration of a former president by his successor in modern American history. President Gerald Ford famously pardoned Richard Nixon in 1974 after Nixon resigned from the presidency amid the Watergate scandal, facing the imminent threat of impeachment and removal from office.”
This is why the issue of pardon had been much talked about especially as the countdown to Trump’s departure from office is concerned.
And with the clemency Trump has bestowed against his close associates including Michael Flynn, the New York Times reported that the president has been in talks with his advisers about granting pre-emptive pardons to his children and his personal lawyer Rudy Giuliani. He is concerned that incoming President Joe Biden “might seek retribution against the president by targeting the oldest three of his five children — Donald Trump Jr., Eric Trump and Ivanka Trump” as well as Ivanka’s husband Jared Kushner, a White House Senior Adviser.
Why the concern? First of all, if his children did not commit any crime, why the need for a “pre-emptive” pardon? Secondly, is Trump projecting his own sense of vindictiveness onto Biden and his unbridled abuse of executive power without regard to fact, the truth, and the rule of law for his personal agenda?
But could Trump pardon himself? Should the 46th President of the United States Joe Biden grant Trump pardons and clemency to unify the nation, as called for by some of his supporters?
Before we discuss that, let us revisit the technical definitions of the terms. As AZ Central discussed, “Clemency refers to multiple forms of presidential mercy. The two most common forms are pardons, which forgive past crimes and restore civil rights, and commutations, which completely or partially reduce sentences for those in prison or on community supervision.”
“Two less-common forms are remissions, which reduce financial penalties associated with convictions, and respites, which are temporary reprieves that are usually granted to inmates for medical reasons.”
The Pew Research Center wrote that, “While rare so far, Trump’s use of presidential clemency has caused controversy because of the nature of his pardons and commutations. Many of Trump’s clemency recipients have had a “personal or political connection to the president,” according to a July analysis by the Lawfare blog, and he has often circumvented the formal process through which clemency requests are typically considered.”
Worse, National Public Radio (NPR) reported that “the Justice Department is investigating a possible secret scheme involving a bribe in exchange for a presidential pardon,” and this is according to court documents unsealed Tuesday, December 1.
This is the culture of corruption that has been fostered in Trump’s presidency, enabled and condoned by the Republicans in Congress and his appointees in the executive department just to stay in power.
So, going back to the question: Could Trump pardon himself? The Washington Post reported:
“Article II, Section 2, of the Constitution says that presidents ‘shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.’ The Supreme Court has held that this power is unreviewable, writing in United States v. Klein that the president’s pardon power ‘is granted without limit’ and reiterating that ‘Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.’ Because pardons are a combination of mercy and largesse, they’re often issued with abandon when a president is preparing to leave office.
“The Constitution, however, and the nature of what a pardon actually is make this claim of absolute authority legally meaningless. A presidential pardon is a kind of deed. Like the deed to a house, it must be given and received; delivered and accepted. The president can no more autoimmunize himself from future prosecution than he can sell himself Trump Tower or nominate himself for the Nobel Peace Prize. Without two parties, it is both illogical and illegal. As a 1974 Justice Department Office of Legal Counsel memo put it: ‘Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.’”
The Post made a very important point, though, and this would apply as well to Trump’s reported giving pardon to his children and son-in-law, as well as other associates like Giuliani.
“A bigger problem, though, for Trump, would be that such a deal not only would make Trump look guilty but would be a tacit admission that he was guilty. There is a popular misconception that a pardon is an exoneration — perhaps that’s why Trump granted posthumous pardons to boxer Jack Johnson and suffragist Susan B. Anthony.”
“But a presidential pardon is not an exoneration. At least as far back as 1915, the Supreme Court has articulated that it carries “an imputation of guilt and acceptance of a confession of it.” In other words, if you accept a pardon, you acquiesce to your guilt to be free from the legal consequences.”
Should Biden grant clemency to Trump as suggested by some of his supporters in the name of unity — the very essence of the message and call of the president-elect to the American people?
In a town hall meeting during the presidential campaign, Biden already gave a firm answer to this very question. He pledged that he would not use his new executive powers to pardon President Donald Trump of any potential crimes.
Biden’s rationale behind this commitment alluded to the Department of Justice’s abandonment of its prosecution of Trump’s former national security adviser, Michael Flynn.
Flynn had pleaded guilty to lying to the FBI about conversations he had with Russia’s ambassador to the U.S. during the transition before Trump’s inauguration.
Biden also cited the case of Roger Stone. “That controversial maneuver by Attorney General William Barr came after DOJ in February intervened in another prominent case brought by former special counsel Robert Mueller — revising the sentencing recommendation for Roger Stone, Trump’s longtime informal political adviser, after the president blasted government prosecutors’ initial proposal,” as reported by Politico.
“We never saw anything like the prostitution of [the presidency] like we see it today,” the report said, adding that Biden contended that “what’s going on is an absolute travesty. A travesty of justice.”
“It is not something the president is entitled to do, to direct either a prosecution and/or decide to drop a case,” he said. “That is not the president’s role, responsibility. And it’s a dereliction of his duty.”
INDEED, if we truly want to restore the soul of America and reclaim what is true, what is fair and what is just in our country, then Trump should be made accountable for all his transgressions against the Constitution and the American people.
I opine that even his minions in the legislature and the executive who enabled and condoned him in his abuse of power should also be made accountable. This is especially true for the Republicans in Congress who failed to perform their Constitutional obligation to provide checks and balances to the executive branch in order to protect our democracy.
Giving him clemency sends the message that the President is above the law, and that is a very dangerous precedence given all the ways Trump has used and abused the power and public trust accorded to him by the Office the President of the United States.
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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.
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Gel Santos Relos has been in news, talk, public service and educational broadcasting since 1989 with ABS-CBN and is now serving the Filipino audience using different platforms, including digital broadcasting, and print, and is working on a new public service program for the community. You may contact her through email at [email protected], or send her a message via Facebook at Facebook.com/Gel.Santos.Relos.
