TORONTO – Days before the end of US President Donald Trump’s presidency, the House of Representatives voted to impeach Trump for a historic second time on Wednesday, citing “incitement to insurgency” after a crowd of Partisans stormed the United States Capitol a week ago. .
At the same time, the FBI made arrests across the country over the riots, leading some to wonder if Trump would try to get more pardons before his term ends, including by pardoning his supporters. , his family and even himself.
Trump’s presidency has raised legal questions about pardons never before tested in federal courts: The constitutionality of a self-pardon, for example, remains unclear because no president has ever attempted it before, with legal scholars divided on the issue. way of interpreting the law.
Does Trump’s impeachment change anything when it comes to granting pardons?
In Article II, Section 2 of the US Constitution, it states that the President “shall have the power to grant stays and pardons for offenses against the United States, except in the event of removal.”
But lawyers seem divided on what the “except in case of dismissal” clause means.
“Conventional wisdom and centuries of treaties and textbooks tell us that when the Constitution says that the president can forgive ‘except in the event of impeachment’ means that the criminal process and the impeachment process are separate and the president cannot forgive that crimes, ”Brian Kalt, an expert on constitutional law and presidential history, and professor of law at Michigan State University, told CTVNews.ca in an email.
“He cannot stop an indictment or overturn an indictment conviction, but he can still pardon any related crime.”
With the House having voted 232-197 to impeach the president, a two-thirds majority is still needed in the Senate to convict and impeach Trump, the only U.S. president to have been impeached twice. But the first Senate trial would begin next Tuesday, just before the inauguration of President-elect Joe Biden.
Kalt explains that Trump retains all of his powers until he is convicted or his term expires, which means he can still issue pardons – whether related to his impeachment or not – while he is he is dismissed. ”
Kalt noted that former President Bill Clinton pardoned 34 people between his impeachment on December 19, 1998, and his acquittal on February 12, 1999.
“No one has shied away from this because, again, the standard reading of the impeachment exception to the power of forgiveness … is uniformly understood and accepted.”
Based on Clinton’s example, Trump could still issue pardons in his last week in office. Prior to his impeachment, he had previously discussed granting pardons for himself and his children, according to a CNN report this week, citing multiple sources. The report notes that Trump, his allies and members of his family who attended the rally on Capitol Hill could potentially face justice as a result of the riots.
Trump could, in theory, issue a general pardon that covers himself and his children until the time he leaves office, according to the CNN source. Another source has indicated that Trump may extend it to others outside the family, including Trump’s personal lawyer Rudy Giuliani.
Already, Trump’s previous pardons – which included four Americans convicted of killing Iraqi civilians, his former campaign manager Paul Manafort, former adviser Roger Stone and his son-in-law’s father Charles Kushner – have sparked a huge scandal.
WHAT CAN BE FORGIVEN?
While pardons cannot be overturned by the courts or Congress, the power to forgive someone is not unlimited, according to numerous legal articles on the subject.
A presidential pardon cannot be used for crimes committed under state law.
While it is generally accepted that a president cannot grant pardons for crimes not yet committed, they can be issued for “conduct that has not resulted in prosecution,” according to Reuters.
In a Supreme Court ruling of 1866, she stated that “the power of pardon … extends to all known offenses of the law and can be exercised at any time after its commission, that is, before legal proceedings are taken. committed, either during their hanging.
TRUMP’S IMPACT FORGIVENESS
Despite the pardons issued by Clinton and Kalt’s opinion that Trump can still issue them even though they are linked to impeachment, others have a different interpretation of the constitutional clause.
“One of the main things that the indictment[…]will really do is limit his ability to forgive. In impeachment cases, presidential pardon doesn’t work, ”Stephen Farnsworth, professor of political science at the University of Mary Washington, told CTV News Channel.
“If you were worried – or some Democrats were worried – that President Trump basically forgives everyone involved in this case, that will be a much more difficult legal path to take in the future.
A Washington Post analysis by two professors and experts from the US Presidential Office said that only Congress, not the Supreme Court, can decide whether the president “can forgive himself or others directly related to serious crimes for which he is dismissed ”.
“We and other legal scholars understand that this clause means … that the president cannot forgive himself or others for matters directly related to his own impeachment,” wrote Corey Brettschneider, professor of political science at the Brown University and Jeffery K. Tulis, a government professor at the University of Texas at Austin.
“According to this view, Trump could not grant any pardons for himself or for the insurgents on criminal charges related to the events of last week.”