US election, riots: Donald Trump's 'extraordinary' plan to pardon himself

President Donald Trump speaks during a rally protesting the electoral college certification of Joe Biden as President, Wednesday, Jan. 6, 2021, in Washington. Photo / AP

US President Donald Trump is said to be seriously considering taking the "extraordinary" step of pardoning himself for crimes he has yet to be charged with.

While the outgoing leader has long mulled the idea of using his executive power to insulate himself from criminal charges after he leaves office, the riots in Washington DC which left four dead after a Trump rally, may have focused his thinking on the matter. There are murmurs he could been exposed to criminal charges for inciting his supporters which ultimately led to the storming of Congress.

It comes as politicians in Washington contemplate a plan to invoke the 25th amendment of the constitution to effectively sack Trump after the riots, despite the fact he has less than two weeks remaining in office.

The New York Times has reported that in the dying days of his presidency, Trump has increasingly brought up a plan to pardon himself with aides.

"The move would mark one of the most extraordinary and untested uses of presidential power in American history," the paper said on Thursday, US time.

The US constitution gives the president sweeping powers to pardon and commute the sentences of Americans. However, a president has never pardoned himself and some constitutional experts are doubtful as to whether such an act would prevent Trump from facing legal trouble.

President Donald Trump speaks during a rally protesting the electoral college certification of Joe Biden as President, Wednesday, Jan. 6, 2021, in Washington. Photo / AP

Even if Trump does manage to legitimately pardon himself, there might be some charges he can't avoid.

"In several conversations since election day, Mr Trump has told advisers that he is considering giving himself a pardon and, in other instances, asked whether he should and what the effect would be on him legally and politically, according to the two people," The New York Times reported.

"The legitimacy of prospective self-clemency has never been tested in the justice system, and legal scholars are divided about whether the courts would recognise it.

"But they agree a presidential self-pardon could create a dangerous new precedent for presidents to unilaterally declare they are above the law and to insulate themselves from being held accountable for any crimes they committed in office."

WHO PRESIDENTS CAN PARDON

The presidential power to pardon is broad-reaching and has been used many times. In 1977, President Jimmy Carter pre-emptively pardoned hundreds of thousands of draft dodgers who avoided a government-imposed obligation to serve in the Vietnam War.

Presidential pardons are usually done through a process administered by the Justice Department to ensure they are handed out fairly.

President Barack Obama pardoned 212 people and lessened the sentences of a further 1715 criminals during his two terms. Most of the grants for executive clemency were for people on drugs charges. Notable commutations included military whistle blower Chelsea Manning, who was later released.

Trump has given clemency to fewer people, less than 100. However, he has mostly bypassed the Justice Department and almost all of those pardoned he has had links to in some form.

These have included pardons to Charles Kushner, the father of Jared Kushner, Trump's son-in-law; Roger Stone, who lied to Congress; and Michael Flynn, who made false statements to the FBI. The latter two were connected to the epic investigation into Russian election interference.

He's not the only president to pardon members of his inner circle. In 2001, Bill Clinton pardoned his brother, who was convicted on drug charges.

But as long ago as 2018, Trump tweeted that he had the "absolute right" to pardon himself.

The constitution is unclear on whether that can happen, but it certainly doesn't rule it out.

"When people ask me if a president can pardon himself, my answer is always, 'Well, he can try,'" said Brian Kalt, a constitutional law professor at Michigan State University told Reuters. "The Constitution does not provide a clear answer on this."

Writing in the National Review last month, professor of law California's Berkeley University, John Yoo, said self-pardons could be seen as self-dealing, essentially taking personal advantage in a legal situation, but that in itself might still be allowed under the constitution.

However, just because Trump might be able pardon he, that doesn't me he should, said Prof Yoo.

"It would set a terrible political precedent that would long tarnish Trump's legacy — especially if he wants to play kingmaker in the Republican Party or even run again in 2024."

There are a number of other hurdles Trump would face to such a move.

One is whether he can pardon himself, and his family and associates for that matter, for crimes for which no charges currently exist.

"Mr Trump would be best served by citing specific crimes if he pardoned himself, but such details could be politically damaging by suggesting that he was acknowledging he had committed those crimes," the New York Times said quoting lawyers.

Additionally, the president can only pardon federal crimes, not those levelled by the states.

So it will provide no protection against an ongoing New York legal case involving the Trump organisation's finances.

SELF PARDON A PROBLEM FOR BIDEN

If Trump does attempt to pardon itself, it could put the incoming administration of Joe Biden in a sticky situation.

If evidence of any crimes subsequently emerges, the Justice Department will have to decide whether to challenge the pardon – which could lead to a circus with Trump at the centre wallowing in the attention – or let him walk off quietly into the sunset but potentially above the law.

"The Biden Justice Department will not want to acquiesce in a Trump self-pardon, which implies that the president is literally above federal law," Jack Goldsmith, a former senior Justice Department official in the George W. Bush administration told the New York Times.

Indeed, the Biden administration might be so incensed about the precedent set by Trump that they feel compelled to take legal action to remove the pardon.

"A Trump self-pardon would thus make it more likely the Biden team prosecutes Trump for crimes committed in office," Goldsmith said.