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Saturday, Sep 21, 2019

Donald Trump sets a cat among the impeachment pigeons

There is an ambiguity in the wording of the US Constitution regarding the scope of a presidential pardon. Donald Trump and his team are looking to use this legal grey area

editorials Updated: Jun 07, 2018 19:38 IST

Hindustan Times
US President Donald Trump, White House, Washington (File Photo)
US President Donald Trump, White House, Washington (File Photo)(AP)

Because of his unpresidential nature, United States President Donald Trump inspires debates on the most basic legal and political premises underpinning his country. His recent tweet that he had “the absolute right to pardon himself” has resurrected an issue thought closed after the Watergate crisis.

There is an ambiguity in the wording of the US Constitution regarding the scope of a presidential pardon. The constitution is in no doubt that a pardon only applies to federal laws and that it cannot be invoked by a president facing impeachment. But it is silent about any lesser crime.

An acting attorney general, asked to give an opinion in 1974, ruled that under “the fundamental rule that no one may be a judge in his own case; the President cannot pardon himself.” However, it has never been tested in court and therefore it can be debated. And US presidents can define pardons generously.

Once an academic exercise, it has become politically relevant because of the slow but inexorable progress of special counsel Robert Mueller’s investigation and the possibility Mr Trump could become among those he charges. If the charges were severe enough to cause the US Congress to move for Mr Trump’s impeachment, constitutionally, the president cannot get himself off the hook. If the president is found guilty of something less than the “high crimes and misdemeanours” that trigger impeachment, then the possibility of a self-pardon arises. Mr Trump and his opponents sense their battles may lead them into this legal grey area at some point. They seem to be staking out their positions in preparation.

Anglo-Saxon legal tradition, to which India also adheres, would tend to go against Mr Trump. British courts in a series of judgments going back to the early 17th century entrenched the principle “one cannot be judge and attorney.” The concept of pardon derives from a privilege enjoyed by monarchs. Curiously, there seems to be no case of a king who was able to pardon himself.

In India, the primary check on the abuse of pardons has been the judiciary. Picking up from the Anglo-Saxon legal precedents, the Supreme Court in a number of decisions, culminating in the case of Epuru Sudhakar & Anr vs Govt of Andhra Pradesh & Ors, sensibly laid down a set of dos and don’ts when it came to pardons.

Mr Trump is still a long way away from testing his Constitution and his Supreme Court. He completed his tweet on pardoning himself by saying, “why would I do that when I have done nothing wrong?” Whether he speaks the truth on that count will be what the coming months will determine as Mr Mueller’s probing continues to move forward.

First Published: Jun 07, 2018 12:18 IST