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Can Donald Trump Presidential Forgiveness Be Turned?

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President Donald Trump‘s recent decision to grant a presidential pardon to his former national security advisor, retired Lt. General Michael Flynn, has fueled speculation about other potential acts of clemency during the lame duck period.

Former New York Mayor Rudy Giuliani has denied a report that he discussed a pardon with the president but he’s been mentioned for some time as one possible recipient.

The New York Times reported on Tuesday that Trump is considering pre-emptive pardons for his children and his son-in-law Jared Kushner, while many have suggested he’ll even try to pardon himself.

Glenn Kirschner, legal analyst for NBC News and MSNBC, has argued that Trump’s pardons could be challenged.

“Generally speaking, a presidential pardon cannot be overturned by Congress or the courts. Congress could impeach the president as punishment for a particular clemency decision,” Crouch told Newsweek.

“A president almost never tries to take back a pardon, although an old court case called In Re De Puy describes how President Ulysses Grant successfully cancelled a conditional pardon granted by his predecessor, Andrew Johnson, before it was delivered.”

The circumstances of Grant withdrawing a pardon are complex and took place in 1869. In that case, the pardon was not delivered to the recipient and a court ruled in Grant’s favor on that basis.

“More recently, George W. Bush took back a pardon from Isaac Robert Toussie and claimed he did so before it was delivered. I argued in a journal article that Toussie’s pardon was actually complete and couldn’t be taken back,” Crouch went on.

Bush reversed Toussie’s pardon in 2008 one day after issuing it when it emerged that his father had donated $30,000 to the Republican Party.

“[A]s long as a pardon is delivered, it is recognized as valid. The Flynn situation does not appear to involve a question about whether his pardon was adequately delivered, so it would likely stand,” Crouch said.

“A self-pardon would be unprecedented and would likely be decided by the Supreme Court. What they would decide to do is anyone’s guess,” he added.

Brian C. Kalt, professor of law at Michigan State University, does not believe Trump can pardon himself or that a valid pardon can be successfully challenged.

“Evidence from the Founding era suggests that the Founders did not contemplate that a president might pardon himself,” Kalt told Newsweek.

“You can’t overturn a valid pardon,” he said. “The only recourse would be to establish that it wasn’t a valid pardon in the first place. So if Trump purported to pardon himself, prosecutors could go after him anyway, arguing that the pardon was invalid.

“If they weren’t going to go after him, it wouldn’t matter if the pardon was valid or not; the fact that pardoning himself might make it more likely for them to pursue him is a possible reason for him not to attempt it,” Kalt said.

It remains to be seen if Trump will grant more pardons before January 20 or attempt to pardon himself but there appears to be little recourse if he makes controversial decisions.

President Donald Trump speaks in the Diplomatic Room of the White House on Thanksgiving on November 26, 2020 in Washington, D.C. Trump had earlier made the traditional call to members of the military stationed abroad through video teleconference. Trump may issue more pardons before he leaves office.
Erin Schaff – Pool/Getty Images

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