Could Trump pardon himself before he leaves office? Your U.S. election questions answered


In the wake of the U.S. election, you’re asking us everything from how ballots are counted to what happens with Donald Trump’s legal challenges and the future of the U.S. president himself.

So far, we’ve received more than 800 questions from across Canada.

Email us your questions to ask@cbc.ca, and we’ll answer as many as we can here on CBCNews.ca, on CBC News Network and directly via email. (And keep your COVID-related questions coming to COVID@cbc.ca).

Can a U.S. president pardon him- or herself?

In the wake of a drawn-out, tense U.S. election with President Donald Trump still refusing to concede and president-elect Joe Biden already readying his transition team, some readers are wondering about speculation that Trump may pardon himself before he leaves office in January.

Kathy wants to know if the U.S. president can do that and if he has to be convicted of a crime first?

First, it’s important to note that even though nothing in the U.S. Constitution states that a sitting president cannot be indicted, this U.S. Department of Justice memo published in 2000 reaffirms a 1973 decision from the department that concludes a sitting president should not be indicted.   

So, a pardon would have to be granted to preemptively cover any legal proceedings that would begin after Trump is out of office and no longer protected by presidential privilege.

But whether a president can actually pardon him- or herself is a whole lot more complicated.

Trump has said he has the “absolute power” to pardon himself as part of his executive clemency authority. 

But a different U.S. Justice Department memo from 1974 on the question of whether President Richard Nixon could pardon himself was met with a resounding no, on the grounds that “no one may be a judge in his own case.”

Some experts say it would be unconstitutional.

“Most people who have looked at it think it’s certainly not appropriate,” Louis Michael Seidman, professor of constitutional law at Georgetown University in Washington, D.C., said of the idea of Trump pardoning himself. 

He said it’s an issue that’s never been litigated before and there is no precedent for it. However, there is a way Trump could receive a presidential pardon that does have some precedent.

“What he could do is resign and that would make [Vice-President] Mike Pence president,” Seidman said. “Then, Pence could pardon him.” 

This happened when Nixon received a presidential pardon for any crime associated with the Watergate scandal, from his vice-president, Gerald Ford.

Seidman noted that a person doesn’t need to be charged with a specific federal crime to receive a pardon. And a pardon can’t be granted for a crime that hasn’t yet been committed.

“But Pence could give him a blanket pardon for federal offences.” 

The U.S. president is also facing a long list of legal woes that are not under federal jurisdiction.

The cases include a criminal investigation into Trump and the Trump Organization and an active civil tax fraud investigation in New York.

Once Trump leaves office, state investigators and prosecutors will be free to resume any legal proceedings or bring charges. 

Could the U.S. Supreme Court overturn the election results?

Trump has repeatedly threatened to challenge the election results all the way to the U.S. Supreme Court.

Xavier S. wanted to know if the high court could somehow declare votes invalid or overturn the election results altogether.

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The experts we spoke to said, yes, technically, the U.S. Supreme Court has that power. But it would be unlikely to happen.

First off, the president has “no ability to simply drop a case in the laps of the members of the Supreme Court and say, ‘Resolve this in my favour,'” Robert Spitzer, the distinguished service professor of political science at the State University of New York in Albany, told The Current‘s Matt Galloway.

“That’s not how the legal system works.”

For a case to find its way to the Supreme Court, it first needs to be ruled on by lower courts, typically by a U.S. Court of Appeals or the highest court in a given state. Then, one of the parties involved must petition the Supreme Court to hear the case.

It’s not clear which of the Trump campaign’s recent lawsuits would have the legs to make it to the Supreme Court. So far, none have produced meaningful evidence or results, and some have already been dismissed. Normally, cases that make it to the Supreme Court carry national significance or could set a precedent, but the justices have no obligation to hear any of them.

While waiting for a result in the election, Trump supporter Scott Knuth of Woodbridge, Va., stands outside the U.S. Supreme Court in Washington, D.C., on Nov. 6. Trump has vowed to contest the result all the way to the highest court. (J. Scott Applewhite/Associated Press)

You may remember that a Supreme Court decision to end a Florida recount in the hotly contested Bush-Gore race in 2000 ultimately resulted in Bush winning the state by about 500 votes and being named president.

But experts say that wouldn’t happen this time because the margins between Biden and Trump are too wide.

Even if the Supreme Court agreed to hear a case and were to rule out enough votes — for whatever reason — to flip a key state such as Pennsylvania or Georgia from blue to red, Seidman said, it likely wouldn’t be enough to change the outcome of the election.

What happens if you die after casting your ballot? 

One of the often repeated claims from the Trump campaign is that votes in at least two states were cast under the names of voters who had died. 

There’s no proof this happened.

But with tens of millions of Americans casting mail-in ballots in part because of the pandemic, Margaret W. wanted to know what the procedures were if a voter casts a ballot but then dies before Election Day. 

The answer depends on the state.

“There’s 51 sets of rules,” said Wendy Underhill, director of elections and redistricting at the National Conference of State Legislatures (NCSL), a nonpartisan public officials’ association, referencing the 50 states and the District of Columbia. 

WATCH | Trump campaign continues to push back against U.S. election results: 

The Trump campaign has launched a lawsuit challenging election results in Michigan, while the White House continues to keep president-elect Joe Biden’s transition team in limbo. 1:50

She said only about half of U.S. states have laws directly addressing the issue.

For example, in Florida, Tennessee or Massachusetts, if a voter casts a mail-in, absentee or other type of early ballot and then dies before election day, the ballot would be valid. 

But not in Wisconsin, Iowa or Pennsylvania.

In these states, early ballots cast by people who die before election day do not count if the states are notified of the person’s death before they start counting ballots.

It is interesting to note that 24 states (plus the District of Columbia) don’t have laws specifically addressing the matter. That’s because, historically speaking, mail-in voting wasn’t as prevalent, Underhill said.

But what happens in a recount?

Once the ballot is separated from its envelope it is cast, said Underhill.

“The ballot can’t be retraced to the voter,” she explained. “It’s a secret.” 

A worker canvases ballots that arrived after the close of voting Tuesday, Nov. 3, as counting in the U.S. election continued on Nov. 6 in Wilkes-Barre, Pa. (Mary Altaffer/Associated Press)

Underhill wrote that if a deceased person’s ballot is counted in a state where it shouldn’t be under state law, that mistake doesn’t invalidate broader results from the area.

“Unlike many election policy questions, this one does not have a partisan edge,” Underhill wrote in a recent blog. “Death makes no distinction between Democrats, Republicans and independents as they cast their absentee ballots.”

Do electors have to vote with the popular vote?

In a few weeks, the electoral college will meet to select the next president of the United States. Electors typically vote in accordance with the popular vote in their state, or district, but reader Tales E. was wondering if they have to.

The answer is complicated.

First, there’s no federal law or anything in the U.S. Constitution that requires electors to vote for the candidate who won in their state or district. When they don’t, the electors become known as faithless electors.

So, can they vote however they like? It depends on the state. 

WATCH | Biden says Trump’s refusal to concede won’t help his legacy:

When asked by reporters on Tuesday about Donald Trump’s resistance to conceding the election, U.S. president-elect Joe Biden said ‘it will not help the president’s legacy,’ and that he and his team will continue to move forward with a transition plan. 1:36

Some states have passed laws that require their electors to vote as pledged. If they don’t, according to the National Conference of State Legislatures, electors could face fines or even criminal penalties. But in most cases, the electors are simply replaced with those who will follow the state vote.

It’s even more complicated in states that don’t have laws binding electors, including Georgia, Pennsylvania, and Arizona.

This could be potentially problematic in this election, said Lawrence Lessig, a professor at Harvard Law School, and the author of They Don’t Represent Us: Reclaiming Our Democracy, because of how close the results are in key states with Republican-controlled state legislatures and Republican governors.

In those states, the legislatures could send a new slate of electors to Congress, Lessig explained in a recent episode of CBC’s FrontBurner. But with Congress divided, Lessig said, “if they can’t agree on which slate gets counted, it’s the slate signed by the governor.”

WATCH | Pompeo says ‘smooth transition’ to a 2nd Trump administration expected:

U.S. Secretary of State Mike Pompeo told reporters Tuesday he expects ‘there will be a smooth transition to a second Trump administration’ and repeated the president’s message to count every ‘legal’ vote, despite no evidence voter fraud occurred during the presidential election. 1:33

Lessig pointed out that in Republican-run states where the margins are slim, such as Arizona and Georgia, faithless electors could theoretically benefit Trump, but it would be an unpopular move.

“If America wakes up, and this election has, in that kind of grotesque way, been stolen, [it would] trigger very, very engaged protest.”

And even though it’s possible, it’s “highly unlikely” that a state legislature or governor would send a competing slate of electors to Congress, said Russell Wheeler, a visiting fellow in the Brookings Institution’s governance studies program.

“It would open a can of worms that no one wants opened,” he said. 

And with Biden currently looking likely to get 306 electoral college votes, Wheeler said, it would take “something of an earthquake” for enough electors committed to Biden to break faith, and overturn the results.



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