The hypothesis has been mentioned for several weeks.
But it takes a new thickness since the chaos caused, Wednesday, January 6, by pro-Trump demonstrators on Capitol Hill: The American president who continues to contest the result of the American elections of last November 3, can he agree to the amnesty?
Donald Trump has already addressed the subject in a tweet in June 2018, in the midst of an investigation into suspicions of Russian interference.
"As has been established by many experts, I have the absolute right to pardon myself, but why would I do this when I haven't done anything wrong?"
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?
In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
- Donald J. Trump (@realDonaldTrump) June 4, 2018
However, the question is much less simple than what the outgoing president would like to believe.
While the power of grace is extremely extensive, it is not without limits either.
In the United States, the end of a president's term of office is a time of intense negotiations on the subject of pardons.
But Donald Trump has already used this power to offer immunity to those close to him, such as to his former National Security adviser, Michael Flynn.
He could also pardon other collaborators, such as his personal lawyer Rudy Giuliani.
To protect himself, the outgoing president would also consider, according to the New York Times, the possibility of pardoning
"
preventively
"
members of his family.
Stakeholder
But can Donald Trump apply this power to himself?
The question is divisive and does not seem completely settled.
"This has been debated a lot in the United States but the response which seems to be the majority is the 'no'", assures France 24 the professor of public law at the University of Paris-Saclay, Julien Boudon.
"The first problem of a possible self-amnesty is that one cannot be judge and party", abounds the lawyer Anne Deysine, specialist of the United States.
"This pardon would immediately be challenged in court."
Indeed, no case law exists on the possibility for a president to pardon himself.
"It is not clear", summarizes Reed Brody, American lawyer and former deputy prosecutor in the State of New York, with the antenna of France 24. In addition, a possible amnesty would concern only federal crimes and misdemeanors but would in no way shut down the investigations launched against him by local courts, as in New York on the very sensitive file of taxes and income of billionaire Donald Trump.
This is not the first time this question has arisen in American history.
In 1974, Richard Nixon's lawyer, embroiled in the Watergate affair, had already considered the possibility of "self-grace".
A scenario then deemed impossible in a memo written by the Ministry of Justice.
"Since then, this doctrine has never been called into question, explains Julien Boudon. At the time, Richard Nixon did not forgive himself. He resigned and waited for grace from his successor, its vice-president, Gerald Ford. This shows that Nixon recognized that he could not self-root ".
With less than two weeks of the end of the presidential term, a similar arrangement between Donald Trump and Mike Pence, whose divorce appears to be consummated, is more than unlikely.
Moreover, the political cost would be astronomical for the vice-president, to whom we attribute ambitions for 2024.
An end of term shortened?
In the aftermath of the violence that shook the Capitol in Washington, House of Representatives leader Nancy Pelosi spoke out in favor of the impeachment of the American president via the 25th Amendment or by impeachment if necessary.
In total, more than 100 elected Democrats have declared themselves in favor.
However, the schedule is far too tight to launch impeachment proceedings, according to Julien Boudon.
"It is far-fetched because the impeachment procedure is extremely cumbersome and would take weeks," said the law professor.
There remains the 25th amendment, which allows the dismissal of a president deemed "unfit" for office, either temporarily or permanently, when the situation is deemed necessary and in extraordinary circumstances.
This incapacity can be linked to dismissal, death or resignation.
The 25th Amendment also provides that a president can be removed from office if the vice president and a majority of the cabinet determine that he is "incapable of discharging the powers and duties" of the office.
The president can challenge the decision, but if the vice president and cabinet persist, then it is up to Congress to order the president's impeachment by a two-thirds vote of both houses.
"However, it is difficult to see Mike Pence convert a majority of the 15 members of the cabinet in such a short period, tempers Julien Boudon. We also note that Donald Trump has given signs of appeasement in particular by committing to promote a transition peaceful and orderly ".
New charges?
Already surrounded by many cases for suspicion of obstructing justice, sexual assault or concerning his financial activities, Donald Trump could also be worried for his responsibility in the violence committed on Capitol Hill.
According to Julien Bougon, "the expression 'walking on Capitol Hill' used in Trump's speech could serve as a legal basis" for prosecution.
"He could be prosecuted for what happened in Washington," confirms Reed Brody, but also for other cases like this phone call in which he pressured the Georgia secretary of state to 'find' him 12 000 votes and overturn the result ".
It will therefore be up to the new authorities and the new Minister of Justice, Merrick Garland, to take the decision to initiate unprecedented proceedings against a former president.
Politically, President-elect Joe Biden is walking on eggshells as prosecution of Donald Trump could be seen as a vendetta led by Democrats.
"In the United States, it is believed that justice should not be used to settle scores. The tradition is rather to turn the page, analyzes Reed Brody. At the same time, do not prosecute a president who calls for sedition or demands to reverse the election result, that would mean that the president would be above the law. "
In a statement released Thursday, Joe Biden's team particularly insisted on the independence of the next Minister of Justice.
Merrick Garland and his team "will be the advocates of the American people, not the president's law firm," a way of reaffirming the rule of law in this context of a potentially explosive transfer of power.
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