Donald Trump and family watch on ahead of Washington riots
And Dr Richard Johnson, a Lecturer in US Politics and Policy at Queen Mary University of London, said there was nothing to stop Mr Trump from issuing a general pardon to everyone who took part in the assault on the Capitol on Tuesday either. Mr Trump is facing mounting criticism over accusations that he actively incited the rioters with a speech at a rally in which he urged them to march along Pennsylvania Avenue to the complex which contains both the House of Representatives and the Senate.
Afterwards, thousands of his supporters did precisely that, with five people including one police officer killed in the ensuing mayhem, as hundreds of them smashed their way into the building.
Mr Trump eventually uploaded a video to Twitter – from which his account has since been permanently suspended – in which he encouraged them to go home.
However, he also declared: “We love you, you’re very special”, while repeating his baseless claims of voter fraud in relation to his loss to Joe Biden in November’s Presidential election.
Dr Johnson said Mr Trump’s determination to push the norms of the Presidential office to their limit were clearly pointing in one specific direction – that of ensuring he could not be held accountable once he leaves the White House at 12.01pm on January 20.
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House of Representatives majority leader Nancy Pelosi is pushing the idea of using the 25th Amendment of the US Constitution, which provides a mechanism for removing a President from office if he or she is deemed incapable of doing the job, and has also introduced an article of impeachment.
Dr Johnson said: “I think the invocation of the 25th Amendment is unlikely. For that you need a majority of the Cabinet that Donald Trump has appointed.
“We have had the resignation of a couple of people recently and I think that actually makes it less likely that the remaining people are going to remove him. And Mike Pence would have to be supportive as well and I don’t think he would be.
“On impeachment, I think it is possible, maybe probable, that the House of Representatives would vote on articles of impeachment against him but that is as far as I think it will go.”
Washington: Trump supporters clash with police in Capitol Building
The Senate is in Republican hands until the votes from the Georgia run-off election were certified on January 22, two days after Mr Biden’s inauguration, Dr Johnson explained, and it seemed unlikely current Republican Senate Majority leader Mitch McConnell would facilitate an impeachment trial.
Uncertainty continues to swirl around Mr Trump, with Mrs Pelosi admitting she had spoken to US military commanders to ensure they had plans to intervene to prevent him from launching nuclear weapons for example.
There have also been suggestions Mr Trump could opt to start a war, possibly with Iran, but Dr Johnson said he was sceptical.
He said: “He is Commander in Chief and that ultimately gives him the ability to move US troops where he would like to order them and the War Powers Act would not constrain him from doing that.
“I don’t really see that to be very likely, I am not really sure what he would be doing with the army so I don’t think that is on the table.”
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Dr Johnson said Mr Trump had effectively conceded the election with his tweet confirming he would not be attending Mr Biden’s inauguration – but he said it was highly possible he would opt to pardon himself in the meantime.
He said: “I’m not sure – to pardon might imply, at least symbolically, some admission of guilt. But on the other hand, what has he got to lose?
“I think there are a couple of things he could surprise people on. One is self-pardon, which is untested legal territory. The pardon power is an extremely broad power of the Presidency.
“The only check is in the Constitution which say the pardon cannot be used to block impeachment. There is a common law principle that somebody should not be able to judge themselves and you might try to make that argument.
“But on the other hand you could say the Constitution does not rule it out and therefore if the Founding Fathers had wanted to rule out self-pardon they would have put it in the Constitution.”
The big question was whether Mr Trump was able to apply a pardon to himself, something which Mr Nixon considered but opted against.
If Mr Trump opted to do, the legality of such a move might end up being tested in the Supreme Court – but Dr Johnson pointed out Supreme Court judges included three who were Trump nominees and had a 6-3 conservative majority.
Alternatively Mr Trump might resign, with Vice President Mike Pence taking his place with the specific task of pardoning him, something which would be very difficult to challenge given a precedent for a move had been set 1974.
Referring to the aftermath of the Watergate scandal, which prompted the resignation of former President Richard Nixon, Dr Johnson explained: “If he got what you might call Gerald Ford pardon of Nixon, who got a full and complete pardon of any crimes that he may have committed from the start to the end of his presidency, then it would be very difficult to do anything about it.”
Dr Johnson added: “The other way he could surprise people (although I don’t think he will) is he could offer a blanket pardon to the protesters.
“He could say anyone who was involved in the action against the US Capitol on January 6 has a whole, unconditional pardon. Presidents have issued blanket pardons in the past – Andrew Johnson after the Civil War pardoned all but the most senior members of the Confederacy. That kind of thing is open to him.
“Pardoning these people might be a way of reaffirming their loyalty to him. And if he does it in his last days in office, there is nothing anyone can do about it. At the Presidential level Trump has pushed the boat out much further than really any other President.
“The pardon power is potentially very dangerous – at the moment a fictitious President can order a member of that President’s family to shoot the White House butler and then that President could pardon that member of his family.”
Mr Trump’s pardon only applies to federal and not state crimes, meaning he could still face prosecution in New York for example, where attorney general Letitia James is attempting to sue him for tax evasion.
Bookmaker Coral is currently offering odds of 5-6 on Trump issuing an official self-pardon before the end of his Presidency.
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