They said that the Constitution gives the president the power to act as a judge in another person's criminal case as he sees fit. It also allows him to pardon anyone at anytime, as long as the crime is a federal offense.
But it does not give him the power to make such decisions regarding his own actions. That provision makes no sense if the president could pardon himself. A president might also avoid taking such action for political reasons, Brian Kalt, a law professor at Michigan State University, wrote in Bush, argued that the president's pardon powers are absolute.
He can pardon anyone, including himself. A self-pardon? Jonathan Turley, a law professor at George Washington University, argued the Constitution does not bar presidents from pardoning whomever they want.
A preemptive pardon is granted to someone who has not been charged or convicted of a crime. The Supreme Court held in that a president can issue pardons "at any time after" an offense is committed, "either before legal proceedings are taken, or during their pendency, or after conviction and judgment.
On Tuesday, the New York Times reported that Trump's personal lawyer Rudy Giuliani discussed a possible preemptive pardon that would shield him from the prospect of federal criminal charges arising from his work as the president's aggressive defender-in-chief. Hard to keep up with all their lies. Federal investigators in New York have been examining Giuliani's business dealings with two men who were indicted last year on campaign finance violations.
Constitution itself is mum on the matter. Article II of the charter gives the president the power to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment. Those who believe a president can self-pardon argue that there is nothing to the contrary in the Constitution. The American leader, they say, has the power to pardon federal crimes, and if he himself commits a federal crime, then he should be able to pardon himself for that offense. But those who take the opposite view — and they're in the majority — contend that the very act of "granting a pardon" implies a bilateral move involving two people.
That is the way it's been understood historically," said Steve Mulroy, a law professor at the University of Memphis. What is more, Mulroy said, self-pardoning is at odds with a long-standing American legal principle, rooted in English law, that one cannot be a judge in one's own case.
In , the Justice Department considered the question. The answer it came up with was no. Self-pardoning would run counter to the "the fundamental rule that no one may be a judge in his own case," the department's Office of Legal Counsel wrote in a memo. Of course, that doesn't mean the president may not try to pardon himself. If he opted for self-clemency, he'd likely issue himself a "full and unconditional pardon," according to legal experts. Gerald Ford pardoned his predecessor Richard Nixon over the Watergate scandal.
He argued it was essential for the nation to move on. It is a decision still debated today - some say it cost him the election, others that he made the difficult, but right, choice. Presidents have made sweeping pardons to heal national wounds, such as when President Andrew Johnson pardoned Southerners after the Civil War.
Bill Clinton caused uproar when he pardoned scores of people on his last day in office, including a brother-in-law and Marc Rich, a fugitive who had been indicted for tax evasion and fraud.
Perhaps the most famous beneficiary of President Obama's clemency was Chelsea Manning, the US Army Private sentenced to 35 years in jail for leaking documents to Wikileaks.
They include his former national security adviser Michael Flynn, who was ensnared by the Special Counsel inquiry into alleged Russian meddling in the election. In December, he issued a series of pardons, including his former campaign manager Paul Manafort, ex-adviser Roger Stone and the father of his son-in-law.
Mr Trump also pardoned four security guards involved in a massacre in Iraq. There were also less contentious pardons and commutations. In , he pardoned Jack Johnson, boxing's first black heavyweight champ, convicted in of taking his white girlfriend across state lines, and the same year granted clemency for Alice Johnson, a year-old grandmother jailed in on a non-violent drug charge. Trump pardons black heavyweight champion. Trump condemned for pardoning Blackwater guards.
Trump pardons two convicted by Russia inquiry. Are we going to see a blitz of Trump pardons? He's not doning robes and no one calls him, your honor, when he's making this decision. It's not a judicial function in the way that hearing a case would be. So the text is open-ended. It covers all of the federal offenders and all other federal offenses. And I don't see why the president would be excepted.
Having said all that I respect Brian's scholarship and his point of view and his very reasonable articulation of that point of view. So I, again, I would agree with your characterization that this is not a slam dunk situation.
At least I don't perceive it as such and others can say what they want to say. In terms of what the Supreme court would do, I think before we get to the Supreme court, we have to go through a series of hypotheticals that I think actually are rather far-fetched. One is that the president actually pardons himself and takes on the burden of saying something that will be read by many as an admission of guilt.
That is to say his opponents will immediately seize upon his self pardon and say, aha, you've admitted that you, you know breached the campaign finance laws and that you obstructed justice and that you've cheated on your taxes. And you did any number of host of things. We've got a laundry list of crimes you've committed and you've just admitted to them. Every single one of them. I don't think he's going to do that, to be honest with you, he might pardon his kids, but I don't think he's going to pardon himself, especially if he's thinking of running again.
Second thing we'd have to have happened is the Biden administration would have to want to prosecute him. I don't think that's happening because I don't see why they want their administration consumed by a prosecution of Donald Trump.
As it is Donald Trump sucks out all the oxygen from the room. I don't know why they want to give him more, you know, why they want to feed more oxygen to this flame.
If I were advising president elect Biden, I'd say this is not something you want to do because there's really little to be gained by it. And so it's only after they decide to prosecute him for something that the president then the former president would then say, but your honor, I've got a pardon. You can't prosecute me. And then the issue would be joined, right?
And then the district court and potentially a circuit court and the Supreme court would weigh in. But until Donald Trump pardons himself, and until the Biden administration or some subsequent administration prosecutes them, none of this is going to get to court. That is to say if Donald Trump issues a pardon to himself, and there's never a prosecution, there's never a court case and there's never an adjudication.
So this is a great topic for us to discuss. And you know, we love talking about it with you. And it's obviously captured the attention of many people. But it's, it's really, I think it's really an improbable event for a number of reasons. At least that that's my sort of understanding of the political situation.
Of course, I'm a law professor, not a politician, so I could be completely wrong. Jeffrey Rosen: [] Brian, you wrote the interactive constitution's explainer on the 25th Amendment involving presidential disability in the memo written by the Office of Legal Counsel under President Nixon.
The OLC acknowledged, there could be a loophole if, the memo wrote, under the 25th amendment, the president declared he was temporarily unable to perform the duties of the office, the vice president would become acting president and as such could pardon the president. It says thereafter, the president could either resign or resume the duties of his office. Do you agree with this analysis and could president Trump indeed under the 25th amendment temporarily declare himself unable to perform the duties of the office, have vice president Pence as acting president pardon him and then resume his duties?
Brian Kalt: [] I think so. I was not aware of the OLC memo when I wrote my note in the mid nineties , but I had a footnote about the same thing. People said, "Oh, it'd be a functional self pardon. That's what Nixon and Ford did. The 25th amendment is a little different though because it does seem like subterfuge. I suppose the president could wait until he's getting a colonoscopy or something and as presidents do in those situations say, well, I'm being sedated and I'm handing over power.
And then when he wakes up Pence is there saying, "Hey, good news. I did one thing while you were under ". It is subterfuge. I don't think that it would be an invalid use of the 25th amendment just for the simple reason that the 25th amendment assigns the question of whether the president is unable or not to the president.
I don't think that's reviewable by a court. I think it would be wrong, but I don't think that it would be invalid. What it might be though , and this is true of a resignation or a 25th amendment section three invocation, what it might be is a crime. Because if the president says to his vice president, I will give you this thing, the presidency or the powers of the presidency, if you agree that you will give me this thing, a pardon , that is flirting with illegal bribery, corruption.
And so I think that doing that would expose both of them potentially to a criminal liability or at least investigation. And the vice-president as a result might not want to do this.
It doesn't work for the president unless the vice president is willing to do it. I think Nixon thought that he had to deal with Ford. I don't think Ford thought so , but Congress looked into it. Ford had to go testify in front of Congress when that happened.
And, again, that was a resignation. So something sketchy or like 25th amendment, I think could open up a can of worms for them that might make it a worth avoiding. Jeffrey Rosen: [] Thank you so much for that. Sai, do you believe that under the 25th Amendment President Trump could temporarily step down, have vice president Pence pardon him as acting president and then resume his duties?
And do you agree or not that this could open both up to potential criminal liability? Sai Prakash: [] So I disagree with Brian here. I think you really have to be unable to discharge the office to temporarily step aside. That is to say that no president can say I'm not going to be president for a day, even though I'm perfectly fine. I don't think that's a possibility that the constitution contemplates that they're going to step down from the presidency, even though they're perfectly fine.
As for the colonoscopy example, the president has perfect colons and so he's not going to need a colonoscopy any anytime soon, but it's an interesting situation that we're in, because I don't think that the press, this is sort of a, you know, they're treating it as an option to just step down temporarily and I don't think the constitution gives the president any such option.
As far as whether, you know, whether it would be legal or not, I think no. The answer is no, whether or not a court would adjudicate it. That is to say, even if a court would say, it's your choice as to whether or not you are able to function as president.
I think the answer is that that may be true. The court may not review it. But it doesn't matter. It's still illegal or unconstitutional for a president to engage in this sort of scheme to, you know, to not serve as president while they're perfectly able to do so. And then, you know, you might just, I might just differ with Brian. I'm not, it's not obvious to me that that's not reviewable. That is to say it says the president, you know, whenever the president's not able to discharge the duties of his office, the vice president takes over.
I don't think that necessarily implies that that's not reviewable. If there's some question as to who ought to make a decision. So another way of putting it is that the vice-president makes some decision and other people want to contest it on the grounds that the vice-president isn't the president, either in the pardon context or some other context.
I think he would be open to them. And I don't know if it'd be at all obvious that the courts would stay their hand because it, I don't think this is, you know, it's not obviously committed to the presidency by law that he gets to decide this question.
So on the question of, you know, corruption, et cetera and whether that could lead to a second prosecution, Steve Calabrasi has argued that if the president were ever to pardon himself, he be guilty of obstruction of justice and he could be prosecuted for that and the pardon wouldn't cover that because it would be, you know, the very act of pardoning would itself sort of be this separate crime that I guess he envisions would happen after the act of pardoning.
And of course, as the president tried to pardon that, that too would be an act of obstruction. And so there's sort of the claim is that there's sort of no way for the president to effectively isolate himself because whenever he pardons himself, he'll have committed a crime in so doing.
It's a clever argument and I don't know if people are making it in print yet. Maybe Steve will. I think one answer to the argument is that you need a corrupt mind when you commit obstruction and the president could say I'm innocent.
And so I haven't done anything wrong. I haven't done so for, I have an issue to pardon to myself for corrupt reasons, but it's, I think it's the same sort of argument that Brian is talking about when talking about sort of a corrupt scheme to give the president a pardon. If the president feels like he's innocent, that's going to be his defense to the argument that it's corruption.
Jeffrey Rosen: [] Well, it is time for closing arguments in this wonderful discussion. Brian, maybe just a beat about whether you agree with Sai that this is unlikely and could the president pardon himself secretly and could the pardon only emerge if he indeed were prosecuted federally, which Sai says is unlikely.
And then if that prosecution were to move forward, give your brief and concise closing argument to the court about why you believe that this suddenly revealed self pardon would be unconstitutional. Brian Kalt: [] I agree with Sai that it is more far-fetched than people seemed to think in talking about this often. I've been writing about this for 25 years now and for the first 21 of those, my biggest task was to convince people that this was worth discussing because they said, well, it could never happen.
I said, well, we should talk about it before it happens. Now it seems, I would say more likely than ever. But there are still a lot of barriers to it.
There's still a lot of reasons why he'd be better off taking his chances with Biden or with Pence, if he wants to step aside or step down before January 20th. And he himself has talked about it. In , President Trump said, declared that he had the power to pardon himself. So again, I don't think this is, this is just fever dreams of his opponents.
I think he himself has brought it up and he's shown a willingness to bust norms and to reveal how much is governed by norms rather than law. But to the extent that it is governed by law, to the extent that it does go to a court to decide whether a self pardon is valid, I would return to the core arguments: one that a grant of a pardon , both of those words grant and pardon means something inherently bilateral and giving it to yourself from Trump, the president to Trump, the person is not what we mean by bilateral.
Second that you can't be the judge in your own case, and you're not a judge, Sai's right, you're not a judge when you pardon, but you're also not a judge when you're on a jury. You're also not a judge when you're a prosecutor deciding to prosecute again at every other stage in the process.
The decision to let you go free has to be made by someone other than yourself. And I suppose if I were an advocate rather than a scholar, I were trying to win the case rather than just satisfy myself that I was right, I would probably also appeal to the extra constitutional notion, it's not written in the constitution, but just the notion of fairness and rule of law and point out just how offensive the self pardon is to those notions.
And again, Sai is right, again, that plenty of people think this is not offensive. What would be offensive would be prosecuting him and he was protecting himself from that. But if I'm in court making the argument, I would throw that in too to fire up the side that believes he's guilty. Jeffrey Rosen: [] Sai, the last word in this fascinating discussion is to you. Please give our great We the People listeners your concise closing arguments for why you believe that a presidential self pardon would be consistent with the constitution.
Sai Prakash: [] Well, thanks again, Jeff and Brian, for this wonderful conversation. I guess what I'd say in summation is the constitution grants the president an extraordinarily broad pardon power to cover all federal offenses. And of course the president can commit federal offenses.
That's part of the principle that no man is above the law. And so as a textual matter, it seems rather open-ended and implies that I think that the president can pardon everyone under the sun and including himself.
And the many interesting structural arguments that Brian relies upon are things to consider. But as I said earlier, I don't believe the president is judging himself when he's granting other people, judging, judging other people when he's granting them a pardon. He's not acting as a judge. No one considers him a judge in that capacity. So the question is why would he be a judge for the sole purpose of giving himself a pardon.
As for the point about no man being above the law, I too agree with that. I believe the president can be prosecuted while in office or afterwards. And so there is a tension between this idea that the president can prosecute himself, but also pardon himself, but as Brian points out that tension is there without respect to the self pardon possibly.
That is to say, we can say on the one hand that no man is above the law, but also understand that the president has a pardon that can absolve someone of their crimes. And I'm just saying the same thing is true for the president. So I think the text is very broad and I don't find the structural arguments that Brian and others are making convincing, even though I do respect Brian's learning on this matter. Jeffrey Rosen: [] Thank you so much, Brian Kalt and Sai Prakash for a respectful civil and very illuminating discussion of the open-ended question of whether or not the president can pardon himself.
Brian, Sai, thank you so much for joining. Thank you so much friends for rating, reviewing, and subscribing to We the People on Apple podcasts. We so appreciate the reviews.
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