November 9, 2023 • 62 mins
According to the U.S. Constitution, the President of the United States has the power to pardon pretty much anyone. This is a broad, sweeping power that past administrations have used in a variety of ways, some more controversial than others. However, in recent years scholars, voters and politicians have wrestled with a strange question: Can a standing President pardon him- or herself? In today's episode, the guys speak with Professor Brian C. Kalt, the author of “Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies” to learn about the history and future of pardons -- and what to expect if a standing President attempts to pardon themselves.
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Episode Transcript
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Speaker 1 (00:00):
Welcome back to fellow conspiracy realist. Tonight's classic episode is
I think a great window into unprecedented times hashtag no pun.
Speaker 2 (00:11):
Left behind unprecedented presidential chaotic times. Yeah, can a president
pardon themselves? Is a question that you know, got a
lot more exploration when it became kind of a little
more of a possibility that it might happen. And then
this is really laying out the groundwork of the argument
(00:32):
you know, for and against this concept.
Speaker 3 (00:34):
And the answer is that, yeah, obviously a president can
parton themselves. Right, we don't even need this episode. Let's
get out of here.
Speaker 2 (00:40):
Yeah. Yeah, it's not as simple, quite as simple as that.
It's just some nuance to this convom.
Speaker 1 (00:46):
Yeah, we're speaking with Professor Brian C. Coult, who is
I would say, still the top legal mind on this
very specific question. And Professor profess us or called points
out several times things that just sound weird if you
weren't born in the US or live here where it's normalized,
(01:08):
Like talk to somebody from any other part of the
world and look at their reaction when you say, well, yeah,
kind of a US president can be a felon and
can run for office.
Speaker 3 (01:22):
They just can't be from Austria.
Speaker 1 (01:24):
They just can't be Arnold Schwarzenegger. Dang from UFOs to
psychic powers and government conspiracies. History is riddled with unexplained events.
You can turn back now or learn this stuff they
don't want you to know.
Speaker 3 (01:55):
Welcome back to the show. My name is Matt, my
name is Nola.
Speaker 1 (01:58):
They call me Ben. We are joined with our super
producer Paul, pardon me, decand and most importantly, you are here.
You are you, and that makes this stuff they don't
want you to know. This is a very special episode
for us today, friends and neighbors. In a way, it
is a follow up or I would see a spiritual
(02:19):
successor I love that to an earlier episode that we
did back in twenty seventeen, we explored the strange case
of Yellowstone's Zone of Death, a small area of land
in rural America where an odd loophole allows, what's the
best way to say, guys, allows in theory, someone to
commit a crime and avoid prosecut.
Speaker 4 (02:40):
Yeah, sort of like a purge zone where you could
just you know, all bets are off billy nilly crime
down USA. But as it turns out, with today's as
with today's question not quite so simple. So maybe listen
back to that episode if you haven't heard it in
a minute.
Speaker 1 (02:52):
Yes, and spoiler alert for all of you would be
super villains in the crowd today, it will not work
in practice. Do not attempt it. However, in this episode
we relied heavily on the work of Professor Brian c. Coult,
the man who discovered the loophole in the first place.
Speaker 3 (03:11):
And he actually wrote back to us and gave us
a few what would you call them, just some feedback
on some of the things we discussed. One of the
major ones is it's definitely cult as insult cult.
Speaker 1 (03:23):
Yes, and this when we received this email, we were
delighted because in the course of our research for the
Yellowstone episode, we learned more about the professor's work, not
just concerning the zone of death. We learned that for years,
Professor Cult has investigated a question increasingly important and relevant
(03:46):
in the realm of American politics. It is this, can
a president pardon him or herself? And that's what we're
looking at today. But today, you see, we are lucky
enough to go directly to the prime source. Friends and neighbors,
We would like to introduce you to Professor Brian Cault.
Thank you so much for joining us on the show today.
Speaker 5 (04:07):
Professor, Oh, thanks guys, glad to be here.
Speaker 3 (04:10):
First off, can you tell us, just in your own words,
what you do every day, What are you studying, what
are you teaching.
Speaker 5 (04:16):
Well, I'm a law professor at Michigan State University and
I teach towrts and administrative law, but my research has
pretty much always focused on constitutional law and more recently
the constitutional law of the presidency, things like pardons, impeachment,
twenty fifth Amendment, that sort of stuff.
Speaker 1 (04:36):
Fantastic, So first things first, Professor, I think what would
benefit everyone in our audience right now would be to know,
in approachable terms, what is a presidential pardon. We hear
the term thrown around a lot, and it seems like
occasionally there are also misconceptions about this.
Speaker 5 (04:57):
Yeah, so there definitely are. Presidential pardon is actually a
range of possible things, but at its fullest extent of
pardon forgives an offender for the crime that they committed.
That's the most common way it's practice. It's usually someone
(05:19):
who's already served their sentence, but the pardon sort of
removes the conviction from his record removes any sort of
consequences that remain, so if he's still suffering from some
civil rights deprivations, like he can't own a gun or
can't get certain licenses, those go away along with the conviction.
(05:40):
The president can also pardon people before they've been convicted,
or even before they've been charged with anything. And if
he does that, then by getting rid of any sort
of criminal consequences for the person's actions, that can prevent
them from going to prison. And if the person is
in prison in the middle the sentence, the pardon would
(06:01):
free them. The pardon can also be something less than that.
It includes the power to commute a sentence, so you're
not overturning the conviction, but you are shortening the sentence,
maybe letting them go earlier or immediately. There's also the
power to remit fines. If you had to pay a fine,
(06:21):
they can the president can make them pay you back.
Important limits on this, though, are that the president only
has this power with regard to federal offenses, and it
has to be something you've already done, so the president
can't pardon you in advance and give you sort of
a free path to commit crimes. That then won't be crimes. Finally,
(06:44):
there is an exception for impeachment because the Constitution makes
the impeachment process separate from the criminal justice process. So
if someone's being impeached, the president can't do that. You
can't use the pardon to interfere with or overturn the
result of an impeachment.
Speaker 3 (07:00):
Can you clear up for us just a little bit,
what exactly is the state of being impeached and how
does that relate to being fired from a job or
having a vote of no confidence?
Speaker 5 (07:15):
Sure, So the impeachment process is People talk about impeachment
to refer to the whole process, but impeachment is just
the first part. So the House of Representatives, by a
simple majority vote, can impeach any executive or judicial officer
of the federal government, and that's kind of like indicting someone. Basically,
(07:36):
the impeachment is an accusation, and so if the majority
of the House votes to impeach, then you are impeached.
But that just means you're on trial in the Senate,
and the Senate is the decision maker. You're on trial
in the Senate. The vice president presides over the Senate.
But if the president is impeached and on trial, then
(07:57):
the Chief Justice of the United States presides, and if
a two thirds majority of the Senate boats a convict,
then you're convicted. You're removed from office at that point,
unless you are no longer in office. That's a whole
other that's a whole other chapter of my last book.
Can you impeach people after they've left office? But impeachment again,
(08:21):
just refers to the accusation. It's like the indictment.
Speaker 1 (08:25):
Oh, I see, so not immediately in and of itself
a proven thing, just an accusation exactly.
Speaker 4 (08:35):
It was like Clinton, for example, you know, did not
get removed from office, but was impeached. Correct Or is
am I misremembering that?
Speaker 1 (08:42):
Censured?
Speaker 5 (08:43):
I believe, yes, yeah, Clinton, Clinton was impeached, Andrew Johnson
was impeached. Neither of them were convicted. So it's a
it's a blight on the record. I don't know anyone
who would invite an indictment and say it's no big deal.
But without being convicted, he wasn't found responsible for whatever
(09:05):
it is he did.
Speaker 4 (09:05):
Have we seen a successful full realization of the impeachment
process from a president. I can't think of.
Speaker 5 (09:11):
One, not of a president. The only people convicted under
the federal system have been judges.
Speaker 1 (09:19):
And going back to this concept of pardons, we're interested
in learning a little bit about your personal story. I
believe you were some of your first published work on
this concept occurred in nineteen ninety six during your time
with the Yale Law Journal, or you wrote for the
(09:40):
Yale Law Journal in this regard, when did you first
begin investigating this question and what originally inspired you to
do so.
Speaker 5 (09:48):
So I was a law student at Yale and I
was taking a criminal procedure class. And people make fun
of Yale sometimes Yale Law School for being overly theoretical,
and sometimes that's that's a fair, uh fair accusation. But so,
for instance, in our criminal procedure class, we were talking
about presidential pardons, which is not really an important part
(10:12):
of criminal procedure in the ordinary course of things. But
the professor had some theories and we were talking about
the whole structure of the constitution. And you know, okay, great,
how that's how it works in practice, but how is
it in theory. That's what we really want to know.
So we're talking about pardons, and I raised my hand
and I said, can the president pardon himself, and Professor
thought about it for a second, said I don't know.
(10:34):
Why don't you look into that? So that weekend I
went to the library and I read a bunch of stuff.
And I came back on Monday and I said, well,
I did some research and can't say for sure, but
I think the better argument is that he can't. And
he said, well that sounds interesting. Why why don't you
(10:55):
write something up. I'll you know, I'll call it an
independent study. You get a couple of credits for it,
maybe you could get it published somewhere. So I spent
the next weekend doing a rough draft of that, submitted
it to the Yale Law Journal, got rejected. Asked the
professor olsh I sent it around to other places. He said, well,
you know law reviews. The way that works when he
(11:17):
publish is as a student, it's kind of hard to
get published. Send it out to a hundred places. You'll
probably get a hundred rejections, but who knows, maybe you'll
be lucky, you'll get ninety nine rejections. And before I
did that, I resubmitted it to the Yale Law Journal
and they decided to take it. On the second try.
(11:40):
One of the main concerns about publishing it was it
just it seemed like a ridiculous thing to even think about, right, like,
why would a president, how could that ever happen. This
was in the Clinton administration, It was before Whitewater really
got heated up. It was before people started asking about
the self pardon in the Clinton contexts. So my first
(12:04):
task was just sort of making it seem relevant. So
I talked about Nixon, and Nixon had asked his lawyer
about it, and his lawyer said that Nixon could if
he wanted, pardon himself, and some of the others in
the administration said he couldn't. So it was talked about then.
Some people speculated about it a little bit at the
end of the George H. W. Bush presidency, which back
(12:26):
then was not that far in the past, when he
pardoned all of the Iran contract defendants after he had
lost the election, and some people thought maybe he'll pardon himself.
But it was you know, they made fun of it,
they said, this is kind of kind of out there.
And what I think is most important about this, and
(12:50):
I continue to say this is the fact that it
seemed unlikely, the fact that it seemed out there is
exactly why it needed to be written about then, because
now you see this fast forward to twenty eighteen, President
Trump says he can pardon himself. Now everyone's talking about it,
(13:10):
and no one can make the arguments that they have
about self pardons without thinking about Trump. And if you
don't like Trump, you don't want him to be able
to pardon himself. And if you do like Trump, you
do want him to be able to pardon himself. And
the Constitution doesn't care if you like Trump or not.
Either presidents can pardon themselves or they can't. So really,
(13:31):
the only time you can get the real analysis, get
the real answer to the question is when it's purely hypothetical,
and at that time it was, and so I wrote
at the time what I thought was the best argument
against self pardons being constitutional. It was sort of a
curiosity out there for many years, and then a few
(13:55):
years ago, in twenty twelve, I wrote a book that
looked at a bunch of these sorts of questions. Can
the president be impeached while he's after he's president? Can
you prosecute a sitting president? Can the president pardon himself?
What about Section four of the twenty fifth Amendment for
disabled presidents. There's a loophole and term limits where where
(14:16):
Obama or George W. Bush could come back into office
looking at sort of crazy things like that, but again
with the idea of looking at it when it's not happening,
so that we can figure out what the right answer
is and not what the politically preferable one for us is.
And the book came out in twenty twelve, and the
(14:40):
argument about self pardons, I added some arguments against them.
I also looked at the other side, so the book
gives both sides of the argument on it. But again
in twenty twelve, it's still all seemed hypothetical. So I'm
glad that I said what I had to say before
I knew whether whether I wanted the p to partner
(15:00):
himself or not.
Speaker 1 (15:02):
Absolutely, And that book is constitutional cliffhangers, a legal guide
for presidents and their enemies.
Speaker 4 (15:07):
So it's interesting you spent so much time laying the
groundwork and answer asking these questions in a hypothetical bubble
kind of and now we're seeing maybe the first example
of a president where these questions are pretty relevant because
of potential dealings before he was president. With his very
complex business network and things like that that maybe haven't
(15:29):
quite been in play in the way that we're seeing now,
do you see it that way?
Speaker 5 (15:34):
Yeah? And so the book tries to sketch out these
sort of hypothetical scenarios just to illustrate, just to make
it make it more lifelike, give some color to it.
And a lot of the things that I try to
put in there, I was thinking about, like if this happened,
what would have to what would have to happen before
(15:55):
a president would partner himself. But it have to be
a really weird situation. So that's part of the question
is when would it happen, what would it look like?
And I can't see the future, but I think that
the book holds up pretty well. In the chapter on
can you prosecute a sitting President? It sort of, I
don't know. It resonates a little bit with what's been
(16:18):
going on this last year and a half. The self
pardon chapter, similar things, the one on twenty fifth Amendment,
which people are talking about you. When I wrote this book,
I had to try to convince people one of these
things might happen someday. It would be good if we
thought about them now, and then within six months of
Trump coming in, we had three of the six chapters
(16:40):
in the news for if you count the people saying
that they should impeach Hillary Clinton, and so, yeah, I
didn't think any of this would be relevant anytime soon.
I didn't know we would elect a president who tried
to hit for the cycle based on my book.
Speaker 1 (16:57):
And one thing that is fascinating about various conversations we've
seen regarding the concept of self pardoning is, well, I'd
like to go back to the earlier example you alluded
to with Nixon briefly in some work. It was surprising
(17:18):
to me and I think to many of us to
learn that Nixon had reportedly asked his own legal team
about this concept way back during his time in office.
Is that correct.
Speaker 5 (17:32):
Yeah, I'm not sure if he asked the lawyers or
if he just said to the lawyers, what are my
options and they came up with that, But a pardon
was definitely something that was important, and so the question was,
if he's going to get a pardon, does he have
to wait and get it from Ford if he resigns,
or can he give it to himself, or you know,
(17:54):
maybe they wouldn't have even prosecuted him. We're not sure.
So it was even then, I know it was very real.
At the time, it was still hypothetical. And the lawyer said,
if you pardoned yourself. The option was presented as you
pardon yourself and then you resign, because just politically, there's
no way that you could do that and avoid impeachment.
(18:18):
Impeachment was already the process was already rolling. That would
have just accelerated it, and that would have been the end.
And he knew it. He knew it would have been
the end.
Speaker 3 (18:27):
Can we jump back to Article two, Section two of
the Constitution just to really go over and lay the
groundwork of exactly what the Constitution says. A pardon is sure.
Speaker 5 (18:39):
So I can pull up my little copy of the
Constitution here, awesome Article two. Article two talks about the presidency,
and here we go. Article two, Section two, Clause one,
the president dot dot dot shall have power to grant
reprieves and pardons for a against the United States, except
(19:02):
in cases of impeachment. And that's it. That's all it says.
Speaker 3 (19:06):
So everything else is just us kind of deciding.
Speaker 4 (19:10):
Pretty open and with that language, that pretty vague language,
you get what I've seen described as one of the
most king like powers of the presidency. That's how it appears,
and I think that's pretty accurate. I can't remember where
I saw that, but it just seems like a wave
of the hand and all your sins are wiped away.
Speaker 5 (19:27):
Yes, and it is one of the most king like
and I think just sort of thinking about Trump and
the pardon power, it's it's easy to see why it's
very appealing to him because it's the most king like,
or you could say, the most CEO like. He just
sort of signs this paper and he doesn't have to
(19:47):
go through Congress. He doesn't really have any potential for
a court reviewing it because under the so called political
question doctrine, the courts will not look he had a
pardon and decide if it was warranted or not. So
it's unreviewable in court. And he just says it and
(20:08):
it happens. He doesn't even need a lot of people
to sort of follow along. It's not like something he
has to build support for. If he says, let this
guy out of prison, they let that guy out of prison.
So it's the closest thing, like you said, to what
a king could do, and it is it is very tempting.
(20:32):
I can imagine for presidents to look at that and
think about how they might use it.
Speaker 1 (20:38):
And we know that traditionally presidents have not immediately entered
office and began exercising this ability to pardon people. But correctly,
if I'm wrong here, did the current president, Donald Trump,
as we record this, did he begin pardoning people earlier
(21:00):
than in his time in office than other presidents?
Speaker 5 (21:05):
Well, in recent history there's been sort of a shift.
Presidents have pardoned less recently than they did in the past,
and they sort of waited till the end to do
many of them. But it wasn't the earliest in a
presidential term that a president had done it. It was unusual,
(21:28):
but it wasn't unheard of. And in a way that's
actually a good thing because the design of the part
and power. We talk about it being a king like power,
but remember the president's not a king. And the whole
reason to give the president this power instead of giving
it to say, Congress, by a congressional vote, you give
it to the president because the president is politically accountable.
(21:50):
He's always politically accountable, even though he doesn't run for
reelection for two more years, even if he's in his
second term and not going to be running for reelection.
He's politically accountable to the whole country all at once.
He's got political capital to spend, and that's where the
framers of the Constitution wanted the power to reside. So
(22:12):
if presidents do what President Obama did by waiting until
after the election to commute all of those sentences and
the disproportionate sentences for drug offenses, he'd been talking about it,
but he didn't do it until after the election, Or
(22:34):
President Clinton on his last day in office, pardoning Mark Rich,
pardoning Susan McDougall, pardoning Roger Clinton, his own brother, waiting
until after the election when he's not at all politically accountable.
Or President George H. W. Bush partnering the Iran counter
defendants again after the election. The president is supposed to
(22:56):
be politically accountable. It's sort of this little loop that
he still has the power even when he's not. But
that's not how it's supposed to work. So when president's
pardon early, that's good because then that means that Congress
can respond and the voters can respond in the term elections,
or in the presidential election.
Speaker 4 (23:17):
All right, we're going to be right back with more
from Professor Called.
Speaker 6 (23:19):
After a quick sponsor break, and we're back Professor Called.
Speaker 3 (23:30):
Please correct me if I'm wrong, but I'm just going
to make a statement here that is what I believe
to be true. My understanding is that much of law
is based upon the previous findings and judgments that have occurred,
Like the guiding principles of what is now law is
from the past.
Speaker 5 (23:50):
Right, Yes, to the extent that we have precedent, we
take those presidents seriously or are bound by them, depending
on what kind of precedent it is.
Speaker 3 (23:59):
Is there any foundational case or president that has to
do with this at all? A president pardoning himself.
Speaker 5 (24:07):
Well, we don't have any case law directly on point
on presidents pardoning themselves. The argument against self pardons relies
on a whole bunch of theories and doctrines that haven't
really been tested either. It really is fair to say
(24:27):
that if a president did this, it would be completely unprecedented.
Now I'll let me back up a little bit. There
are cases in the past of other people with pardon
powers purporting to pardon themselves. Mayors and governors, and those
cases are sort of obscure. They hadn't really been tested
(24:51):
in court, and so we don't have any precedent from
those either. But even if we did. The US Constitution
presidential pardon power is different, is distinct from any state
or local pardon power.
Speaker 3 (25:06):
What was doctor Bonham's.
Speaker 5 (25:08):
Case, So this was a British case back in the
seventeenth century, and the issue in that case is I
would say, the power of Parliament over the King and
(25:28):
the power of the common law over the parliament. So
I don't know, it's sort of a fundamental case for
judicial review. People think about it as looking at the
ability of courts to strike down statutes or not. I
(25:50):
haven't thought about it much in terms of the pardon power.
But basically the principle of Bonds case. What you'll see
it's cited for is people will say, if there's a
statute that Parliament passes, because this is an English case
and it's contrary to what have you natural law or
(26:12):
common right and reason was how they put in that case,
then then the judges have to they have to declare
it void. And so again this sort of spawned the
concept of judicial review. A court looking at something that
Congress has done or that a president has done. If
it's illegal, then the court has to say so. They
(26:36):
have to say what the law is. And if the
law is that this statute is unconstitutional, then they're supposed
to say so. The actual case was about, you know,
sort of a weird medical licensing issue back in seventeenth
century England. So I'm not I'm not real up to
date on what exactly was going on, doctor Bonham, and.
Speaker 3 (27:01):
The Washington Post just cited it as a foundational case
for possibly this subject.
Speaker 1 (27:07):
And as we're speaking about some popular sources of media
and news here in the US, Professor, earlier in May
of twenty seventeen, you wrote a piece for the Wall
Street Journal about the twenty fifth Amendment and specifically section four.
I believe we mentioned it briefly at the beginning of
(27:31):
our conversation today, but I was wondering if you could
tell us and the audience what the significance of Section
four of the twenty fifth Amendment is in this conversation.
Speaker 5 (27:46):
Well, Section four of the twenty fifth Amendment is where
the sections three and four deal with presidential disability. If
the president is unable to discharge the powers and duties
of his office. Then Section three allows him to say
so and hand over power to the vice president, and
then when he's better, he says, okay, I'm better now
and he takes power back. Section four is thru when
(28:09):
the president can't declare that he's disabled or won't, and
it allows the vice president and a majority of the
cabinet to declare that the president is unable to discharge
the powers and duties of his office. Then the vice
president becomes acting president. It doesn't remove the president from office,
(28:29):
and the president is still in office. He just is
temporarily stripped of his powers and he can say I'm
not disabled either right then if there's a disagreement there
or if he's unconscious, once he regains consciousness, he can
say I'm fine. If the vice president and cabinet disagree,
then it goes to Congress and Congress has to decide.
(28:49):
But the deck is stacked very heavily in favor of
the president. There needs to be two thirds in the
House and two thirds in the Senate agreeing that he's
unable to his job before before he loses. So it's
it's really it's never been used. Section three has been used.
(29:09):
President's going in for Kolonoskoy, he's going to be unconscious
for a couple of hours. He hands over power to
the vice president. That's happened three times, but Section four
has never been used. And you know, a lot of
people look at it and think, oh, well, if the
president is nuts, then the vice president and cabinet should
say so, and then then that'll remove him from office.
(29:31):
But it won't. If he's loocid enough to contest the action,
it would probably result in him getting his powers back
within a few days, and now he'd be mad. So
it's not I'm not sure how it relates to self pardons,
other than the possibility that if they thought he was
(29:51):
about to try to pardon himself, maybe they could invoke
Section four. I went, I went and found the Washington
Post piece you're talking about. I had read it before
Lawrence Tribe normalize and it's one of these things and
I and I should say this in general, a lot
(30:12):
of the discussion about presidential self pardons gets these headlines,
and it's not always the authors that let's say this.
Sometimes it's just the headline oversimplifying. But the headline says, no,
Trump can't pardon himself. The Constitution tells us so, and
you can find things that are equally certain of people
(30:33):
saying yes, Trump can pardon himself. The Constitution tells us so,
and they're both wrong. The Constitution doesn't tell us one
way or the other. We've got it. It's Schrodinger's cat, right.
We won't know until there's an actual case and when
and if it happens a chortal rule on it, then
we'll know. All we can say at this point is
(30:55):
we don't know. The president can try. It might work,
it might not, and we can say, hey, here's what
I would say if I were a judge, and I
would agree with Tribe painter in Eisen in this Washington
Post piece saying, I think the best reading of the
Constitution is that the president can't pardon himself. But there
(31:18):
are good arguments on both sides. And I found where
they talked about Bonham versus College of Physicians. That was
their source for the notion that you can't be the
judge in your own case. I'm actually kind of proud
that it didn't occur to me to link Bonham's case
(31:41):
with self pardons, because I think that's a very roundabout
and obscure way to get to that point. One of
the main arguments that the president can't parton himself is
that you can't be the judge in your own case.
And remember I said that it was about some obscure
medical licensing issue. It turns out that's the part of
(32:01):
the case that they were drawing on, which is why
I didn't even occur to it. It didn't even occur
to me.
Speaker 4 (32:07):
Isn't there also the notion that a pardon is inherently
the nature of it is that it's for someone else.
Speaker 5 (32:12):
Yeah, So that was the main argument that I added
In twenty twelve. A friend of mine in law school,
when I was writing this original article was only thirty
pages long. I couldn't put in everything I wanted. He said,
you should argue a textual argument that the pardon is
something that's inherently bilateral. It's something you have to give
(32:32):
someone else, not something you give to yourself. And I said, now,
I don't know. I don't think so. I don't want
to make room for that. Then sixteen years later, when
I'm writing it, it occurs to me, I think about
it more that that's not actually worth including, that's not
just worth including that's actually the best argument there is.
All of this other stuff is sort of well, like
(32:55):
you can't be a judge in your own case. Of
courts will say you can't be the judge in your
own case when they're ruling against you being the judge
in your own case. But there are other instances where
they allow all kinds of self dealing, and they conveniently
forget to mention that. But if you can find something
in the text of the Constitution itself, that's the best
kind of argument for me. That's persuasive to me. So
(33:17):
with that argument, the idea is the argument that the
president can pardon himself is it doesn't say he can't.
It says he shall have power to grant pardons, and
it says there's an exception for impeachment. It doesn't have
any other exceptions. They say, well, if they wanted to
make an exception, then they would have said, and they didn't,
so he can. He can do it. But there are
(33:37):
limits inherent in what the definition of a pardon or
granting a pardon is in itself. So, for instance, I
mentioned before, you can't pardon someone for something he hasn't
done yet. You can only pardon past acts doesn't say
that anywhere in the Constitution. Where do they get that from. Well,
(33:58):
the courts are very clear that you can only pardon
things that have already happened. But it's inherent in the
notion of what a pardon is. So this argument is
the same thing that a pardon is just by definition,
something you give to someone else. And you can look
at other words that have the same Latin root paradonai,
(34:18):
like donate or condone. Like you wouldn't say I condone
my own actions. That doesn't make sense. You wouldn't say
I'm making a donation to myself. That doesn't make sense.
Speaker 4 (34:29):
If you said pardon me, you're asking for others to
excuse something that you have done. In like a social situation.
If I say pardon me, Matt, or I have beltched
or something, Matt would say of course, yeah, good sir.
Speaker 3 (34:40):
You know, and stop a builching in my direction.
Speaker 5 (34:44):
Yes, that probably also has roots in Mary Old England too.
But I think in addition to the argument that a
pardon is inherently something you give to someone else, and
the notion that the courts prove of people being the
judge in their own case, there's also a historical argument
(35:06):
based on how the people debating the constitution the Constitutional
Convention talked about pardon powers. They were worried about giving
the pardon power to the president, and Edmund Randolph, one
of the delegates, proposed This is all recorded in James
Madison's notes. Edmund Randolph said, well, we need to make
(35:27):
an exception. We need to not allow presidents to pardon
people for treason. And the reason he said was the
president may himself be guilty. He said, the traders may
be his own instruments, and so we can't let the
president have the power to pardon these other traders that
he's a trader along with. And James Wilson, another delegate
(35:50):
later on the Supreme Court responded, he said, if the
president be himself a party to the guilt, he can
be impeached and prosecuted. And everyone said, oh, yeah, that's right,
And they voted and rejected Randolph's motion, and they didn't
restrict the pardon power for cases of treason, and they
didn't talk about self pardons. But what this tells us is,
(36:12):
first of all, if any of those people thought that
the president could pardon himself, the notion that, well, if
the president's guilty, we can just prosecute him. That wouldn't
have been persuasive at all, and no one said that,
so they must not have thought that the president can
pardon himself. Additionally, if anyone thought the president could pardon himself,
(36:33):
then they would have talked about restricting that, not saying
he couldn't pardon traders, but that he couldn't pardon himself.
But they didn't. They did they say the president can
pardon himself. No, but I think that that little piece
of evidence shows that they thought that. It literally went
without saying that a self pardon is not possible. I
(36:53):
think that there is an argument on the other side
of this, which is that the president is both the
sovereign and a person, and so he can pardon himself
because it's it would be Trump, the president giving a
pardon to Trump the person, and so it's inherently bilateral
that way. So you know, it's it's not a killer argument.
(37:16):
Like I said, there are good arguments on both sides,
but to me, it's a it's a pretty persuasive one.
I think it's the best argument against self pardons because again,
it's in the constitution it's inherent in the definition of
the word parton itself.
Speaker 1 (37:29):
Absolutely, But where does this lead us? Will be back
after a word from our sponsor. Going off our hypothetical
pardon me example, let's go into the realm of speculation
(37:49):
just a bit. Let's imagine that the current president, or
just any president does some how successfully attempt this move,
they successfully pardon themselves. What would happen afterward? What sort
(38:14):
of impact would this have on the US government, on
the hearts and minds of the public. What kind of
consequences or implications could we possibly expect if something like
this were ever to occur.
Speaker 5 (38:32):
Yeah, I think that ultimately that's the most important question, because,
just like impeachment, the pardon power exists in a political context.
If the president thinks it's a good idea to pardon someone,
then he does it, and that's why he has the power.
And so thinking about how it would look in my
(38:54):
own writing, I set up this hypothetical example of a
president and who has been accused of all these crimes,
and there's some questions whether you can prosecute him while
they're in office. So he's running for he's in a
second term, so there's there's an election going on and
it's very divisive, and the other party is saying the
(39:18):
president's a crook, and if I get elected, the Kennedy,
the other party says, if I get elected, I'm going
to appoint this guy as prosecutor and we're going to
go after the president, kind of like what Trump was
saying he would do about Hillary Clinton, although he didn't
end up doing it, and that person wins the election.
(39:40):
And the President has been saying all along, I didn't
do anything wrong, and my people in my administration haven't
done anything wrong. And so he waits until again he's
not politically accountable anymore, and he says, well, I'll just
read here. He says, for ten months, these scurreless accusations
(40:01):
have paralyzed the country. We've been unable to work on
the real problems Americans face. That problem was about to
get worse. Enough is enough with this pardon. I'm ending
this expensive distraction. Right. He has the power to do this,
and he's going to use it. So that's how the President,
i think most likely, would frame it. That he's not
(40:23):
forgiving himself for doing something wrong, he is preventing these
runaway prosecutors from doing an injustice to him. That's how
he would spin it, and a certain percentage of the
country would probably go along with that. So politically, the
question would be how many people would buy that line
(40:46):
of rhetoric. I think it would be a scandalous enough
act to enough people that the president would wait until
he was on his way out of office to do it,
especially if he couldn't be secuted while in office. That's
an open question too. But if you can't prosecute the
president while he's in office, and you can, if you're
(41:07):
the president, pardon someone who hasn't been charged with anything yet,
then that sets up this potential. So on his way
out of office he pardons himself. If he's on his
way out of office, then the political fallout as much less. So,
to answer your question, if the president's not on his
(41:28):
way out of office, if they're pursuing him and he
says I'm I'm just gonna pardon myself, I think the
political follow would be tremendous. I think the prosecutor who
was pursuing him would not just say, oh, I guess
I can't prosecute you. Then he would challenge it in
court because it's not clear that the president can pardon himself.
It would be swiftly appealed up to the Supreme Court,
(41:51):
I think, but it would. It would It would be
a divisive issue, and the people who agree with the
president that he didn't do anything wrong would think it's great,
and the people who disagree with the president and think
that he's a crook would think that it's terrible. And
I think there'd be a lot of people in the
middle who would say, I don't know what happened, if
he's a crook or not. But I don't think that
(42:12):
pardoning yourself is okay. I think, you know, you need
to not put yourself above the law. You need to
let other people make that decision. And that takes us
back to Nixon. I mean, talk about what would have
happened if Nixon had pardoned himself. We can only speculate,
but we do know what happened after Nixon resigned and
shortly thereafter Gerald Ford, who came into office untouched by
(42:35):
the whole Watergate scandal. He had very high approval ratings
and he decides he's going to pardon Nixon and immediately
very controversial decision. His approval ratings drop most of the
data that I've seen suggest it cost him the election
in nineteen seventy six. Two years later, he's running for reelection.
He are not reelection, but to stay in office for
(43:00):
more years, and he narrowly loses. He it was a
close election, and if you look at the data what
people thought about that part and that pardon cost him
the election. So you can only imagine how much worse
it would be if Nixon had done it himself. Ford said,
we've got to move on. This is the right thing
to do. If Nixon had said that, it wouldn't have
(43:22):
been convincing at all. So politically, if the president's still
in office, it would be a it would be throwing
a bomb. If he's on his way out of office,
it would be controversial, but he wouldn't be president anymore,
so it wouldn't It would be tabloid fodder, right, it
(43:42):
would be cable news fodder, but it wouldn't. It wouldn't
have the same sort of political impact. I think everyone
would just wait and see what the courts had to
say about it.
Speaker 1 (43:51):
But then on the flip side of the speculative world,
we're exploring here, what if a standing president or president
on the way out attempts to self pardon, and that
attempt fails, wouldn't they still encounter the same enormous potential
(44:13):
for backlash because I imagine a lot of people who
were going back to what you said about the supporters
thinking it's a good idea, the opponent's thinking it's a
bad idea. Wouldn't a lot of people in the anti
administration side see that as a smoking gun, more or
(44:34):
less indicating some sort of truth to all the problems
they had with that administration.
Speaker 5 (44:40):
Well, I think they could. They could look at that
and say, see, see what kind of person this is.
But I think that supporters would say what they've been
saying all along, if they if they have supported them
this long in saying that the accusations against him are fause,
they would probably go along for the ride there too.
And and that's an important thing about pardons that I
(45:03):
think has overlooked a lot. I had a piece. I
don't know if anyone saw it, but I I but
I liked it. It was in the New York Daily
News a few weeks ago, where you hear people say
this a lot, that a pardon is a declaration of guilt,
and that accepting a pardon is an admission of guilt,
(45:24):
and so you, yeah, you might. You might have people saying, uh, see,
he pardoned himself. That means he's admitting he was guilty.
But that's that's actually not right. That notion that a
pardon is an admission of guilt, accepting a pardon is
an admission of guilt is taking this one line from
this one Supreme Court case out of context and reading
(45:49):
it into a completely different one and and really missing
the point. Presidents almost always use pardons to forgive guilty
people who may don't deserve the punishment that they got,
but they can also Presidents can also use the pardon
power to exonerate people, and it's not the most usual
(46:11):
use of it, but sometimes they do. President Ford pardon
Nixon for giving someone who is guilty. He also pardoned
Tokyo Rose. She had been convicted of making propaganda broadcasts
during World War Two, and she was an American citizen
living in Japan, and they said, oh, she was broadcasting
(46:33):
these terrible things. Turns out sixty minutes does his story.
It turns out the case against her was based on
perjury and it was totally trumped up. Charges against her
and she was completely innocent, and sixty minutes had this
big story about it, and President Porziella, this is terrible.
Let's do what we can to pardon her, and he
(46:55):
did not because she was guilty. It wasn't a declaration
of guilt because she wasn't guilty. And when she accepted
the pardon, she wasn't admitting she was guilty. She was
accepting it because she wasn't. And Trump himself just pardoned
Jack Johnson posthumously, the boxer again, not because he was
guilty but should be forgiven, but because he wasn't guilty.
(47:18):
The case against him was bogus. So this notion that
he won't do it because it would require him to
admit guilt, I think is wrong, and people are missing
the potential for a president to put it in the
language that I had it in my book, where he says,
I'm not guilty, I'm innocent, and these people are coming
(47:38):
after me anyway even though I'm innocent. But I have
the power to stop that, so I'm going to use
that power. That's what he would say, and so any
political reaction would have to reflect that context. If the
president was saying I'm guilty, but Hey, it's good to
be the king and pardon himself. That would be much
(47:59):
more controversal, much more unacceptable, but I think also, as
a result, much less likely to happen.
Speaker 3 (48:05):
So let's talk kind of an out there hypothetical strategy, Noel,
that you were talking about earlier. Would it be possible
for a sitting president to use one of the clauses
to step down as president temporarily accept a pardon from
the person who is then president in that momentary timeline,
(48:29):
and then step back in.
Speaker 5 (48:31):
Yes, so, I guess that's what you were referring to
Section four and twenty fifth Amendment about Yes, the president
could do that. Now, it's important to make a distinction
about whether such a pardon would be valid and whether
such a pardon would be able to be done with impunity,
(48:53):
because if the president did that, and then presumably you know,
once he's back, he pardons the vice president quid pro quo,
those pardons would be valid. Right when you're the president
or when you're the acting president, you pardon someone that
that pardon sticks, But you also can be impeached for that,
(49:15):
and you can be prosecuted for it too, if it's
part of a criminal enterprise. So if if I give
the president a million dollars in exchange for pardon and
he pardons me, that pardon is valid, but we're both
going to go to prison for the bribe. And because
you can only pardon something that's already been done. If
(49:35):
the pardon is this criminal, you can't pardon yourself for
pardoning yourself, right the last one. They'll always get you
for the last one. So yeah, the president could could
hand over power to the vice president, the vice president
pardons him, hands power back, he returns the favor, or
he could resign. That's that's basically what Nixon and Ford did.
(49:56):
Nixon resign, Ford pardon Nixon for didn't need a pardon,
So there is no sort of quid pro quo there.
If it's part of a corrupt conspiracy, then it would
be punished as part of a corrupt conspiracy, even though
the pardons themselves would probably stick. I don't think there's
any question about that. There are some people who would
(50:18):
say that a court would refuse to honor such a pardon,
but I based on the case, I don't see that happening.
I think it's also worth mentioning how this would play
out if you have a pardon, it doesn't actually mean
anything unless someone tries to do something to you that
the pardon says they can't. So if you have a
pardon and they say, well, I'm going to prosecute you say,
(50:39):
well you can't because I have a pardon. Then they
try to prosecute you anyway, then the court has to
decide whether the pardon is valid or not. If no
one tries to pardon the president, he pardons himself, or
the vice president pardens him and no one tries to
prosecute him, then we don't know if it's valid or
not because it doesn't matter. It's only when he tries
to do something that would only be he'd only be
(51:02):
able to do if the pardon were valid, that we
would find out. There's there's you know, a lot of
a lot of things would have to happen before a
president would get prosecuted. It's not just the self pardon
being a remote hypothetical, it's it's also the prosecution itself
that was remote. So, you know, I love talking about
(51:24):
these hypotheticals, but it's it's also hard to imagine the
vice president wanting to get his hands dirty in that way.
I'm not saying that it would never happen. I'm just
saying that the more things you add in that make
it unlikely, the more hypothetical it is, the less instructive
(51:46):
it is. It's hard to draw lessons from it.
Speaker 4 (51:49):
Ford Nixon. To me, that's like a backroom conversation where
Nixon is like, no, that's how I see it. Why
did Ford parton Nixon knowing there would be political fallout.
It seems like it was something he was like doing
a favor for for Nixon.
Speaker 5 (52:03):
Yeah, there are there are a lot of people who
think that Nixon made a deal with Ford. I'll resign
and then you pardon me. And I think Ford was
inclined to pardon Nixon because that's just the kind of
guy that Ford was. He he didn't he didn't think
that we needed to continue beating up on Nixon. He
(52:23):
thought that losing the office was punishment enough, all that
sort of stuff. And I don't I don't think that
Nixon really had any leverage over Ford. Like if he says, well,
I'll resign, but only if you promised to pardon me. Ford,
if he was if he was answering honestly, he said, well,
I was going to pardon you anyway? Why are you
(52:43):
saying that? Or or he could say why I which
which he actually did say. This is all in in
his autobiography, and it's been reported and al Haig's book. Well,
Haigu came to Ford before Nixon resigned. Haigu was Nixon's
(53:04):
chief of staff and said will you will you commit
to pardoning Nixon? And Ford didn't say yes, and he
didn't say no. And when he told his people later,
they said, well, you need to be more clear. You're
not committing to anything. So he called up hag He said,
I'm not committing to anything. But Nixon didn't have any leverage.
(53:26):
He was going to get impeached and removed. He was
going to have to resign anyway, pardon or no pardon.
Did he really want to pardon? Sure? Was Ford going
to pardon him anyway? Sure? But was there a deal?
I don't think so.
Speaker 4 (53:39):
I think what I was getting at was that it
was more of a courtesy. And I'm wondering why the
conversation now isn't like, well, of course, Pence will pardon Trump.
Why are we talking about Trump pardoning himself when the
president has kind of been that has a courtesy, your
VP will pardon you anyway.
Speaker 5 (53:56):
Well, I think maybe Pence will look at what happened
to Ford when Ford pardon Nixon, and say, if I
want to get elected in twenty twenty or whatever the
next election is, if this happened, I would have to
think seriously about whether to do this or not. And
if whatever it is that he's partnering Trump for is
something that involves himself as well, then that would be
(54:22):
politically difficult for him to do. Ford had the political
space because he hadn't been mixed up in Watergate. He
had the space to do that and not have it
look like an inside deal. In the same way, when
Bush pardoned the Iran contract defendants, that was controversial for
(54:43):
that reason because Bush was one of them. It looked
like he was helping them out of a mess that
he was in. Two So, yeah, a lot would turn
on that is Pence involved in whatever he's partnering him
for or not As far as courtesy is concerned, you know,
it's it's a political question. He would he would look
(55:04):
at the polls and they would they would survey people
and he wouldn't have to decide right away. This all
turns on the notion that the president is being prosecuted
for something, though, and I think, yeah, that's that's possible
that a former president would be pursued by a prosecutor.
(55:24):
But without knowing exactly what the case is and exactly
what the what the dynamics of it all are, it's
hard to say what Pence would or wouldn't do in
that situation. Because if if there's a smoking gun and
he looks guilty and it looks bad, then a pardon
would look bad. And if it looks like it's some
technical thing or some disputable thing, and Pence wants the
(55:47):
country to move on and he thinks that he can
sell that idea that this is about moving on, then
maybe he would. But he would he would have to
look at what happened for it and and realize that
unless he has thirty points of approval ratings to the spare,
he probably has to be real careful about.
Speaker 1 (56:05):
That, because it's tantamount to political suicide, or at least
it seems that's the That's the way the average voter
would would look at a vice president right there, would
gaze unfavorably upon that, regardless of the circumstances that led
to that decision.
Speaker 5 (56:24):
Well, I think that's the main thing that's different between
now and Watergate. You can talk about an average voter
in the seventies, and we were still being governed from
the center at that point, and now things are so
polarized and we've got two sides that have completely irreconcilable
(56:44):
versions of reality, and so there isn't an average voter
really like there isn't anyone in the middle. So I'm
not sure that I'm not sure that the political suicide
notion is something that translates exactly from the seventies. I mean,
he would have to take that seriously, he'd have to
(57:05):
look at what the poles say, but it would it
would play out in a weirdly different way. The same
with impeachment. Nixon didn't go until the Republicans turned on him.
The Democrats were in control of Congress. It looked like
they were going to drive the impeachment forward, but it
wasn't going to be successful until and unless the Republicans
(57:26):
turned against him. Well, that's the same situation now. You
don't get two thirds to vote to convict in the
Senate unless both parties agree. But you don't have anyone
in the middle anymore, and the Republicans have to pay
attention to the Republican primary voters. And with that polarization,
it's harder to paint a picture where something happens and
(57:51):
everyone agrees that it's bad, like it was in the seventies.
Speaker 1 (57:56):
And I, you know, I'm having a hard time emphasizing
how much I appreciate that point about polarization, because for
everyone listening, regardless where you find yourself falling in your
own personal, political or ideological stances, the fact of the
(58:17):
matter is that the public in general is increasingly polarized.
And although precedent does exist, Professor cult, I think you
make some fascinating, fantastic, and to some degrees disturbing points
about the differences between previous decades and the age in
(58:40):
which we live today. Before we conclude today's episode, Professor,
we have a question for you that we are certain
is on the minds of our fellow audience members here,
and that is this, where can where can listeners go
to learn more about your work and to learn more
(59:02):
about the concept of pardoning or self pardoning specifically, So.
Speaker 5 (59:09):
I would recommend if people are interested in my book.
That Chapter two of the book is the most comprehensive
treatment that I've produced on the self pardon question. For
twenty years, I was the only person talking about it.
Most of the discussion in the last year and a
half has drawn on the things that I've said, whether
(59:33):
they cited them or not. I think the book is
the best place to go. Just go to Amazon, type
in my last name, Kalt and constitutional cliffhangers, and it
should come right up. I think they've sold out of
the hardcovers, but the paperbacks are still available, and the
ebook version is still there. If they want to read
(59:55):
the original article in the Yell Law Journal nineteen ninety six, again,
google my name Calt and pardon me and SSRN. It'll
come up there and you can download the original article.
Speaker 3 (01:00:15):
Awesome, We'll get out there on Amazon. Find that book,
check it out. There's all by the way, Professor called
you are all over just the Washington Post and the Internet.
When people are talking about this subject, you get a
lot of calls, don't you.
Speaker 5 (01:00:29):
I do. It's a nice change from twenty years of
people thinking that it was ridiculous to even be talking
about this. Probably my highlight was in the preface of
the book, I talk about how I'm writing this book,
and I'm at this reception and I'm talking to this
prominent legal thinker and he asked me what I'm writing about,
and I tell him, and he looked at me and says,
(01:00:50):
why are you writing about that? And fast forward to
twenty eighteen and he has a piece in the Washington
Post about out whether the president can part himself.
Speaker 3 (01:01:01):
So, oh man, it's a little terrifying that you're you know,
you were on the right track.
Speaker 1 (01:01:09):
But it's a prescient as well. And we would like
to thank you again for being so generous with your
time with us today and for correcting or clarifying some
of the misconceptions regarding pardons in general that are so
common in the US, and I would say in larger
(01:01:31):
international context as well. So ladies and gentlemen, thank you
for tuning in. Please let us know further questions that
you may have while you're listening to today's episode regarding
the concept of self pardoning. You can find Matt Nole
and I on Instagram. You can find us on Facebook,
(01:01:52):
you can find us on Twitter, you can find us
on our fan page. Here's where it gets crazy.
Speaker 4 (01:01:57):
And boy does it ever get crazy.
Speaker 3 (01:01:59):
In that fan page, Professor called do you have a
Twitter that you'd like to plug here?
Speaker 5 (01:02:05):
Yes, I'm on Twitter. I'm at Profbrian Cault.
Speaker 3 (01:02:11):
There you go, prepare yourself for a lot of inquisitive minds.
Speaker 5 (01:02:16):
Well, you know Twitter brings out the best in people,
doesn't it.
Speaker 3 (01:02:19):
Yes, that's what I hear. And that's the end of
this classic episode. If you have any thoughts or questions
about this episode, you can get into contact with us
in a number of different ways. One of the best
is to give us a call. Our number is one
eight three three STDWYTK. If you don't want to do that,
you can send us a good old fashioned email.
Speaker 1 (01:02:41):
We are conspiracy at iHeartRadio dot com.
Speaker 3 (01:02:45):
Stuff they don't want you to know is a production
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Apple Podcasts, or wherever you listen to your favorite shows.
Welcome back to fellow conspiracy realist. Tonight's classic episode is
I think a great window into unprecedented times hashtag no pun.
Speaker 2 (00:11):
Left behind unprecedented presidential chaotic times. Yeah, can a president
pardon themselves? Is a question that you know, got a
lot more exploration when it became kind of a little
more of a possibility that it might happen. And then
this is really laying out the groundwork of the argument
(00:32):
you know, for and against this concept.
Speaker 3 (00:34):
And the answer is that, yeah, obviously a president can
parton themselves. Right, we don't even need this episode. Let's
get out of here.
Speaker 2 (00:40):
Yeah. Yeah, it's not as simple, quite as simple as that.
It's just some nuance to this convom.
Speaker 1 (00:46):
Yeah, we're speaking with Professor Brian C. Coult, who is
I would say, still the top legal mind on this
very specific question. And Professor profess us or called points
out several times things that just sound weird if you
weren't born in the US or live here where it's normalized,
(01:08):
Like talk to somebody from any other part of the
world and look at their reaction when you say, well, yeah,
kind of a US president can be a felon and
can run for office.
Speaker 3 (01:22):
They just can't be from Austria.
Speaker 1 (01:24):
They just can't be Arnold Schwarzenegger. Dang from UFOs to
psychic powers and government conspiracies. History is riddled with unexplained events.
You can turn back now or learn this stuff they
don't want you to know.
Speaker 3 (01:55):
Welcome back to the show. My name is Matt, my
name is Nola.
Speaker 1 (01:58):
They call me Ben. We are joined with our super
producer Paul, pardon me, decand and most importantly, you are here.
You are you, and that makes this stuff they don't
want you to know. This is a very special episode
for us today, friends and neighbors. In a way, it
is a follow up or I would see a spiritual
(02:19):
successor I love that to an earlier episode that we
did back in twenty seventeen, we explored the strange case
of Yellowstone's Zone of Death, a small area of land
in rural America where an odd loophole allows, what's the
best way to say, guys, allows in theory, someone to
commit a crime and avoid prosecut.
Speaker 4 (02:40):
Yeah, sort of like a purge zone where you could
just you know, all bets are off billy nilly crime
down USA. But as it turns out, with today's as
with today's question not quite so simple. So maybe listen
back to that episode if you haven't heard it in
a minute.
Speaker 1 (02:52):
Yes, and spoiler alert for all of you would be
super villains in the crowd today, it will not work
in practice. Do not attempt it. However, in this episode
we relied heavily on the work of Professor Brian c. Coult,
the man who discovered the loophole in the first place.
Speaker 3 (03:11):
And he actually wrote back to us and gave us
a few what would you call them, just some feedback
on some of the things we discussed. One of the
major ones is it's definitely cult as insult cult.
Speaker 1 (03:23):
Yes, and this when we received this email, we were
delighted because in the course of our research for the
Yellowstone episode, we learned more about the professor's work, not
just concerning the zone of death. We learned that for years,
Professor Cult has investigated a question increasingly important and relevant
(03:46):
in the realm of American politics. It is this, can
a president pardon him or herself? And that's what we're
looking at today. But today, you see, we are lucky
enough to go directly to the prime source. Friends and neighbors,
We would like to introduce you to Professor Brian Cault.
Thank you so much for joining us on the show today.
Speaker 5 (04:07):
Professor, Oh, thanks guys, glad to be here.
Speaker 3 (04:10):
First off, can you tell us, just in your own words,
what you do every day, What are you studying, what
are you teaching.
Speaker 5 (04:16):
Well, I'm a law professor at Michigan State University and
I teach towrts and administrative law, but my research has
pretty much always focused on constitutional law and more recently
the constitutional law of the presidency, things like pardons, impeachment,
twenty fifth Amendment, that sort of stuff.
Speaker 1 (04:36):
Fantastic, So first things first, Professor, I think what would
benefit everyone in our audience right now would be to know,
in approachable terms, what is a presidential pardon. We hear
the term thrown around a lot, and it seems like
occasionally there are also misconceptions about this.
Speaker 5 (04:57):
Yeah, so there definitely are. Presidential pardon is actually a
range of possible things, but at its fullest extent of
pardon forgives an offender for the crime that they committed.
That's the most common way it's practice. It's usually someone
(05:19):
who's already served their sentence, but the pardon sort of
removes the conviction from his record removes any sort of
consequences that remain, so if he's still suffering from some
civil rights deprivations, like he can't own a gun or
can't get certain licenses, those go away along with the conviction.
(05:40):
The president can also pardon people before they've been convicted,
or even before they've been charged with anything. And if
he does that, then by getting rid of any sort
of criminal consequences for the person's actions, that can prevent
them from going to prison. And if the person is
in prison in the middle the sentence, the pardon would
(06:01):
free them. The pardon can also be something less than that.
It includes the power to commute a sentence, so you're
not overturning the conviction, but you are shortening the sentence,
maybe letting them go earlier or immediately. There's also the
power to remit fines. If you had to pay a fine,
(06:21):
they can the president can make them pay you back.
Important limits on this, though, are that the president only
has this power with regard to federal offenses, and it
has to be something you've already done, so the president
can't pardon you in advance and give you sort of
a free path to commit crimes. That then won't be crimes. Finally,
(06:44):
there is an exception for impeachment because the Constitution makes
the impeachment process separate from the criminal justice process. So
if someone's being impeached, the president can't do that. You
can't use the pardon to interfere with or overturn the
result of an impeachment.
Speaker 3 (07:00):
Can you clear up for us just a little bit,
what exactly is the state of being impeached and how
does that relate to being fired from a job or
having a vote of no confidence?
Speaker 5 (07:15):
Sure, So the impeachment process is People talk about impeachment
to refer to the whole process, but impeachment is just
the first part. So the House of Representatives, by a
simple majority vote, can impeach any executive or judicial officer
of the federal government, and that's kind of like indicting someone. Basically,
(07:36):
the impeachment is an accusation, and so if the majority
of the House votes to impeach, then you are impeached.
But that just means you're on trial in the Senate,
and the Senate is the decision maker. You're on trial
in the Senate. The vice president presides over the Senate.
But if the president is impeached and on trial, then
(07:57):
the Chief Justice of the United States presides, and if
a two thirds majority of the Senate boats a convict,
then you're convicted. You're removed from office at that point,
unless you are no longer in office. That's a whole
other that's a whole other chapter of my last book.
Can you impeach people after they've left office? But impeachment again,
(08:21):
just refers to the accusation. It's like the indictment.
Speaker 1 (08:25):
Oh, I see, so not immediately in and of itself
a proven thing, just an accusation exactly.
Speaker 4 (08:35):
It was like Clinton, for example, you know, did not
get removed from office, but was impeached. Correct Or is
am I misremembering that?
Speaker 1 (08:42):
Censured?
Speaker 5 (08:43):
I believe, yes, yeah, Clinton, Clinton was impeached, Andrew Johnson
was impeached. Neither of them were convicted. So it's a
it's a blight on the record. I don't know anyone
who would invite an indictment and say it's no big deal.
But without being convicted, he wasn't found responsible for whatever
(09:05):
it is he did.
Speaker 4 (09:05):
Have we seen a successful full realization of the impeachment
process from a president. I can't think of.
Speaker 5 (09:11):
One, not of a president. The only people convicted under
the federal system have been judges.
Speaker 1 (09:19):
And going back to this concept of pardons, we're interested
in learning a little bit about your personal story. I
believe you were some of your first published work on
this concept occurred in nineteen ninety six during your time
with the Yale Law Journal, or you wrote for the
(09:40):
Yale Law Journal in this regard, when did you first
begin investigating this question and what originally inspired you to
do so.
Speaker 5 (09:48):
So I was a law student at Yale and I
was taking a criminal procedure class. And people make fun
of Yale sometimes Yale Law School for being overly theoretical,
and sometimes that's that's a fair, uh fair accusation. But so,
for instance, in our criminal procedure class, we were talking
about presidential pardons, which is not really an important part
(10:12):
of criminal procedure in the ordinary course of things. But
the professor had some theories and we were talking about
the whole structure of the constitution. And you know, okay, great,
how that's how it works in practice, but how is
it in theory. That's what we really want to know.
So we're talking about pardons, and I raised my hand
and I said, can the president pardon himself, and Professor
thought about it for a second, said I don't know.
(10:34):
Why don't you look into that? So that weekend I
went to the library and I read a bunch of stuff.
And I came back on Monday and I said, well,
I did some research and can't say for sure, but
I think the better argument is that he can't. And
he said, well that sounds interesting. Why why don't you
(10:55):
write something up. I'll you know, I'll call it an
independent study. You get a couple of credits for it,
maybe you could get it published somewhere. So I spent
the next weekend doing a rough draft of that, submitted
it to the Yale Law Journal, got rejected. Asked the
professor olsh I sent it around to other places. He said, well,
you know law reviews. The way that works when he
(11:17):
publish is as a student, it's kind of hard to
get published. Send it out to a hundred places. You'll
probably get a hundred rejections, but who knows, maybe you'll
be lucky, you'll get ninety nine rejections. And before I
did that, I resubmitted it to the Yale Law Journal
and they decided to take it. On the second try.
(11:40):
One of the main concerns about publishing it was it
just it seemed like a ridiculous thing to even think about, right, like,
why would a president, how could that ever happen. This
was in the Clinton administration, It was before Whitewater really
got heated up. It was before people started asking about
the self pardon in the Clinton contexts. So my first
(12:04):
task was just sort of making it seem relevant. So
I talked about Nixon, and Nixon had asked his lawyer
about it, and his lawyer said that Nixon could if
he wanted, pardon himself, and some of the others in
the administration said he couldn't. So it was talked about then.
Some people speculated about it a little bit at the
end of the George H. W. Bush presidency, which back
(12:26):
then was not that far in the past, when he
pardoned all of the Iran contract defendants after he had
lost the election, and some people thought maybe he'll pardon himself.
But it was you know, they made fun of it,
they said, this is kind of kind of out there.
And what I think is most important about this, and
(12:50):
I continue to say this is the fact that it
seemed unlikely, the fact that it seemed out there is
exactly why it needed to be written about then, because
now you see this fast forward to twenty eighteen, President
Trump says he can pardon himself. Now everyone's talking about it,
(13:10):
and no one can make the arguments that they have
about self pardons without thinking about Trump. And if you
don't like Trump, you don't want him to be able
to pardon himself. And if you do like Trump, you
do want him to be able to pardon himself. And
the Constitution doesn't care if you like Trump or not.
Either presidents can pardon themselves or they can't. So really,
(13:31):
the only time you can get the real analysis, get
the real answer to the question is when it's purely hypothetical,
and at that time it was, and so I wrote
at the time what I thought was the best argument
against self pardons being constitutional. It was sort of a
curiosity out there for many years, and then a few
(13:55):
years ago, in twenty twelve, I wrote a book that
looked at a bunch of these sorts of questions. Can
the president be impeached while he's after he's president? Can
you prosecute a sitting president? Can the president pardon himself?
What about Section four of the twenty fifth Amendment for
disabled presidents. There's a loophole and term limits where where
(14:16):
Obama or George W. Bush could come back into office
looking at sort of crazy things like that, but again
with the idea of looking at it when it's not happening,
so that we can figure out what the right answer
is and not what the politically preferable one for us is.
And the book came out in twenty twelve, and the
(14:40):
argument about self pardons, I added some arguments against them.
I also looked at the other side, so the book
gives both sides of the argument on it. But again
in twenty twelve, it's still all seemed hypothetical. So I'm
glad that I said what I had to say before
I knew whether whether I wanted the p to partner
(15:00):
himself or not.
Speaker 1 (15:02):
Absolutely, And that book is constitutional cliffhangers, a legal guide
for presidents and their enemies.
Speaker 4 (15:07):
So it's interesting you spent so much time laying the
groundwork and answer asking these questions in a hypothetical bubble
kind of and now we're seeing maybe the first example
of a president where these questions are pretty relevant because
of potential dealings before he was president. With his very
complex business network and things like that that maybe haven't
(15:29):
quite been in play in the way that we're seeing now,
do you see it that way?
Speaker 5 (15:34):
Yeah? And so the book tries to sketch out these
sort of hypothetical scenarios just to illustrate, just to make
it make it more lifelike, give some color to it.
And a lot of the things that I try to
put in there, I was thinking about, like if this happened,
what would have to what would have to happen before
(15:55):
a president would partner himself. But it have to be
a really weird situation. So that's part of the question
is when would it happen, what would it look like?
And I can't see the future, but I think that
the book holds up pretty well. In the chapter on
can you prosecute a sitting President? It sort of, I
don't know. It resonates a little bit with what's been
(16:18):
going on this last year and a half. The self
pardon chapter, similar things, the one on twenty fifth Amendment,
which people are talking about you. When I wrote this book,
I had to try to convince people one of these
things might happen someday. It would be good if we
thought about them now, and then within six months of
Trump coming in, we had three of the six chapters
(16:40):
in the news for if you count the people saying
that they should impeach Hillary Clinton, and so, yeah, I
didn't think any of this would be relevant anytime soon.
I didn't know we would elect a president who tried
to hit for the cycle based on my book.
Speaker 1 (16:57):
And one thing that is fascinating about various conversations we've
seen regarding the concept of self pardoning is, well, I'd
like to go back to the earlier example you alluded
to with Nixon briefly in some work. It was surprising
(17:18):
to me and I think to many of us to
learn that Nixon had reportedly asked his own legal team
about this concept way back during his time in office.
Is that correct.
Speaker 5 (17:32):
Yeah, I'm not sure if he asked the lawyers or
if he just said to the lawyers, what are my
options and they came up with that, But a pardon
was definitely something that was important, and so the question was,
if he's going to get a pardon, does he have
to wait and get it from Ford if he resigns,
or can he give it to himself, or you know,
(17:54):
maybe they wouldn't have even prosecuted him. We're not sure.
So it was even then, I know it was very real.
At the time, it was still hypothetical. And the lawyer said,
if you pardoned yourself. The option was presented as you
pardon yourself and then you resign, because just politically, there's
no way that you could do that and avoid impeachment.
(18:18):
Impeachment was already the process was already rolling. That would
have just accelerated it, and that would have been the end.
And he knew it. He knew it would have been
the end.
Speaker 3 (18:27):
Can we jump back to Article two, Section two of
the Constitution just to really go over and lay the
groundwork of exactly what the Constitution says. A pardon is sure.
Speaker 5 (18:39):
So I can pull up my little copy of the
Constitution here, awesome Article two. Article two talks about the presidency,
and here we go. Article two, Section two, Clause one,
the president dot dot dot shall have power to grant
reprieves and pardons for a against the United States, except
(19:02):
in cases of impeachment. And that's it. That's all it says.
Speaker 3 (19:06):
So everything else is just us kind of deciding.
Speaker 4 (19:10):
Pretty open and with that language, that pretty vague language,
you get what I've seen described as one of the
most king like powers of the presidency. That's how it appears,
and I think that's pretty accurate. I can't remember where
I saw that, but it just seems like a wave
of the hand and all your sins are wiped away.
Speaker 5 (19:27):
Yes, and it is one of the most king like
and I think just sort of thinking about Trump and
the pardon power, it's it's easy to see why it's
very appealing to him because it's the most king like,
or you could say, the most CEO like. He just
sort of signs this paper and he doesn't have to
(19:47):
go through Congress. He doesn't really have any potential for
a court reviewing it because under the so called political
question doctrine, the courts will not look he had a
pardon and decide if it was warranted or not. So
it's unreviewable in court. And he just says it and
(20:08):
it happens. He doesn't even need a lot of people
to sort of follow along. It's not like something he
has to build support for. If he says, let this
guy out of prison, they let that guy out of prison.
So it's the closest thing, like you said, to what
a king could do, and it is it is very tempting.
(20:32):
I can imagine for presidents to look at that and
think about how they might use it.
Speaker 1 (20:38):
And we know that traditionally presidents have not immediately entered
office and began exercising this ability to pardon people. But correctly,
if I'm wrong here, did the current president, Donald Trump,
as we record this, did he begin pardoning people earlier
(21:00):
than in his time in office than other presidents?
Speaker 5 (21:05):
Well, in recent history there's been sort of a shift.
Presidents have pardoned less recently than they did in the past,
and they sort of waited till the end to do
many of them. But it wasn't the earliest in a
presidential term that a president had done it. It was unusual,
(21:28):
but it wasn't unheard of. And in a way that's
actually a good thing because the design of the part
and power. We talk about it being a king like power,
but remember the president's not a king. And the whole
reason to give the president this power instead of giving
it to say, Congress, by a congressional vote, you give
it to the president because the president is politically accountable.
(21:50):
He's always politically accountable, even though he doesn't run for
reelection for two more years, even if he's in his
second term and not going to be running for reelection.
He's politically accountable to the whole country all at once.
He's got political capital to spend, and that's where the
framers of the Constitution wanted the power to reside. So
(22:12):
if presidents do what President Obama did by waiting until
after the election to commute all of those sentences and
the disproportionate sentences for drug offenses, he'd been talking about it,
but he didn't do it until after the election, Or
(22:34):
President Clinton on his last day in office, pardoning Mark Rich,
pardoning Susan McDougall, pardoning Roger Clinton, his own brother, waiting
until after the election when he's not at all politically accountable.
Or President George H. W. Bush partnering the Iran counter
defendants again after the election. The president is supposed to
(22:56):
be politically accountable. It's sort of this little loop that
he still has the power even when he's not. But
that's not how it's supposed to work. So when president's
pardon early, that's good because then that means that Congress
can respond and the voters can respond in the term elections,
or in the presidential election.
Speaker 4 (23:17):
All right, we're going to be right back with more
from Professor Called.
Speaker 6 (23:19):
After a quick sponsor break, and we're back Professor Called.
Speaker 3 (23:30):
Please correct me if I'm wrong, but I'm just going
to make a statement here that is what I believe
to be true. My understanding is that much of law
is based upon the previous findings and judgments that have occurred,
Like the guiding principles of what is now law is
from the past.
Speaker 5 (23:50):
Right, Yes, to the extent that we have precedent, we
take those presidents seriously or are bound by them, depending
on what kind of precedent it is.
Speaker 3 (23:59):
Is there any foundational case or president that has to
do with this at all? A president pardoning himself.
Speaker 5 (24:07):
Well, we don't have any case law directly on point
on presidents pardoning themselves. The argument against self pardons relies
on a whole bunch of theories and doctrines that haven't
really been tested either. It really is fair to say
(24:27):
that if a president did this, it would be completely unprecedented.
Now I'll let me back up a little bit. There
are cases in the past of other people with pardon
powers purporting to pardon themselves. Mayors and governors, and those
cases are sort of obscure. They hadn't really been tested
(24:51):
in court, and so we don't have any precedent from
those either. But even if we did. The US Constitution
presidential pardon power is different, is distinct from any state
or local pardon power.
Speaker 3 (25:06):
What was doctor Bonham's.
Speaker 5 (25:08):
Case, So this was a British case back in the
seventeenth century, and the issue in that case is I
would say, the power of Parliament over the King and
(25:28):
the power of the common law over the parliament. So
I don't know, it's sort of a fundamental case for
judicial review. People think about it as looking at the
ability of courts to strike down statutes or not. I
(25:50):
haven't thought about it much in terms of the pardon power.
But basically the principle of Bonds case. What you'll see
it's cited for is people will say, if there's a
statute that Parliament passes, because this is an English case
and it's contrary to what have you natural law or
(26:12):
common right and reason was how they put in that case,
then then the judges have to they have to declare
it void. And so again this sort of spawned the
concept of judicial review. A court looking at something that
Congress has done or that a president has done. If
it's illegal, then the court has to say so. They
(26:36):
have to say what the law is. And if the
law is that this statute is unconstitutional, then they're supposed
to say so. The actual case was about, you know,
sort of a weird medical licensing issue back in seventeenth
century England. So I'm not I'm not real up to
date on what exactly was going on, doctor Bonham, and.
Speaker 3 (27:01):
The Washington Post just cited it as a foundational case
for possibly this subject.
Speaker 1 (27:07):
And as we're speaking about some popular sources of media
and news here in the US, Professor, earlier in May
of twenty seventeen, you wrote a piece for the Wall
Street Journal about the twenty fifth Amendment and specifically section four.
I believe we mentioned it briefly at the beginning of
(27:31):
our conversation today, but I was wondering if you could
tell us and the audience what the significance of Section
four of the twenty fifth Amendment is in this conversation.
Speaker 5 (27:46):
Well, Section four of the twenty fifth Amendment is where
the sections three and four deal with presidential disability. If
the president is unable to discharge the powers and duties
of his office. Then Section three allows him to say
so and hand over power to the vice president, and
then when he's better, he says, okay, I'm better now
and he takes power back. Section four is thru when
(28:09):
the president can't declare that he's disabled or won't, and
it allows the vice president and a majority of the
cabinet to declare that the president is unable to discharge
the powers and duties of his office. Then the vice
president becomes acting president. It doesn't remove the president from office,
(28:29):
and the president is still in office. He just is
temporarily stripped of his powers and he can say I'm
not disabled either right then if there's a disagreement there
or if he's unconscious, once he regains consciousness, he can
say I'm fine. If the vice president and cabinet disagree,
then it goes to Congress and Congress has to decide.
(28:49):
But the deck is stacked very heavily in favor of
the president. There needs to be two thirds in the
House and two thirds in the Senate agreeing that he's
unable to his job before before he loses. So it's
it's really it's never been used. Section three has been used.
(29:09):
President's going in for Kolonoskoy, he's going to be unconscious
for a couple of hours. He hands over power to
the vice president. That's happened three times, but Section four
has never been used. And you know, a lot of
people look at it and think, oh, well, if the
president is nuts, then the vice president and cabinet should
say so, and then then that'll remove him from office.
(29:31):
But it won't. If he's loocid enough to contest the action,
it would probably result in him getting his powers back
within a few days, and now he'd be mad. So
it's not I'm not sure how it relates to self pardons,
other than the possibility that if they thought he was
(29:51):
about to try to pardon himself, maybe they could invoke
Section four. I went, I went and found the Washington
Post piece you're talking about. I had read it before
Lawrence Tribe normalize and it's one of these things and
I and I should say this in general, a lot
(30:12):
of the discussion about presidential self pardons gets these headlines,
and it's not always the authors that let's say this.
Sometimes it's just the headline oversimplifying. But the headline says, no,
Trump can't pardon himself. The Constitution tells us so, and
you can find things that are equally certain of people
(30:33):
saying yes, Trump can pardon himself. The Constitution tells us so,
and they're both wrong. The Constitution doesn't tell us one
way or the other. We've got it. It's Schrodinger's cat, right.
We won't know until there's an actual case and when
and if it happens a chortal rule on it, then
we'll know. All we can say at this point is
(30:55):
we don't know. The president can try. It might work,
it might not, and we can say, hey, here's what
I would say if I were a judge, and I
would agree with Tribe painter in Eisen in this Washington
Post piece saying, I think the best reading of the
Constitution is that the president can't pardon himself. But there
(31:18):
are good arguments on both sides. And I found where
they talked about Bonham versus College of Physicians. That was
their source for the notion that you can't be the
judge in your own case. I'm actually kind of proud
that it didn't occur to me to link Bonham's case
(31:41):
with self pardons, because I think that's a very roundabout
and obscure way to get to that point. One of
the main arguments that the president can't parton himself is
that you can't be the judge in your own case.
And remember I said that it was about some obscure
medical licensing issue. It turns out that's the part of
(32:01):
the case that they were drawing on, which is why
I didn't even occur to it. It didn't even occur
to me.
Speaker 4 (32:07):
Isn't there also the notion that a pardon is inherently
the nature of it is that it's for someone else.
Speaker 5 (32:12):
Yeah, So that was the main argument that I added
In twenty twelve. A friend of mine in law school,
when I was writing this original article was only thirty
pages long. I couldn't put in everything I wanted. He said,
you should argue a textual argument that the pardon is
something that's inherently bilateral. It's something you have to give
(32:32):
someone else, not something you give to yourself. And I said, now,
I don't know. I don't think so. I don't want
to make room for that. Then sixteen years later, when
I'm writing it, it occurs to me, I think about
it more that that's not actually worth including, that's not
just worth including that's actually the best argument there is.
All of this other stuff is sort of well, like
(32:55):
you can't be a judge in your own case. Of
courts will say you can't be the judge in your
own case when they're ruling against you being the judge
in your own case. But there are other instances where
they allow all kinds of self dealing, and they conveniently
forget to mention that. But if you can find something
in the text of the Constitution itself, that's the best
kind of argument for me. That's persuasive to me. So
(33:17):
with that argument, the idea is the argument that the
president can pardon himself is it doesn't say he can't.
It says he shall have power to grant pardons, and
it says there's an exception for impeachment. It doesn't have
any other exceptions. They say, well, if they wanted to
make an exception, then they would have said, and they didn't,
so he can. He can do it. But there are
(33:37):
limits inherent in what the definition of a pardon or
granting a pardon is in itself. So, for instance, I
mentioned before, you can't pardon someone for something he hasn't
done yet. You can only pardon past acts doesn't say
that anywhere in the Constitution. Where do they get that from. Well,
(33:58):
the courts are very clear that you can only pardon
things that have already happened. But it's inherent in the
notion of what a pardon is. So this argument is
the same thing that a pardon is just by definition,
something you give to someone else. And you can look
at other words that have the same Latin root paradonai,
(34:18):
like donate or condone. Like you wouldn't say I condone
my own actions. That doesn't make sense. You wouldn't say
I'm making a donation to myself. That doesn't make sense.
Speaker 4 (34:29):
If you said pardon me, you're asking for others to
excuse something that you have done. In like a social situation.
If I say pardon me, Matt, or I have beltched
or something, Matt would say of course, yeah, good sir.
Speaker 3 (34:40):
You know, and stop a builching in my direction.
Speaker 5 (34:44):
Yes, that probably also has roots in Mary Old England too.
But I think in addition to the argument that a
pardon is inherently something you give to someone else, and
the notion that the courts prove of people being the
judge in their own case, there's also a historical argument
(35:06):
based on how the people debating the constitution the Constitutional
Convention talked about pardon powers. They were worried about giving
the pardon power to the president, and Edmund Randolph, one
of the delegates, proposed This is all recorded in James
Madison's notes. Edmund Randolph said, well, we need to make
(35:27):
an exception. We need to not allow presidents to pardon
people for treason. And the reason he said was the
president may himself be guilty. He said, the traders may
be his own instruments, and so we can't let the
president have the power to pardon these other traders that
he's a trader along with. And James Wilson, another delegate
(35:50):
later on the Supreme Court responded, he said, if the
president be himself a party to the guilt, he can
be impeached and prosecuted. And everyone said, oh, yeah, that's right,
And they voted and rejected Randolph's motion, and they didn't
restrict the pardon power for cases of treason, and they
didn't talk about self pardons. But what this tells us is,
(36:12):
first of all, if any of those people thought that
the president could pardon himself, the notion that, well, if
the president's guilty, we can just prosecute him. That wouldn't
have been persuasive at all, and no one said that,
so they must not have thought that the president can
pardon himself. Additionally, if anyone thought the president could pardon himself,
(36:33):
then they would have talked about restricting that, not saying
he couldn't pardon traders, but that he couldn't pardon himself.
But they didn't. They did they say the president can
pardon himself. No, but I think that that little piece
of evidence shows that they thought that. It literally went
without saying that a self pardon is not possible. I
(36:53):
think that there is an argument on the other side
of this, which is that the president is both the
sovereign and a person, and so he can pardon himself
because it's it would be Trump, the president giving a
pardon to Trump the person, and so it's inherently bilateral
that way. So you know, it's it's not a killer argument.
(37:16):
Like I said, there are good arguments on both sides,
but to me, it's a it's a pretty persuasive one.
I think it's the best argument against self pardons because again,
it's in the constitution it's inherent in the definition of
the word parton itself.
Speaker 1 (37:29):
Absolutely, But where does this lead us? Will be back
after a word from our sponsor. Going off our hypothetical
pardon me example, let's go into the realm of speculation
(37:49):
just a bit. Let's imagine that the current president, or
just any president does some how successfully attempt this move,
they successfully pardon themselves. What would happen afterward? What sort
(38:14):
of impact would this have on the US government, on
the hearts and minds of the public. What kind of
consequences or implications could we possibly expect if something like
this were ever to occur.
Speaker 5 (38:32):
Yeah, I think that ultimately that's the most important question, because,
just like impeachment, the pardon power exists in a political context.
If the president thinks it's a good idea to pardon someone,
then he does it, and that's why he has the power.
And so thinking about how it would look in my
(38:54):
own writing, I set up this hypothetical example of a
president and who has been accused of all these crimes,
and there's some questions whether you can prosecute him while
they're in office. So he's running for he's in a
second term, so there's there's an election going on and
it's very divisive, and the other party is saying the
(39:18):
president's a crook, and if I get elected, the Kennedy,
the other party says, if I get elected, I'm going
to appoint this guy as prosecutor and we're going to
go after the president, kind of like what Trump was
saying he would do about Hillary Clinton, although he didn't
end up doing it, and that person wins the election.
(39:40):
And the President has been saying all along, I didn't
do anything wrong, and my people in my administration haven't
done anything wrong. And so he waits until again he's
not politically accountable anymore, and he says, well, I'll just
read here. He says, for ten months, these scurreless accusations
(40:01):
have paralyzed the country. We've been unable to work on
the real problems Americans face. That problem was about to
get worse. Enough is enough with this pardon. I'm ending
this expensive distraction. Right. He has the power to do this,
and he's going to use it. So that's how the President,
i think most likely, would frame it. That he's not
(40:23):
forgiving himself for doing something wrong, he is preventing these
runaway prosecutors from doing an injustice to him. That's how
he would spin it, and a certain percentage of the
country would probably go along with that. So politically, the
question would be how many people would buy that line
(40:46):
of rhetoric. I think it would be a scandalous enough
act to enough people that the president would wait until
he was on his way out of office to do it,
especially if he couldn't be secuted while in office. That's
an open question too. But if you can't prosecute the
president while he's in office, and you can, if you're
(41:07):
the president, pardon someone who hasn't been charged with anything yet,
then that sets up this potential. So on his way
out of office he pardons himself. If he's on his
way out of office, then the political fallout as much less. So,
to answer your question, if the president's not on his
(41:28):
way out of office, if they're pursuing him and he
says I'm I'm just gonna pardon myself, I think the
political follow would be tremendous. I think the prosecutor who
was pursuing him would not just say, oh, I guess
I can't prosecute you. Then he would challenge it in
court because it's not clear that the president can pardon himself.
It would be swiftly appealed up to the Supreme Court,
(41:51):
I think, but it would. It would It would be
a divisive issue, and the people who agree with the
president that he didn't do anything wrong would think it's great,
and the people who disagree with the president and think
that he's a crook would think that it's terrible. And
I think there'd be a lot of people in the
middle who would say, I don't know what happened, if
he's a crook or not. But I don't think that
(42:12):
pardoning yourself is okay. I think, you know, you need
to not put yourself above the law. You need to
let other people make that decision. And that takes us
back to Nixon. I mean, talk about what would have
happened if Nixon had pardoned himself. We can only speculate,
but we do know what happened after Nixon resigned and
shortly thereafter Gerald Ford, who came into office untouched by
(42:35):
the whole Watergate scandal. He had very high approval ratings
and he decides he's going to pardon Nixon and immediately
very controversial decision. His approval ratings drop most of the
data that I've seen suggest it cost him the election
in nineteen seventy six. Two years later, he's running for reelection.
He are not reelection, but to stay in office for
(43:00):
more years, and he narrowly loses. He it was a
close election, and if you look at the data what
people thought about that part and that pardon cost him
the election. So you can only imagine how much worse
it would be if Nixon had done it himself. Ford said,
we've got to move on. This is the right thing
to do. If Nixon had said that, it wouldn't have
(43:22):
been convincing at all. So politically, if the president's still
in office, it would be a it would be throwing
a bomb. If he's on his way out of office,
it would be controversial, but he wouldn't be president anymore,
so it wouldn't It would be tabloid fodder, right, it
(43:42):
would be cable news fodder, but it wouldn't. It wouldn't
have the same sort of political impact. I think everyone
would just wait and see what the courts had to
say about it.
Speaker 1 (43:51):
But then on the flip side of the speculative world,
we're exploring here, what if a standing president or president
on the way out attempts to self pardon, and that
attempt fails, wouldn't they still encounter the same enormous potential
(44:13):
for backlash because I imagine a lot of people who
were going back to what you said about the supporters
thinking it's a good idea, the opponent's thinking it's a
bad idea. Wouldn't a lot of people in the anti
administration side see that as a smoking gun, more or
(44:34):
less indicating some sort of truth to all the problems
they had with that administration.
Speaker 5 (44:40):
Well, I think they could. They could look at that
and say, see, see what kind of person this is.
But I think that supporters would say what they've been
saying all along, if they if they have supported them
this long in saying that the accusations against him are fause,
they would probably go along for the ride there too.
And and that's an important thing about pardons that I
(45:03):
think has overlooked a lot. I had a piece. I
don't know if anyone saw it, but I I but
I liked it. It was in the New York Daily
News a few weeks ago, where you hear people say
this a lot, that a pardon is a declaration of guilt,
and that accepting a pardon is an admission of guilt,
(45:24):
and so you, yeah, you might. You might have people saying, uh, see,
he pardoned himself. That means he's admitting he was guilty.
But that's that's actually not right. That notion that a
pardon is an admission of guilt, accepting a pardon is
an admission of guilt is taking this one line from
this one Supreme Court case out of context and reading
(45:49):
it into a completely different one and and really missing
the point. Presidents almost always use pardons to forgive guilty
people who may don't deserve the punishment that they got,
but they can also Presidents can also use the pardon
power to exonerate people, and it's not the most usual
(46:11):
use of it, but sometimes they do. President Ford pardon
Nixon for giving someone who is guilty. He also pardoned
Tokyo Rose. She had been convicted of making propaganda broadcasts
during World War Two, and she was an American citizen
living in Japan, and they said, oh, she was broadcasting
(46:33):
these terrible things. Turns out sixty minutes does his story.
It turns out the case against her was based on
perjury and it was totally trumped up. Charges against her
and she was completely innocent, and sixty minutes had this
big story about it, and President Porziella, this is terrible.
Let's do what we can to pardon her, and he
(46:55):
did not because she was guilty. It wasn't a declaration
of guilt because she wasn't guilty. And when she accepted
the pardon, she wasn't admitting she was guilty. She was
accepting it because she wasn't. And Trump himself just pardoned
Jack Johnson posthumously, the boxer again, not because he was
guilty but should be forgiven, but because he wasn't guilty.
(47:18):
The case against him was bogus. So this notion that
he won't do it because it would require him to
admit guilt, I think is wrong, and people are missing
the potential for a president to put it in the
language that I had it in my book, where he says,
I'm not guilty, I'm innocent, and these people are coming
(47:38):
after me anyway even though I'm innocent. But I have
the power to stop that, so I'm going to use
that power. That's what he would say, and so any
political reaction would have to reflect that context. If the
president was saying I'm guilty, but Hey, it's good to
be the king and pardon himself. That would be much
(47:59):
more controversal, much more unacceptable, but I think also, as
a result, much less likely to happen.
Speaker 3 (48:05):
So let's talk kind of an out there hypothetical strategy, Noel,
that you were talking about earlier. Would it be possible
for a sitting president to use one of the clauses
to step down as president temporarily accept a pardon from
the person who is then president in that momentary timeline,
(48:29):
and then step back in.
Speaker 5 (48:31):
Yes, so, I guess that's what you were referring to
Section four and twenty fifth Amendment about Yes, the president
could do that. Now, it's important to make a distinction
about whether such a pardon would be valid and whether
such a pardon would be able to be done with impunity,
(48:53):
because if the president did that, and then presumably you know,
once he's back, he pardons the vice president quid pro quo,
those pardons would be valid. Right when you're the president
or when you're the acting president, you pardon someone that
that pardon sticks, But you also can be impeached for that,
(49:15):
and you can be prosecuted for it too, if it's
part of a criminal enterprise. So if if I give
the president a million dollars in exchange for pardon and
he pardons me, that pardon is valid, but we're both
going to go to prison for the bribe. And because
you can only pardon something that's already been done. If
(49:35):
the pardon is this criminal, you can't pardon yourself for
pardoning yourself, right the last one. They'll always get you
for the last one. So yeah, the president could could
hand over power to the vice president, the vice president
pardons him, hands power back, he returns the favor, or
he could resign. That's that's basically what Nixon and Ford did.
(49:56):
Nixon resign, Ford pardon Nixon for didn't need a pardon,
So there is no sort of quid pro quo there.
If it's part of a corrupt conspiracy, then it would
be punished as part of a corrupt conspiracy, even though
the pardons themselves would probably stick. I don't think there's
any question about that. There are some people who would
(50:18):
say that a court would refuse to honor such a pardon,
but I based on the case, I don't see that happening.
I think it's also worth mentioning how this would play
out if you have a pardon, it doesn't actually mean
anything unless someone tries to do something to you that
the pardon says they can't. So if you have a
pardon and they say, well, I'm going to prosecute you say,
(50:39):
well you can't because I have a pardon. Then they
try to prosecute you anyway, then the court has to
decide whether the pardon is valid or not. If no
one tries to pardon the president, he pardons himself, or
the vice president pardens him and no one tries to
prosecute him, then we don't know if it's valid or
not because it doesn't matter. It's only when he tries
to do something that would only be he'd only be
(51:02):
able to do if the pardon were valid, that we
would find out. There's there's you know, a lot of
a lot of things would have to happen before a
president would get prosecuted. It's not just the self pardon
being a remote hypothetical, it's it's also the prosecution itself
that was remote. So, you know, I love talking about
(51:24):
these hypotheticals, but it's it's also hard to imagine the
vice president wanting to get his hands dirty in that way.
I'm not saying that it would never happen. I'm just
saying that the more things you add in that make
it unlikely, the more hypothetical it is, the less instructive
(51:46):
it is. It's hard to draw lessons from it.
Speaker 4 (51:49):
Ford Nixon. To me, that's like a backroom conversation where
Nixon is like, no, that's how I see it. Why
did Ford parton Nixon knowing there would be political fallout.
It seems like it was something he was like doing
a favor for for Nixon.
Speaker 5 (52:03):
Yeah, there are there are a lot of people who
think that Nixon made a deal with Ford. I'll resign
and then you pardon me. And I think Ford was
inclined to pardon Nixon because that's just the kind of
guy that Ford was. He he didn't he didn't think
that we needed to continue beating up on Nixon. He
(52:23):
thought that losing the office was punishment enough, all that
sort of stuff. And I don't I don't think that
Nixon really had any leverage over Ford. Like if he says, well,
I'll resign, but only if you promised to pardon me. Ford,
if he was if he was answering honestly, he said, well,
I was going to pardon you anyway? Why are you
(52:43):
saying that? Or or he could say why I which
which he actually did say. This is all in in
his autobiography, and it's been reported and al Haig's book. Well,
Haigu came to Ford before Nixon resigned. Haigu was Nixon's
(53:04):
chief of staff and said will you will you commit
to pardoning Nixon? And Ford didn't say yes, and he
didn't say no. And when he told his people later,
they said, well, you need to be more clear. You're
not committing to anything. So he called up hag He said,
I'm not committing to anything. But Nixon didn't have any leverage.
(53:26):
He was going to get impeached and removed. He was
going to have to resign anyway, pardon or no pardon.
Did he really want to pardon? Sure? Was Ford going
to pardon him anyway? Sure? But was there a deal?
I don't think so.
Speaker 4 (53:39):
I think what I was getting at was that it
was more of a courtesy. And I'm wondering why the
conversation now isn't like, well, of course, Pence will pardon Trump.
Why are we talking about Trump pardoning himself when the
president has kind of been that has a courtesy, your
VP will pardon you anyway.
Speaker 5 (53:56):
Well, I think maybe Pence will look at what happened
to Ford when Ford pardon Nixon, and say, if I
want to get elected in twenty twenty or whatever the
next election is, if this happened, I would have to
think seriously about whether to do this or not. And
if whatever it is that he's partnering Trump for is
something that involves himself as well, then that would be
(54:22):
politically difficult for him to do. Ford had the political
space because he hadn't been mixed up in Watergate. He
had the space to do that and not have it
look like an inside deal. In the same way, when
Bush pardoned the Iran contract defendants, that was controversial for
(54:43):
that reason because Bush was one of them. It looked
like he was helping them out of a mess that
he was in. Two So, yeah, a lot would turn
on that is Pence involved in whatever he's partnering him
for or not As far as courtesy is concerned, you know,
it's it's a political question. He would he would look
(55:04):
at the polls and they would they would survey people
and he wouldn't have to decide right away. This all
turns on the notion that the president is being prosecuted
for something, though, and I think, yeah, that's that's possible
that a former president would be pursued by a prosecutor.
(55:24):
But without knowing exactly what the case is and exactly
what the what the dynamics of it all are, it's
hard to say what Pence would or wouldn't do in
that situation. Because if if there's a smoking gun and
he looks guilty and it looks bad, then a pardon
would look bad. And if it looks like it's some
technical thing or some disputable thing, and Pence wants the
(55:47):
country to move on and he thinks that he can
sell that idea that this is about moving on, then
maybe he would. But he would he would have to
look at what happened for it and and realize that
unless he has thirty points of approval ratings to the spare,
he probably has to be real careful about.
Speaker 1 (56:05):
That, because it's tantamount to political suicide, or at least
it seems that's the That's the way the average voter
would would look at a vice president right there, would
gaze unfavorably upon that, regardless of the circumstances that led
to that decision.
Speaker 5 (56:24):
Well, I think that's the main thing that's different between
now and Watergate. You can talk about an average voter
in the seventies, and we were still being governed from
the center at that point, and now things are so
polarized and we've got two sides that have completely irreconcilable
(56:44):
versions of reality, and so there isn't an average voter
really like there isn't anyone in the middle. So I'm
not sure that I'm not sure that the political suicide
notion is something that translates exactly from the seventies. I mean,
he would have to take that seriously, he'd have to
(57:05):
look at what the poles say, but it would it
would play out in a weirdly different way. The same
with impeachment. Nixon didn't go until the Republicans turned on him.
The Democrats were in control of Congress. It looked like
they were going to drive the impeachment forward, but it
wasn't going to be successful until and unless the Republicans
(57:26):
turned against him. Well, that's the same situation now. You
don't get two thirds to vote to convict in the
Senate unless both parties agree. But you don't have anyone
in the middle anymore, and the Republicans have to pay
attention to the Republican primary voters. And with that polarization,
it's harder to paint a picture where something happens and
(57:51):
everyone agrees that it's bad, like it was in the seventies.
Speaker 1 (57:56):
And I, you know, I'm having a hard time emphasizing
how much I appreciate that point about polarization, because for
everyone listening, regardless where you find yourself falling in your
own personal, political or ideological stances, the fact of the
(58:17):
matter is that the public in general is increasingly polarized.
And although precedent does exist, Professor cult, I think you
make some fascinating, fantastic, and to some degrees disturbing points
about the differences between previous decades and the age in
(58:40):
which we live today. Before we conclude today's episode, Professor,
we have a question for you that we are certain
is on the minds of our fellow audience members here,
and that is this, where can where can listeners go
to learn more about your work and to learn more
(59:02):
about the concept of pardoning or self pardoning specifically, So.
Speaker 5 (59:09):
I would recommend if people are interested in my book.
That Chapter two of the book is the most comprehensive
treatment that I've produced on the self pardon question. For
twenty years, I was the only person talking about it.
Most of the discussion in the last year and a
half has drawn on the things that I've said, whether
(59:33):
they cited them or not. I think the book is
the best place to go. Just go to Amazon, type
in my last name, Kalt and constitutional cliffhangers, and it
should come right up. I think they've sold out of
the hardcovers, but the paperbacks are still available, and the
ebook version is still there. If they want to read
(59:55):
the original article in the Yell Law Journal nineteen ninety six, again,
google my name Calt and pardon me and SSRN. It'll
come up there and you can download the original article.
Speaker 3 (01:00:15):
Awesome, We'll get out there on Amazon. Find that book,
check it out. There's all by the way, Professor called
you are all over just the Washington Post and the Internet.
When people are talking about this subject, you get a
lot of calls, don't you.
Speaker 5 (01:00:29):
I do. It's a nice change from twenty years of
people thinking that it was ridiculous to even be talking
about this. Probably my highlight was in the preface of
the book, I talk about how I'm writing this book,
and I'm at this reception and I'm talking to this
prominent legal thinker and he asked me what I'm writing about,
and I tell him, and he looked at me and says,
(01:00:50):
why are you writing about that? And fast forward to
twenty eighteen and he has a piece in the Washington
Post about out whether the president can part himself.
Speaker 3 (01:01:01):
So, oh man, it's a little terrifying that you're you know,
you were on the right track.
Speaker 1 (01:01:09):
But it's a prescient as well. And we would like
to thank you again for being so generous with your
time with us today and for correcting or clarifying some
of the misconceptions regarding pardons in general that are so
common in the US, and I would say in larger
(01:01:31):
international context as well. So ladies and gentlemen, thank you
for tuning in. Please let us know further questions that
you may have while you're listening to today's episode regarding
the concept of self pardoning. You can find Matt Nole
and I on Instagram. You can find us on Facebook,
(01:01:52):
you can find us on Twitter, you can find us
on our fan page. Here's where it gets crazy.
Speaker 4 (01:01:57):
And boy does it ever get crazy.
Speaker 3 (01:01:59):
In that fan page, Professor called do you have a
Twitter that you'd like to plug here?
Speaker 5 (01:02:05):
Yes, I'm on Twitter. I'm at Profbrian Cault.
Speaker 3 (01:02:11):
There you go, prepare yourself for a lot of inquisitive minds.
Speaker 5 (01:02:16):
Well, you know Twitter brings out the best in people,
doesn't it.
Speaker 3 (01:02:19):
Yes, that's what I hear. And that's the end of
this classic episode. If you have any thoughts or questions
about this episode, you can get into contact with us
in a number of different ways. One of the best
is to give us a call. Our number is one
eight three three STDWYTK. If you don't want to do that,
you can send us a good old fashioned email.
Speaker 1 (01:02:41):
We are conspiracy at iHeartRadio dot com.
Speaker 3 (01:02:45):
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