July 27, 2018 • 61 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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Speaker 1 (00:00):
From UFOs to psychic powers and government conspiracies. History is
riddled with unexplained events. You can turn back now or
learn the stuff they don't want you to know. Welcome
(00:24):
back to the show. My name is Matt, my name
is Noel. They call me Ben. We are joined with
our super producer Paul. Pardon me, decond, 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
(00:47):
see a spiritual successor I love that to an earlier
episode that we did back in two thousand and seventeen,
we explored the strange case of yellow Stones 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 prosecute,
(01:09):
sort of like a purge zone where you could just
you know, all bets are off Billy Nilly, crime Town, 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 man. Yes.
In spoiler alert for all of you would be supervillains
in the crowd today, it will not work in practice.
Do not attempt it. However, in this episode, we relied
(01:33):
heavily on the work of Professor Brian c Cult, the
man who discovered the loophole in the first place, and
he actually wrote back to us and 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. Yes,
(01:53):
and this uh. When when we received this email, we
were delighted because in the course of our search 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 Colt has investigated a question increasingly important
(02:14):
and relevant 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 primary source.
Friends and neighbors, we would like to introduce you to
Professor Brian Coult. Thank you so much for joining us
(02:35):
on the show. Today, professor, Oh, thanks guys, glad to
be here. First off, can you tell us, just in
your own words, what what you do every day? What
are you studying, what are you teaching. Well, I'm a
law professor at Michigan State University and UH I teach
towards an administrative law, but my research has pretty much
always focused on constitutional law and more recently the constitutional
(02:58):
law of the president's things like pardons, impeachment amendment, that
sort of stuff. 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,
(03:22):
and it seems like occasionally there are also misconceptions about this. Yeah,
so there definitely are. Um. Presidential pardon is actually a
range of possible things, but at its fullest extent of
pardon forgives a an offender for the crime that they committed. Um.
(03:45):
That's the most common way it's practice. It's usually someone
who's already served their sentence, but the pardon sort of
removes the conviction from his record, removes any sort of
consequences that remains. If he's still suffering from some civil
rights deprivations, like he can't own a gun or uh
(04:06):
can't get certain licenses. Those go away along with the conviction.
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, UM, that can
prevent them from going to prison. And if the person
(04:26):
is in prison uh and in the middle of the sentence,
the pardon would free them. The pardon can also be
something less than that. It includes the part of commute
a sentence, so you're not overturning the conviction, but you
are shortening the sentence, maybe letting them go earlier or immediately. Um.
There's also the power to remit fines. If you had
(04:49):
to pay a fine, 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
(05:10):
then won't be crimes. Uh. Finally, 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. Who can't use the pardon
to interfere with or overturn the result of an impeachment.
Can you clear up for us just a little bit,
(05:31):
what exactly is the the state of being impeached and
how does that relate to being fired from a job
or given having given a vote of no confidence? Sure,
so the impeachment process is people talk about impeachment um
to refer to the whole process, but impeachment is just
the first part. So that the House of Representatives, by
(05:54):
a simple majority vote, can impeach any executive or judicial
officer of the federal government. And that's kind of like
indicting someone. Basically, 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
(06:16):
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 the Chief Justice of the United States presides, um,
and if a two thirds majority of the Senate votes
are convict then you're convicted. You're removed from office at
(06:37):
that point, um, unless you are no longer in office.
That's a whole other that's all other chapter of my
last book. Can you impeach people after they've left office?
But impeachment again, just refers to the accusation. It's like
the indictment, Ah, I see, so not immediately in and
(06:58):
of itself a proven thing, just an accusation exactly. It
was like Clinton, for example, you know, did not get
removed from office, but was impeached. Correct or was m
I misremembering that centured I believe, yes, yeah, Clinton, Clinton
was impeached, Andrew Johnson was impeached. Neither of them were convicted.
(07:18):
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,
He wasn't found responsible for whatever it is he did.
Have we seen a successful full realization of the impeachment
process from a president I can't think of one, not
(07:41):
of a president, only the only people convicted under the
federal system have been judges. M And going back to
this concept of pardons, we were interested in learning a
little bit about your personal story. I believe you're some
of your first published work on this concept occurred in
(08:04):
six during your time with the Yale Law Journal, or
you wrote for the Yale Law Journal in this regard,
When did you first begin investigating this question and what
originally inspired you to do so. So I was a
law student at Yale and I was taking a criminal
procedure class. And people make fun of Yale sometimes Yale
(08:25):
Law School for being overly theoretical. Um, and sometimes that's
a that's a fair, fair accusation. But so, for instance,
in our criminal procedure class, we're talking about presidential pardons,
which is not really an important part of criminal procedure
in the ordinary course of things. But the professor had
(08:45):
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 for
a second and said, I don't know. Why don't you
look into that? So so that weekend I went to
(09:08):
the library and I read a bunch of stuff, and
I came back on Monday and I 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, it sounds interesting. Why don't you Why
don't you write something up. I'll, you know, call it
an independent study. You get a couple of credits for it,
(09:29):
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. Um, I
asked the professor, Oh, should I send it around other places?
He said, well, you know law reviews. The way that works.
When you publishes as a student, it's it's kind of
hard to get published. Send it out to a hundred places.
(09:52):
You'll probably get a hundred rejections, but who knows, maybe
you'll be lucky, you'll get ninety nine rejections. Uh and um. I.
Before I did that, I resubmitted it to the Yale Journal,
and they decided to to take it on the second try. Um.
One of the main concerns about publishing it was it
just it seemed like a ridiculous thing to even think about, right, Like,
(10:15):
why would a president, how could that ever happen? Um.
This was in the Clinton administration. It was before Whitewater
really got heated up. Um, it was before people started
asking about the self pardon in the Clinton context. So
my first task was just sort of making it seem relevant.
So I talked about Nixon, and Nixon had asked his
(10:38):
lawyer about it, and his 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 then was not that uh far in the past,
(10:59):
when he pardoned all of the Iran contract defendants after
he had lost the election, and some people thought, maybe
he'll he'll pardon himself. Um, But it was you know,
they made fun of it. They said, this is this
is kind of kind of out there, and and what
what I think is most important about this? And I
(11:19):
and 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 President Trump
says he can pardon himself. Now everyone's talking about it,
and no one can make the arguments that they have
(11:42):
about self pardoned 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 partner himself. And
the Constitution doesn't care if you like Trump or not.
Either presidents can pardon themselves or they can't. So really,
the only time you can can get the real analysis,
(12:03):
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. Um. It was
uh sort of a curiosity out there for many years,
and then a few years ago I wrote a book
(12:27):
that looked at a bunch of these sorts of questions.
Can the president be impeached while he's uh, after he's president?
Can you prosecute a sitting president? Can the president pardon himself?
What about section four of the twenty Amendment for disabled presidents? Uh,
there's a loophole and term limits where where Obama or
George W. Bush could come back into office looking at
(12:50):
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 the politically uh preferable one for
us is um and um. The book came out in
and the argument about self pardons, I I added some
(13:11):
arguments against them. I also looked at the other side,
So the book gives both sides of the argument on it.
But again in twelve it's still all seemed hypothetical. So
I'm I'm glad that I said what I had to
say before I knew whether I whether I wanted the
president to partner himself or not. Absolutely, And that book
(13:32):
is constitutional cliffhangers, a legal guide for presidents and their enemies.
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
(13:55):
complex business network and things like that that maybe haven't
quite been in play in the way that we're seeing now.
Do you see it that way? Yeah? And so the
book tries to sketch out these sort of hypothetical scenarios
just to illustrate, just to make it, um, make it
more lifelike, give some color to it, and a lot
(14:17):
of the things that I tried to put in there,
I was thinking about, like, if this happened, what would
have to what would have to happen before a president
would pardon himself would 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, yeah, I can't
see the future. But I think that the book holds
(14:38):
up pretty well. In the chapter on can you prosecute
a sitting president, it's sort of I don't know. It
resonates a little bit with what's been going on this
last year and a half. The self pardoned chapter, uh,
similar things, the um the one on amendment which people
are talking about. When I wrote this book, I had
(14:58):
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 in the news,
four if you count the people saying that he should
impeach Hillary Clinton. UM. And so, yeah, I didn't I
(15:19):
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. And
What's one thing that is fascinating about various conversations we've
seen regarding the concept of self pardoning is uh, well,
I'd like to go back to the earlier example you
(15:40):
alluded to, UM with Nixon briefly in some work. It
was surprising to me and I think too many of
us to learn that Nixon had reportedly asked his own
legal team about this concept way back during his time
in office as correct. Yeah, I'm I'm not sure if
(16:03):
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, maybe they wouldn't have even
(16:25):
prosecuted him. We're not sure. So it was. It was
even then, even though it was very real at the time, UM,
it was still hypothetical. And the lawyers 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 and avoid impeachment. Impeachment
(16:48):
was already the process was already rolling. That would have
just accelerated it and that would have been the end.
And he and he knew it. He knew it would
have been the end. Can we jump back to article
to section two of the Constitute and just to really
go over lay the groundwork of exactly what the Constitution
says a pardon is um, so I can pull up
(17:10):
my my little copy of the Constitution here awesome article
to article to UH talks about the presidency and UH,
here we go article to section to Clause one, the
President dot dot dot shall have power to grant reprieves
and pardons for offenses against the United States, except in
(17:32):
cases of impeachment and that's it. That's all it says.
So everything else is just us kind of deciding. And
with that language, that pretty vague language, you get what
I've seen described as one of the most kinglike powers
of the presidency. That's how it appears, and I think
that's pretty accurate. I remember where I saw that. But
(17:52):
it just seems like a wave of the hand and
all your sins are wiped away. Yes, and 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 it's the most kinglike, or you
could see, the most CEO like. He just sort of
(18:14):
signs this paper and he doesn't have to go through
Congress um. 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 at a pardon and decide
if it was warranted or not. So it's it's unreviewable
in court. And he just says it and it happens.
(18:38):
He doesn't even uh need a lot of people to
uh 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. Um.
So it's it's the closest thing, like you said, to
what a king could do. And it is, Uh, it
(19:00):
is very tempting. I can imagine for for presidents to
look at that and think about how they might use it.
And we we know that traditionally presidents have not immediately
entered office and began exercising this ability to pardon people.
But but correct me if I'm wrong here. Did the
(19:23):
current president, Donald Trump, as we record this, did he
begin pardnering people earlier than in his time in office
than other presidents? Well, in recent history there has been
sort of a shift. Presidents have pardoned less recently than
they did in the past, and they sort of um waited,
(19:46):
waited till the end to do many of them. But
it wasn't the earliest in a presidential term that a
president had had done it. It was unusual, but it
wasn't unheard of. Uh. And in a way that's that's
actually a good thing because the design of the pardon power,
we talked about it being a king like power, but remember,
(20:07):
the president is 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. He's
always uh politically accountable, even though he doesn't run for
re election for two more years, even if he's in
his second term and not going to be running for
(20:28):
re election, he's politically accountable to the whole country all
at once. He's got a political capital to spend UM.
And that's where the framers of the Constitution wanted the
power to reside. So if presidents do what UH President
Obama did by waiting until after the election to commute
(20:50):
all of those um sentences in the um disproportionate UH
sentences for for drug offenses. He's been talking about it,
but he didn't do it until after the election. Or
President Clinton on his last day in office, partnering Mark
Rich partnering Susan McDougall, partnering Roger Clinton, his own brother,
(21:12):
waiting until after the election when he's not at all
politically accountable. Or President George H. W. Bush partnering the
Iran countradefendant again after the election, the president is supposed
to be politically accountable. It's it's sort of this this
little loophole that he still has the power even when
he's not. But that's not how it's supposed to work.
(21:34):
So on president's partner 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. All right,
we're gonna be right back with more from Professor called
after a quick sponsor break, and we're back. Professor. Please
(21:58):
correct me if I'm wrong, but I'm just going to
make a statement here that is what I believe to
be true. Um. 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. Right, Yes, to the extent that we
(22:20):
have precedent, we take those precedents seriously or are bound
by them, depending on what kind of precedent it is.
Is there any foundational case or precedent that has to
do with this at all? A president partnering himself, Well,
we we don't have any case law directly on point
on presidents partnering themselves. Um. The argument against self pardons
(22:43):
relies on a whole bunch of theories and doctrines that
haven't really been tested either. It really is uh fair
to say 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
(23:04):
people with pardon powers purporting to pardon themselves, mayors and governors,
and um, those those cases are sort of obscure. They
hadn't really been um tested 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,
(23:30):
is distinct from any state or local pardon power. What
was Dr Bonham's case, So this this was a British
case back in the seventeenth century, and uh the issue
in that case is, I would say, the power of
(23:51):
Parliament over the king um and the power of the
common law over the parliament. Um. So I don't know,
it's it's sort of a fundamental case for judicial review.
People think about it as looking at the ability of
(24:13):
courts to strike down statutes or not. Um. I 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
(24:35):
and it's contrary to what what have you natural law
or common right and reason was was how they put
in that case, then then the judges have to, uh,
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
(24:57):
president has done, if it's illegal, um, then the court
has to say so, they have to say what the
law is. And if the law is that the statute
is unconstitutional, then they're supposed to say so. The actual
case was about, you know, sort of a weird medical
(25:18):
licensing issue back in seventeenth century England. So I'm not
I'm not real up to date on what exactly was
going on. Dr Bonham and himself. The Washington Post just
cited it as the foundational case for possibly this subject.
And as we're speaking about some popular sources of media
(25:40):
and news here in the US, professor, earlier in May
of seventeen, you wrote a piece for the Wall Street
Journal about the twenty five Amendment, and specifically section four.
I believe we mentioned it briefly at the beginning of
our conversation today, but I was wondering if you could
(26:03):
tell us and the audience what what the significance of
section four of the amendment is in this conversation. Well.
Section four of the twenty 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, um.
(26:28):
The 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 for when the president can't declare that
he's disabled or won't, and it allows the vice president
and the majority of the cabinet to declare that the
president is unable to discharge the powers and duties of
(26:50):
his office. Then the vice president becomes acting president. Um.
It doesn't remove the president from office. Um, 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 if there's a disagreement there or
if he's unconscious, once he regains consciousness, he can say
(27:10):
I'm fine. Uh. If the vice president and cabinet disagree,
then it goes to Congress and Congress has to decide.
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 do his job before before he loses. So
(27:32):
it's it's really um, it's never been used. Section three
has been used. President's going in for coolin Oscary's going
to be unconscious for a couple of hours. Uh, he
hands over power to the vice president. That's happened three times.
But section four has never been used. And um, you
know a lot of people look at it and think, oh, well,
(27:53):
if if the president is nuts, then the vice president
and cabinet should say so, and then then that will
remove him from office. But it won't. If he's lucid
enough to contest the action, it would probably result in
him getting his powers back within a few days, and
and now he'd be mad. So it's not I'm not
(28:13):
sure how it relates two self pardons, other than the
possibility that if they thought he was about to try
to pardon himself. Maybe they could invoke section four. Um,
I went, I went and found the Washington Post piece
you're talking about. I I had read it before h
Lawrence Tribe normas, and it's one of these things and
(28:36):
and I and I should say this in in in general,
a lot of the discussion about presidential self pardons gets
these headlines. And it's not always the authors that that
that's say that. Sometimes it's just the headline over simplifying.
But the headline says, no, Trump can't pardon himself. The
Constitution tells us so. And you can find things that
(29:00):
are equally certain of people 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's 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
(29:22):
can say at this point is we don't know. The
president can try. It might work, it might not. And
we can say, here's what I would say if I
were a judge, and I would agree with um tribe
painter and Eisen and this Washington Post piece saying, um,
I think the best reading of the Constitution is that
the president can't pardon himself. But um, there are good
(29:48):
arguments on both sides. And I found where they talked
about on the versus College of Physicians that was there
their um source for the notion that you can't be
the judge in your own case. I'm I'm actually kind
of proud that it didn't occur to me to link
(30:08):
Bonham's case with self pardons, because I think that's a
very roundabout, in obscure way to get to that point.
One of the main arguments that the president can't pardon
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. Well, it turns out that's
(30:29):
the part of the case that they were drawing on,
which is why I didn't even didn't even occur to it.
It didn't even occur to me. Isn't there also the
notion that a pardon is inherently the nature of it
is that it's for someone else. Yes, So that was
the main argument that I added in in two thousand twelve.
Friend of mine in law school. When I was writing
(30:49):
this original article is 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 someone else, not something
you give it yourself. And I said, now, I don't know.
I don't think so, I don't. I don't want to
make room for that. Then, uh, sixteen years later, when
I'm writing it, it occurs to me that I think
(31:11):
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 um sort of well,
like 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
(31:32):
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 with that argument, the idea is Um. The argument
that the president can part himself is it doesn't say
he can't. It says he shall have power to grant pardons,
(31:54):
and and it says there's an exception for impeachment. It
doesn't have any other exceptions. They say, well, if they
want to make an exception, then they would have said,
and they didn't. So he can do he can do it.
But there are 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
(32:17):
something he hasn't done yet. You can only pardon past acts.
Um doesn't say that anywhere in the Constitution. Where do
they get that from. Well, the courts are very clear
that you can only pardon things that have already happened.
But Uh, 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
(32:39):
someone else. And you can look at other words that
have the same Latin root, Uh, pardon are um, 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. If
you said pardon me, you're asking for other is to
(33:00):
excuse something that you have done. Just in like a
social situation. If I say pardon me, Matt, where I
have belts or something, Matt would say of course, good sir,
you know, yeah and stop a built directions. Yes that
that probably also has UH roots in in Mary Old
England too, But um, I think in addition to the
(33:21):
argument that a pardon is inherently something you give to
someone else, and the notion that the courts disapprove of
people being the judge in their own case, there's also
a historical argument based on how the UH people debating
the Constitution the Constitutional Convention talked about pardon powers. They
(33:42):
were worried about giving the pardon power to the president,
and um Edmund Randolph, one of the delegates, proposed this
is all recorded in James Madison's notes. Edmund Randolph said, well,
we we need to make 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.
(34:03):
He said, the traders maybe his own instruments and so
we can't let the president of the power to pardon
these other traders that he's a trader along with and um.
James Wilson Lay, another delegate later on the Supreme Court responded.
He said, if the president be himself a party to
(34:23):
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 what
this tells us is, first of all, if any of
those people thought that the president could pardon himself, the
(34:46):
notion that well, if the president's guilty, we can just
prosecute him, that wouldn't have been persuasive at all. And
no one, no one said that, So they must not
have thought that the president can pardon himself. Um. Additionally,
if if anyone thought the president could partner himself, then
they would have talked about restricting that, not saying he
couldn't parton traitors, but that he couldn't partner himself. But
(35:07):
they didn't. Um. They did they say the president can
partner 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
think I think that there is an argument on the
other side of this, which is um that the president
(35:29):
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 not
a it's not a killer argument, Like I said, they're
good arguments on both sides, but to me, it's a
it's a pretty persuasive one. I think it's the best
(35:50):
argument against self pardons because again, it's in the Constitution,
it's inherent in the definition of the word parton itself. Absolutely,
But where does this lead us? We'll be back after
a word from our sponsor. Going off our hypothetical pardon
(36:10):
me example, Let's go into the realm of speculation just
just a bit. Let's imagine that the current president or
just any president does somehow successfully attempt this move this
(36:33):
this they successfully pardon themselves. What would happen afterward? What
sort of impact would this have on the US government?
On the hearts and minds of the public. What what
kind of consequences or implications could we possibly expect if
(36:57):
something like this were ever to occur. Yeah, I think
ultimately that's the most important question because, Um, just like impeachment,
the pardon power exists in a in a political context.
If the president thinks it's a good idea to pardon someone,
then he does it, and and that's why he has
the power. And so thinking about how it would look
(37:21):
in my own writing, I set up this hypothetical example
of a president who has been accused of all these crimes,
and there's some questions whether you can prosecute the while
they're in office. So he's running for uh, he's in
the second term. So there's there's an election going on
(37:41):
and it's very divisive, and and the the other party
is saying the 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
(38:02):
he didn't end up doing it. Um, And that person
wins the election, and the president has been saying all along,
I didn't do anything wrong, and my my people and
my administration, I haven't done anything wrong. And and so
he he waits until again he's not politically accountable anymore,
(38:22):
and he says, um, well, just I'll just read here.
He says, for ten months, these scurless accusations 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 to do this, and he's
(38:43):
going to use it. So that's how the president, I
think most likely would frame it. That he's not forgiving
himself for doing something wrong, he is preventing these runaway
prosecutors from doing an injust just to him. That's how
he would spend it, and certain percentage of the country
(39:05):
would probably go along with that. So politically, the question
would be how many people would buy that, uh, that
line 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 prosecuted while in office,
(39:28):
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 the president, pardon someone who hasn't been charged with
anything yet, um, 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
(39:49):
fallout is much less. So to answer your question, if
the president is not on his way out of office,
if they're pursuing him and he says I'm just gonna
I'm just gonna pardon myself, I think the political file
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
(40:11):
it's not clear that the president can partner himself. It
would be uh swiftly appealed up to the Supreme Court,
I think, um, 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 I think that, um, he's a crook, would think
(40:33):
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 partnering yourself is okay. I think
you know, you need to 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,
and we talked about, um, what would have happened if
(40:53):
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 the whole
Watergate scandal. He had very high approval ratings and he
decides he's going to pardon Nixon, and immediately it's very
controversial decision. His approval ratings drop. Most of the data
(41:16):
that I've seen suggest it cost him the election in
nineteen seventy six. Two years later, he's running for re election.
He are not re election, but uh to stay in
office for four more years, and he narrowly loses. He
It was a close election. And if you and if
you look at the data, what people thought about that pardon.
(41:36):
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 been convincing at all. Um. So, So, politically,
if the president is still in office, it would be
(41:57):
a it would be throwing a bomb. Um. 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 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
(42:17):
what the courts had to say about it. But then
on the flip side of the uh 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,
would they wouldn't they still encounter uh the same enormous
(42:40):
potential 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 opponents thinking it's a
bad idea. Wouldn't a lot of people in the the
anti administration side see that as uh an a smoking
(43:00):
gun more or less indicating some sort of truth to
all the problems they had with that administration. Well, I
think they could. They could look at that and say, see,
see what kind of person this is? Um. But I
think that supporters would say what they've been saying all along,
if they if they have supported him this long, in
(43:21):
saying that the accusations against him are false, they would
probably go along for the ride there too. Um. And
And that's an important thing about pardons that I think
is overlooked a lot. I had a piece. I don't
know if anyone saw it, um, but I I but
I liked it. It was in the New York Daily News,
um a few weeks ago, where you hear people say
(43:44):
this a lot that pardon is a declaration of guilt,
and that accepting a pardon is an admission of guilt. Um.
And 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. Um.
That notion that a pardon is an admission of guilt,
(44:05):
accepting a pardon is an admission of guilt. Is uh
taking this one line from this one Supreme Court case
out of context and reading it into a completely different
one and and really missing the point. Presidents almost always
use pardons to forgive guilty people who maybe don't deserve
(44:28):
the punishment that they got UM. But they can also
Presidents can also use the pardon power to exonerate people.
And and it's not the most usual use of it,
but sometimes they do. President Ford pardon Nixon forgiving someone
who is guilty. He also pardoned Tokyo Rose. She had
(44:48):
been convicted of making propaganda broadcast during World War two UM,
and she was an American citizen living in Japan, and
they said, oh, she was broadcasting these terrible things. Turns
out sixty Minutes does a story. It turns out the
case against her was based on perjury and it was
(45:09):
totally uh trumped up charges against her, and she was
completely innocent, and and sixty Minutes had this big story
about it. And President for Zella's is terrible. Let's let's
do what we can to Pardner and he and he
did not because she was guilty. It wasn't a declaration
of guilt, but because she wasn't guilty. And when she
(45:29):
accepted the pardon, she wasn't admitting she was guilty. She
was accepting it because she wasn't. And uh, 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. The case against him was was bogus. So
(45:50):
this notion that he won't do it because it would
require him to admit guilt, I think it's wrong, and
people are are missing the potential for President to put
it in the language that that I had it in
my book, where he says, I'm not guilty, I'm innocent. Um,
and these people are coming 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
(46:11):
would say, And so any political reaction would would have
to reflect that context. If the president was saying I'm guilty,
but um, hey, it's good to be the king and
and pardon himself, that would be much more controversial, uh,
much more unacceptable. But I think also as a result
much less likely to happen. So let's talk a kind
(46:36):
of an out there hypothetical strategy, knowal that you were
talking about earlier. Um, 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, and then
(46:57):
step back in Yes, so as I, I guess that's
what you're referring to section for twenty five Amendment about Yes, um,
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 um be able to
(47:19):
be done with impunity. Because if if the president did that,
and then presumably you know, once he's back, he pardons
the vice president, uh quid pro quote um, those pardons
would be valid. Right when you're the president or near
the acting president, you pardon someone that that pardon sticks,
(47:39):
but you also can be impeached for that, and you
can be prosecuted for it too if it's part of
a criminal enterprise. So if 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 for the bribe. Um, and
because you and only pardon something that's already been done.
(48:02):
If the pardon is this criminal, you can't pardon yourself
for partnering yourself, right the last one. They'll always get
you for the last one. So so yeah, the president
could could hand over power to the vice president. The
vice president pardons and hands power back he returns to
the favor, or he could resign. Uh. That's that's basically
(48:22):
what Nixon and Ford did. Nixon resigned, Ford pardon Nixon.
Ford didn't need a pardon, so there was no sort
of quid pro quo there. Um. 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.
(48:44):
There there are some people who would say that a
court would would 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, um, it doesn't actually mean
anything unless one tries to do something to you that
the pardon says they can't. So if you have a
pardoner and they say, well, I'm going to prosecute you say,
(49:07):
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 partner the president he pardons himself, or
the vice president partners 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
(49:30):
able to do if the pardon were valid, that we
would find out. And 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
(49:51):
about these hypotheticals, but um, it's it's also hard to imagine, um,
the vice president wanting to get his hands dirty in
that way. Um, 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
(50:13):
less instructive it is. It's hard hard to draw lessons
from it. Ford pardons Nixon. To me, that's like a
back room conversation where Nixon is like, no, that's how
I see it. Uh. Why why did Ford pardon Nixon
knowing there would be political fallout? It seems like it
was something he was like doing a favor for for Nixon. Yeah,
there are there are a lot of people who think
that Nixon made a deal with Ford. I'll resign and
(50:36):
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 thought
that losing the office was punishment enough, all that sort
of stuff, And um, I don't I don't think that
(50:59):
Nixon really they had any leverage over Ford. Like if
if he says, well, I'll resign, but only if you
promised to pardon me for if you if he was
answering honestly, he said, well, I was going to pardon
you anyway? Why are you saying that? Um or or
he could say why I, which which he actually did say.
This is all in in his autobiography and uh, it's
(51:23):
been reported and al Haig's book. Um El Haigu came
to Ford before Nixon resigned. Haigue was Nixon's chief of
staff and said, um, will you uh, will you commit
to pardonering Nixon? And Ford didn't say yes, and he
(51:44):
didn't say no, And 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 Hay he said,
I'm not committing to anything. But but Nixon didn't have
any leverage. He was he was going to get impeached
and removed. Uh, he was gonna have to resign anyway
or no pardon. Did he really want to pardon? Sure?
Was Ford going to pardon him anyway? Sure? But was
(52:04):
there a deal? I don't think so. 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 why are we
talking about Trump partnering himself when the president has kind
of been that as a courtesy, your VP will pardon
you anyway. Well, I think maybe Pence will look at
(52:26):
what happened for it when Ford pardon Nixon and say,
if I want to get elected in or whatever the
next election is, if if has 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, um, then that
(52:48):
would be politically difficult for him to do. Ford had
the political space because he hadn't been mixed up in Watergate.
He had he had the space to do that and
not have it look like, uh a an inside deal.
In the same way, when when Bush pardon the Iran
contrat defendants, that was controversial for that reason because Bush
(53:11):
was one of them. It looked like he was he
was helping them out of a mass that he uh
he was in two um so so well, 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 at the polls and and they
(53:33):
would they would survey people, and he wouldn't have to
decide right away. Um. This all turns on the notion
that the president is being prosecuted for something, though, and
I I think, um, yeah, that's that's possible that a
former president would be pursued by a prosecutor. But without
(53:53):
knowing exactly what the cases 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. Um.
And if it looks like it's some technical thing or
some disputable thing, and and Pence wants the country to
(54:15):
move on, and he thinks that he can sell that
idea that this is about moving on, then maybe what
but he would he would have to look at what
happened for it and and and realize that unless he
has thirty points of approval ratings to spare, he he
probably has to be real careful about that, because it's
tantamount to political suicide, or at least it seems that's
(54:38):
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. Well,
I think that's the main thing that's different between now
and Watergate. Um. You can talk about an average voter
(54:58):
in in the seventies and and we were still being
governed from the center at that point, and now things
are so polarized, and and we've got two sides that
that have completely irreconcilable versions of reality. And so there
isn't an average voter really like there. There isn't anyone
in the middle. So I'm I'm I'm not sure that.
(55:21):
I'm not sure that the political suicide notion is um,
something that translates exactly from the seventies. I mean, yet,
he would have to take that seriously, He'd have to
look at what the poll say, but it would it
would play out in in a in a weirdly different way. Um.
The same with impeachment. UM, Nixon didn't go until the
(55:45):
Republicans turned on them. 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 turned against him. Well, that's the same situation.
Now you don't get two thirds to vote to convict
in the Senate less both parties agree. Um, but you
don't have anyone in the middle anymore. And the Republicans
(56:07):
have to pay attention to the Republican primary voters. And
with that polarization, Um, it's it's harder, harder to paint
a picture where something happens and everyone agrees that it's bad,
like it was in the seventies. And you know, I'm
having a hard time emphasizing how much I appreciate that
(56:30):
point about polarization, because for everyone listening, regardless where you
find yourself falling in your own personal political or ideological stances, Uh,
the fact of the matter is that the public in
general is increasingly polarized. And although precedent does exist. You know,
(56:54):
Professor cult, I think you make some uh fascinating, fantastic,
and to some degrees, disturbing points about the differences between
previous decades and the age in which we live today.
Before we conclude today's episode, Professor, we have a question
(57:16):
for you that we're certain is on the minds of
our 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 about the concept of
pardoning or self pardoning specifically. So I would recommend um
(57:39):
if 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 pardoned 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 they cited
(58:01):
or not. I think the book is the best place
to go. Just go to Amazon UM type in my
last name, k A. LT and Constitutional Cliffhangers and it
should come right up. I think they sold out of
the hardcovers, but the paperbacks are still available in the UM.
The E book version is still there. If they want
(58:21):
to read the original article UM in the Yellow Journal.
UM again, google my name cult and pardon me and
S S R n UM. It'll come up there and
you can download the original article. Awesome. We'll get out
(58:43):
there on Amazon. Find that book, check it out. We
there's all by the way, uh 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. I do. UM. It's it's a
nice change for UM twenty years of people thinking that
it was ridiculous to even be talking about this. UM.
(59:05):
Probably my highlight was in the preface of the book.
I I talked about how I'm writing this book and
I 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, says,
why are you writing about that? And fast forward to
and he has a piece in the uh Washington Post
(59:27):
about whether the president can partner himself. So, oh man,
it's a little terrifying that you're you know, you were
on the right track, 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
(59:48):
correcting or clarifying some of the misconceptions regarding pardons in
general that are so common in the US. And I
would say in larger international con text as well. Uh So,
ladies and gentlemen, thank you for tuning in. Uh please
let us know further questions that you may have while
(01:00:09):
you're listening to today's episode regarding the concept of self pardoning.
You can find Matt Nolan I on Instagram. You can
find us on Facebook, you can find us on Twitter.
You can find us on our fan page. Here's where
it gets crazy, and boy does it ever get crazy.
In that fan page, professor called do you have a
Twitter that you'd like to plug here? Yes, I'm on Twitter.
(01:00:35):
I'm at Prof Brian Coult. There you go prepare yourself
for for a lot of inquisitive minds. Well, you know
Twitter brings out the best in people, doesn't it. Yes,
that's what I hear. All right. If you don't want
to reach us, or if you don't have any questions,
you have any of that stuff, but you just want
to say something, you can always reach us via email.
(01:00:55):
We are conspiracy at how stuff Works dot com. I
From UFOs to psychic powers and government conspiracies. History is
riddled with unexplained events. You can turn back now or
learn the stuff they don't want you to know. Welcome
(00:24):
back to the show. My name is Matt, my name
is Noel. They call me Ben. We are joined with
our super producer Paul. Pardon me, decond, 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
(00:47):
see a spiritual successor I love that to an earlier
episode that we did back in two thousand and seventeen,
we explored the strange case of yellow Stones 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 prosecute,
(01:09):
sort of like a purge zone where you could just
you know, all bets are off Billy Nilly, crime Town, 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 man. Yes.
In spoiler alert for all of you would be supervillains
in the crowd today, it will not work in practice.
Do not attempt it. However, in this episode, we relied
(01:33):
heavily on the work of Professor Brian c Cult, the
man who discovered the loophole in the first place, and
he actually wrote back to us and 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. Yes,
(01:53):
and this uh. When when we received this email, we
were delighted because in the course of our search 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 Colt has investigated a question increasingly important
(02:14):
and relevant 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 primary source.
Friends and neighbors, we would like to introduce you to
Professor Brian Coult. Thank you so much for joining us
(02:35):
on the show. Today, professor, Oh, thanks guys, glad to
be here. First off, can you tell us, just in
your own words, what what you do every day? What
are you studying, what are you teaching. Well, I'm a
law professor at Michigan State University and UH I teach
towards an administrative law, but my research has pretty much
always focused on constitutional law and more recently the constitutional
(02:58):
law of the president's things like pardons, impeachment amendment, that
sort of stuff. 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,
(03:22):
and it seems like occasionally there are also misconceptions about this. Yeah,
so there definitely are. Um. Presidential pardon is actually a
range of possible things, but at its fullest extent of
pardon forgives a an offender for the crime that they committed. Um.
(03:45):
That's the most common way it's practice. It's usually someone
who's already served their sentence, but the pardon sort of
removes the conviction from his record, removes any sort of
consequences that remains. If he's still suffering from some civil
rights deprivations, like he can't own a gun or uh
(04:06):
can't get certain licenses. Those go away along with the conviction.
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, UM, that can
prevent them from going to prison. And if the person
(04:26):
is in prison uh and in the middle of the sentence,
the pardon would free them. The pardon can also be
something less than that. It includes the part of commute
a sentence, so you're not overturning the conviction, but you
are shortening the sentence, maybe letting them go earlier or immediately. Um.
There's also the power to remit fines. If you had
(04:49):
to pay a fine, 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
(05:10):
then won't be crimes. Uh. Finally, 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. Who can't use the pardon
to interfere with or overturn the result of an impeachment.
Can you clear up for us just a little bit,
(05:31):
what exactly is the the state of being impeached and
how does that relate to being fired from a job
or given having given a vote of no confidence? Sure,
so the impeachment process is people talk about impeachment um
to refer to the whole process, but impeachment is just
the first part. So that the House of Representatives, by
(05:54):
a simple majority vote, can impeach any executive or judicial
officer of the federal government. And that's kind of like
indicting someone. Basically, 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
(06:16):
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 the Chief Justice of the United States presides, um,
and if a two thirds majority of the Senate votes
are convict then you're convicted. You're removed from office at
(06:37):
that point, um, unless you are no longer in office.
That's a whole other that's all other chapter of my
last book. Can you impeach people after they've left office?
But impeachment again, just refers to the accusation. It's like
the indictment, Ah, I see, so not immediately in and
(06:58):
of itself a proven thing, just an accusation exactly. It
was like Clinton, for example, you know, did not get
removed from office, but was impeached. Correct or was m
I misremembering that centured I believe, yes, yeah, Clinton, Clinton
was impeached, Andrew Johnson was impeached. Neither of them were convicted.
(07:18):
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,
He wasn't found responsible for whatever it is he did.
Have we seen a successful full realization of the impeachment
process from a president I can't think of one, not
(07:41):
of a president, only the only people convicted under the
federal system have been judges. M And going back to
this concept of pardons, we were interested in learning a
little bit about your personal story. I believe you're some
of your first published work on this concept occurred in
(08:04):
six during your time with the Yale Law Journal, or
you wrote for the Yale Law Journal in this regard,
When did you first begin investigating this question and what
originally inspired you to do so. So I was a
law student at Yale and I was taking a criminal
procedure class. And people make fun of Yale sometimes Yale
(08:25):
Law School for being overly theoretical. Um, and sometimes that's
a that's a fair, fair accusation. But so, for instance,
in our criminal procedure class, we're talking about presidential pardons,
which is not really an important part of criminal procedure
in the ordinary course of things. But the professor had
(08:45):
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 for
a second and said, I don't know. Why don't you
look into that? So so that weekend I went to
(09:08):
the library and I read a bunch of stuff, and
I came back on Monday and I 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, it sounds interesting. Why don't you Why
don't you write something up. I'll, you know, call it
an independent study. You get a couple of credits for it,
(09:29):
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. Um, I
asked the professor, Oh, should I send it around other places?
He said, well, you know law reviews. The way that works.
When you publishes as a student, it's it's kind of
hard to get published. Send it out to a hundred places.
(09:52):
You'll probably get a hundred rejections, but who knows, maybe
you'll be lucky, you'll get ninety nine rejections. Uh and um. I.
Before I did that, I resubmitted it to the Yale Journal,
and they decided to to take it on the second try. Um.
One of the main concerns about publishing it was it
just it seemed like a ridiculous thing to even think about, right, Like,
(10:15):
why would a president, how could that ever happen? Um.
This was in the Clinton administration. It was before Whitewater
really got heated up. Um, it was before people started
asking about the self pardon in the Clinton context. So
my first task was just sort of making it seem relevant.
So I talked about Nixon, and Nixon had asked his
(10:38):
lawyer about it, and his 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 then was not that uh far in the past,
(10:59):
when he pardoned all of the Iran contract defendants after
he had lost the election, and some people thought, maybe
he'll he'll pardon himself. Um, But it was you know,
they made fun of it. They said, this is this
is kind of kind of out there, and and what
what I think is most important about this? And I
(11:19):
and 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 President Trump
says he can pardon himself. Now everyone's talking about it,
and no one can make the arguments that they have
(11:42):
about self pardoned 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 partner himself. And
the Constitution doesn't care if you like Trump or not.
Either presidents can pardon themselves or they can't. So really,
the only time you can can get the real analysis,
(12:03):
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. Um. It was
uh sort of a curiosity out there for many years,
and then a few years ago I wrote a book
(12:27):
that looked at a bunch of these sorts of questions.
Can the president be impeached while he's uh, after he's president?
Can you prosecute a sitting president? Can the president pardon himself?
What about section four of the twenty Amendment for disabled presidents? Uh,
there's a loophole and term limits where where Obama or
George W. Bush could come back into office looking at
(12:50):
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 the politically uh preferable one for
us is um and um. The book came out in
and the argument about self pardons, I I added some
(13:11):
arguments against them. I also looked at the other side,
So the book gives both sides of the argument on it.
But again in twelve it's still all seemed hypothetical. So
I'm I'm glad that I said what I had to
say before I knew whether I whether I wanted the
president to partner himself or not. Absolutely, And that book
(13:32):
is constitutional cliffhangers, a legal guide for presidents and their enemies.
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
(13:55):
complex business network and things like that that maybe haven't
quite been in play in the way that we're seeing now.
Do you see it that way? Yeah? And so the
book tries to sketch out these sort of hypothetical scenarios
just to illustrate, just to make it, um, make it
more lifelike, give some color to it, and a lot
(14:17):
of the things that I tried to put in there,
I was thinking about, like, if this happened, what would
have to what would have to happen before a president
would pardon himself would 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, yeah, I can't
see the future. But I think that the book holds
(14:38):
up pretty well. In the chapter on can you prosecute
a sitting president, it's sort of I don't know. It
resonates a little bit with what's been going on this
last year and a half. The self pardoned chapter, uh,
similar things, the um the one on amendment which people
are talking about. When I wrote this book, I had
(14:58):
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 in the news,
four if you count the people saying that he should
impeach Hillary Clinton. UM. And so, yeah, I didn't I
(15:19):
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. And
What's one thing that is fascinating about various conversations we've
seen regarding the concept of self pardoning is uh, well,
I'd like to go back to the earlier example you
(15:40):
alluded to, UM with Nixon briefly in some work. It
was surprising to me and I think too many of
us to learn that Nixon had reportedly asked his own
legal team about this concept way back during his time
in office as correct. Yeah, I'm I'm not sure if
(16:03):
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, maybe they wouldn't have even
(16:25):
prosecuted him. We're not sure. So it was. It was
even then, even though it was very real at the time, UM,
it was still hypothetical. And the lawyers 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 and avoid impeachment. Impeachment
(16:48):
was already the process was already rolling. That would have
just accelerated it and that would have been the end.
And he and he knew it. He knew it would
have been the end. Can we jump back to article
to section two of the Constitute and just to really
go over lay the groundwork of exactly what the Constitution
says a pardon is um, so I can pull up
(17:10):
my my little copy of the Constitution here awesome article
to article to UH talks about the presidency and UH,
here we go article to section to Clause one, the
President dot dot dot shall have power to grant reprieves
and pardons for offenses against the United States, except in
(17:32):
cases of impeachment and that's it. That's all it says.
So everything else is just us kind of deciding. And
with that language, that pretty vague language, you get what
I've seen described as one of the most kinglike powers
of the presidency. That's how it appears, and I think
that's pretty accurate. I remember where I saw that. But
(17:52):
it just seems like a wave of the hand and
all your sins are wiped away. Yes, and 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 it's the most kinglike, or you
could see, the most CEO like. He just sort of
(18:14):
signs this paper and he doesn't have to go through
Congress um. 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 at a pardon and decide
if it was warranted or not. So it's it's unreviewable
in court. And he just says it and it happens.
(18:38):
He doesn't even uh need a lot of people to
uh 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. Um.
So it's it's the closest thing, like you said, to
what a king could do. And it is, Uh, it
(19:00):
is very tempting. I can imagine for for presidents to
look at that and think about how they might use it.
And we we know that traditionally presidents have not immediately
entered office and began exercising this ability to pardon people.
But but correct me if I'm wrong here. Did the
(19:23):
current president, Donald Trump, as we record this, did he
begin pardnering people earlier than in his time in office
than other presidents? Well, in recent history there has been
sort of a shift. Presidents have pardoned less recently than
they did in the past, and they sort of um waited,
(19:46):
waited till the end to do many of them. But
it wasn't the earliest in a presidential term that a
president had had done it. It was unusual, but it
wasn't unheard of. Uh. And in a way that's that's
actually a good thing because the design of the pardon power,
we talked about it being a king like power, but remember,
(20:07):
the president is 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. He's
always uh politically accountable, even though he doesn't run for
re election for two more years, even if he's in
his second term and not going to be running for
(20:28):
re election, he's politically accountable to the whole country all
at once. He's got a political capital to spend UM.
And that's where the framers of the Constitution wanted the
power to reside. So if presidents do what UH President
Obama did by waiting until after the election to commute
(20:50):
all of those um sentences in the um disproportionate UH
sentences for for drug offenses. He's been talking about it,
but he didn't do it until after the election. Or
President Clinton on his last day in office, partnering Mark
Rich partnering Susan McDougall, partnering Roger Clinton, his own brother,
(21:12):
waiting until after the election when he's not at all
politically accountable. Or President George H. W. Bush partnering the
Iran countradefendant again after the election, the president is supposed
to be politically accountable. It's it's sort of this this
little loophole that he still has the power even when
he's not. But that's not how it's supposed to work.
(21:34):
So on president's partner 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. All right,
we're gonna be right back with more from Professor called
after a quick sponsor break, and we're back. Professor. Please
(21:58):
correct me if I'm wrong, but I'm just going to
make a statement here that is what I believe to
be true. Um. 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. Right, Yes, to the extent that we
(22:20):
have precedent, we take those precedents seriously or are bound
by them, depending on what kind of precedent it is.
Is there any foundational case or precedent that has to
do with this at all? A president partnering himself, Well,
we we don't have any case law directly on point
on presidents partnering themselves. Um. The argument against self pardons
(22:43):
relies on a whole bunch of theories and doctrines that
haven't really been tested either. It really is uh fair
to say 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
(23:04):
people with pardon powers purporting to pardon themselves, mayors and governors,
and um, those those cases are sort of obscure. They
hadn't really been um tested 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,
(23:30):
is distinct from any state or local pardon power. What
was Dr Bonham's case, So this this was a British
case back in the seventeenth century, and uh the issue
in that case is, I would say, the power of
(23:51):
Parliament over the king um and the power of the
common law over the parliament. Um. So I don't know,
it's it's sort of a fundamental case for judicial review.
People think about it as looking at the ability of
(24:13):
courts to strike down statutes or not. Um. I 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
(24:35):
and it's contrary to what what have you natural law
or common right and reason was was how they put
in that case, then then the judges have to, uh,
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
(24:57):
president has done, if it's illegal, um, then the court
has to say so, they have to say what the
law is. And if the law is that the statute
is unconstitutional, then they're supposed to say so. The actual
case was about, you know, sort of a weird medical
(25:18):
licensing issue back in seventeenth century England. So I'm not
I'm not real up to date on what exactly was
going on. Dr Bonham and himself. The Washington Post just
cited it as the foundational case for possibly this subject.
And as we're speaking about some popular sources of media
(25:40):
and news here in the US, professor, earlier in May
of seventeen, you wrote a piece for the Wall Street
Journal about the twenty five Amendment, and specifically section four.
I believe we mentioned it briefly at the beginning of
our conversation today, but I was wondering if you could
(26:03):
tell us and the audience what what the significance of
section four of the amendment is in this conversation. Well.
Section four of the twenty 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, um.
(26:28):
The 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 for when the president can't declare that
he's disabled or won't, and it allows the vice president
and the majority of the cabinet to declare that the
president is unable to discharge the powers and duties of
(26:50):
his office. Then the vice president becomes acting president. Um.
It doesn't remove the president from office. Um, 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 if there's a disagreement there or
if he's unconscious, once he regains consciousness, he can say
(27:10):
I'm fine. Uh. If the vice president and cabinet disagree,
then it goes to Congress and Congress has to decide.
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 do his job before before he loses. So
(27:32):
it's it's really um, it's never been used. Section three
has been used. President's going in for coolin Oscary's going
to be unconscious for a couple of hours. Uh, he
hands over power to the vice president. That's happened three times.
But section four has never been used. And um, you
know a lot of people look at it and think, oh, well,
(27:53):
if if the president is nuts, then the vice president
and cabinet should say so, and then then that will
remove him from office. But it won't. If he's lucid
enough to contest the action, it would probably result in
him getting his powers back within a few days, and
and now he'd be mad. So it's not I'm not
(28:13):
sure how it relates two self pardons, other than the
possibility that if they thought he was about to try
to pardon himself. Maybe they could invoke section four. Um,
I went, I went and found the Washington Post piece
you're talking about. I I had read it before h
Lawrence Tribe normas, and it's one of these things and
(28:36):
and I and I should say this in in in general,
a lot of the discussion about presidential self pardons gets
these headlines. And it's not always the authors that that
that's say that. Sometimes it's just the headline over simplifying.
But the headline says, no, Trump can't pardon himself. The
Constitution tells us so. And you can find things that
(29:00):
are equally certain of people 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's 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
(29:22):
can say at this point is we don't know. The
president can try. It might work, it might not. And
we can say, here's what I would say if I
were a judge, and I would agree with um tribe
painter and Eisen and this Washington Post piece saying, um,
I think the best reading of the Constitution is that
the president can't pardon himself. But um, there are good
(29:48):
arguments on both sides. And I found where they talked
about on the versus College of Physicians that was there
their um source for the notion that you can't be
the judge in your own case. I'm I'm actually kind
of proud that it didn't occur to me to link
(30:08):
Bonham's case with self pardons, because I think that's a
very roundabout, in obscure way to get to that point.
One of the main arguments that the president can't pardon
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. Well, it turns out that's
(30:29):
the part of the case that they were drawing on,
which is why I didn't even didn't even occur to it.
It didn't even occur to me. Isn't there also the
notion that a pardon is inherently the nature of it
is that it's for someone else. Yes, So that was
the main argument that I added in in two thousand twelve.
Friend of mine in law school. When I was writing
(30:49):
this original article is 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 someone else, not something
you give it yourself. And I said, now, I don't know.
I don't think so, I don't. I don't want to
make room for that. Then, uh, sixteen years later, when
I'm writing it, it occurs to me that I think
(31:11):
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 um sort of well,
like 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
(31:32):
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 with that argument, the idea is Um. The argument
that the president can part himself is it doesn't say
he can't. It says he shall have power to grant pardons,
(31:54):
and and it says there's an exception for impeachment. It
doesn't have any other exceptions. They say, well, if they
want to make an exception, then they would have said,
and they didn't. So he can do he can do it.
But there are 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
(32:17):
something he hasn't done yet. You can only pardon past acts.
Um doesn't say that anywhere in the Constitution. Where do
they get that from. Well, the courts are very clear
that you can only pardon things that have already happened.
But Uh, 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
(32:39):
someone else. And you can look at other words that
have the same Latin root, Uh, pardon are um, 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. If
you said pardon me, you're asking for other is to
(33:00):
excuse something that you have done. Just in like a
social situation. If I say pardon me, Matt, where I
have belts or something, Matt would say of course, good sir,
you know, yeah and stop a built directions. Yes that
that probably also has UH roots in in Mary Old
England too, But um, I think in addition to the
(33:21):
argument that a pardon is inherently something you give to
someone else, and the notion that the courts disapprove of
people being the judge in their own case, there's also
a historical argument based on how the UH people debating
the Constitution the Constitutional Convention talked about pardon powers. They
(33:42):
were worried about giving the pardon power to the president,
and um Edmund Randolph, one of the delegates, proposed this
is all recorded in James Madison's notes. Edmund Randolph said, well,
we we need to make 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.
(34:03):
He said, the traders maybe his own instruments and so
we can't let the president of the power to pardon
these other traders that he's a trader along with and um.
James Wilson Lay, another delegate later on the Supreme Court responded.
He said, if the president be himself a party to
(34:23):
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 what
this tells us is, first of all, if any of
those people thought that the president could pardon himself, the
(34:46):
notion that well, if the president's guilty, we can just
prosecute him, that wouldn't have been persuasive at all. And
no one, no one said that, So they must not
have thought that the president can pardon himself. Um. Additionally,
if if anyone thought the president could partner himself, then
they would have talked about restricting that, not saying he
couldn't parton traitors, but that he couldn't partner himself. But
(35:07):
they didn't. Um. They did they say the president can
partner 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
think I think that there is an argument on the
other side of this, which is um that the president
(35:29):
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 not
a it's not a killer argument, Like I said, they're
good arguments on both sides, but to me, it's a
it's a pretty persuasive one. I think it's the best
(35:50):
argument against self pardons because again, it's in the Constitution,
it's inherent in the definition of the word parton itself. Absolutely,
But where does this lead us? We'll be back after
a word from our sponsor. Going off our hypothetical pardon
(36:10):
me example, Let's go into the realm of speculation just
just a bit. Let's imagine that the current president or
just any president does somehow successfully attempt this move this
(36:33):
this they successfully pardon themselves. What would happen afterward? What
sort of impact would this have on the US government?
On the hearts and minds of the public. What what
kind of consequences or implications could we possibly expect if
(36:57):
something like this were ever to occur. Yeah, I think
ultimately that's the most important question because, Um, just like impeachment,
the pardon power exists in a in a political context.
If the president thinks it's a good idea to pardon someone,
then he does it, and and that's why he has
the power. And so thinking about how it would look
(37:21):
in my own writing, I set up this hypothetical example
of a president who has been accused of all these crimes,
and there's some questions whether you can prosecute the while
they're in office. So he's running for uh, he's in
the second term. So there's there's an election going on
(37:41):
and it's very divisive, and and the the other party
is saying the 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
(38:02):
he didn't end up doing it. Um, And that person
wins the election, and the president has been saying all along,
I didn't do anything wrong, and my my people and
my administration, I haven't done anything wrong. And and so
he he waits until again he's not politically accountable anymore,
(38:22):
and he says, um, well, just I'll just read here.
He says, for ten months, these scurless accusations 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 to do this, and he's
(38:43):
going to use it. So that's how the president, I
think most likely would frame it. That he's not forgiving
himself for doing something wrong, he is preventing these runaway
prosecutors from doing an injust just to him. That's how
he would spend it, and certain percentage of the country
(39:05):
would probably go along with that. So politically, the question
would be how many people would buy that, uh, that
line 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 prosecuted while in office,
(39:28):
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 the president, pardon someone who hasn't been charged with
anything yet, um, 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
(39:49):
fallout is much less. So to answer your question, if
the president is not on his way out of office,
if they're pursuing him and he says I'm just gonna
I'm just gonna pardon myself, I think the political file
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
(40:11):
it's not clear that the president can partner himself. It
would be uh swiftly appealed up to the Supreme Court,
I think, um, 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 I think that, um, he's a crook, would think
(40:33):
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 partnering yourself is okay. I think
you know, you need to 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,
and we talked about, um, what would have happened if
(40:53):
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 the whole
Watergate scandal. He had very high approval ratings and he
decides he's going to pardon Nixon, and immediately it's very
controversial decision. His approval ratings drop. Most of the data
(41:16):
that I've seen suggest it cost him the election in
nineteen seventy six. Two years later, he's running for re election.
He are not re election, but uh to stay in
office for four more years, and he narrowly loses. He
It was a close election. And if you and if
you look at the data, what people thought about that pardon.
(41:36):
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 been convincing at all. Um. So, So, politically,
if the president is still in office, it would be
(41:57):
a it would be throwing a bomb. Um. 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 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
(42:17):
what the courts had to say about it. But then
on the flip side of the uh 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,
would they wouldn't they still encounter uh the same enormous
(42:40):
potential 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 opponents thinking it's a
bad idea. Wouldn't a lot of people in the the
anti administration side see that as uh an a smoking
(43:00):
gun more or less indicating some sort of truth to
all the problems they had with that administration. Well, I
think they could. They could look at that and say, see,
see what kind of person this is? Um. But I
think that supporters would say what they've been saying all along,
if they if they have supported him this long, in
(43:21):
saying that the accusations against him are false, they would
probably go along for the ride there too. Um. And
And that's an important thing about pardons that I think
is overlooked a lot. I had a piece. I don't
know if anyone saw it, um, but I I but
I liked it. It was in the New York Daily News,
um a few weeks ago, where you hear people say
(43:44):
this a lot that pardon is a declaration of guilt,
and that accepting a pardon is an admission of guilt. Um.
And 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. Um.
That notion that a pardon is an admission of guilt,
(44:05):
accepting a pardon is an admission of guilt. Is uh
taking this one line from this one Supreme Court case
out of context and reading it into a completely different
one and and really missing the point. Presidents almost always
use pardons to forgive guilty people who maybe don't deserve
(44:28):
the punishment that they got UM. But they can also
Presidents can also use the pardon power to exonerate people.
And and it's not the most usual use of it,
but sometimes they do. President Ford pardon Nixon forgiving someone
who is guilty. He also pardoned Tokyo Rose. She had
(44:48):
been convicted of making propaganda broadcast during World War two UM,
and she was an American citizen living in Japan, and
they said, oh, she was broadcasting these terrible things. Turns
out sixty Minutes does a story. It turns out the
case against her was based on perjury and it was
(45:09):
totally uh trumped up charges against her, and she was
completely innocent, and and sixty Minutes had this big story
about it. And President for Zella's is terrible. Let's let's
do what we can to Pardner and he and he
did not because she was guilty. It wasn't a declaration
of guilt, but because she wasn't guilty. And when she
(45:29):
accepted the pardon, she wasn't admitting she was guilty. She
was accepting it because she wasn't. And uh, 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. The case against him was was bogus. So
(45:50):
this notion that he won't do it because it would
require him to admit guilt, I think it's wrong, and
people are are missing the potential for President to put
it in the language that that I had it in
my book, where he says, I'm not guilty, I'm innocent. Um,
and these people are coming 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
(46:11):
would say, And so any political reaction would would have
to reflect that context. If the president was saying I'm guilty,
but um, hey, it's good to be the king and
and pardon himself, that would be much more controversial, uh,
much more unacceptable. But I think also as a result
much less likely to happen. So let's talk a kind
(46:36):
of an out there hypothetical strategy, knowal that you were
talking about earlier. Um, 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, and then
(46:57):
step back in Yes, so as I, I guess that's
what you're referring to section for twenty five Amendment about Yes, um,
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 um be able to
(47:19):
be done with impunity. Because if if the president did that,
and then presumably you know, once he's back, he pardons
the vice president, uh quid pro quote um, those pardons
would be valid. Right when you're the president or near
the acting president, you pardon someone that that pardon sticks,
(47:39):
but you also can be impeached for that, and you
can be prosecuted for it too if it's part of
a criminal enterprise. So if 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 for the bribe. Um, and
because you and only pardon something that's already been done.
(48:02):
If the pardon is this criminal, you can't pardon yourself
for partnering yourself, right the last one. They'll always get
you for the last one. So so yeah, the president
could could hand over power to the vice president. The
vice president pardons and hands power back he returns to
the favor, or he could resign. Uh. That's that's basically
(48:22):
what Nixon and Ford did. Nixon resigned, Ford pardon Nixon.
Ford didn't need a pardon, so there was no sort
of quid pro quo there. Um. 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.
(48:44):
There there are some people who would say that a
court would would 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, um, it doesn't actually mean
anything unless one tries to do something to you that
the pardon says they can't. So if you have a
pardoner and they say, well, I'm going to prosecute you say,
(49:07):
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 partner the president he pardons himself, or
the vice president partners 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
(49:30):
able to do if the pardon were valid, that we
would find out. And 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
(49:51):
about these hypotheticals, but um, it's it's also hard to imagine, um,
the vice president wanting to get his hands dirty in
that way. Um, 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
(50:13):
less instructive it is. It's hard hard to draw lessons
from it. Ford pardons Nixon. To me, that's like a
back room conversation where Nixon is like, no, that's how
I see it. Uh. Why why did Ford pardon Nixon
knowing there would be political fallout? It seems like it
was something he was like doing a favor for for Nixon. Yeah,
there are there are a lot of people who think
that Nixon made a deal with Ford. I'll resign and
(50:36):
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 thought
that losing the office was punishment enough, all that sort
of stuff, And um, I don't I don't think that
(50:59):
Nixon really they had any leverage over Ford. Like if
if he says, well, I'll resign, but only if you
promised to pardon me for if you if he was
answering honestly, he said, well, I was going to pardon
you anyway? Why are you saying that? Um or or
he could say why I, which which he actually did say.
This is all in in his autobiography and uh, it's
(51:23):
been reported and al Haig's book. Um El Haigu came
to Ford before Nixon resigned. Haigue was Nixon's chief of
staff and said, um, will you uh, will you commit
to pardonering Nixon? And Ford didn't say yes, and he
(51:44):
didn't say no, And 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 Hay he said,
I'm not committing to anything. But but Nixon didn't have
any leverage. He was he was going to get impeached
and removed. Uh, he was gonna have to resign anyway
or no pardon. Did he really want to pardon? Sure?
Was Ford going to pardon him anyway? Sure? But was
(52:04):
there a deal? I don't think so. 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 why are we
talking about Trump partnering himself when the president has kind
of been that as a courtesy, your VP will pardon
you anyway. Well, I think maybe Pence will look at
(52:26):
what happened for it when Ford pardon Nixon and say,
if I want to get elected in or whatever the
next election is, if if has 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, um, then that
(52:48):
would be politically difficult for him to do. Ford had
the political space because he hadn't been mixed up in Watergate.
He had he had the space to do that and
not have it look like, uh a an inside deal.
In the same way, when when Bush pardon the Iran
contrat defendants, that was controversial for that reason because Bush
(53:11):
was one of them. It looked like he was he
was helping them out of a mass that he uh
he was in two um so so well, 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 at the polls and and they
(53:33):
would they would survey people, and he wouldn't have to
decide right away. Um. This all turns on the notion
that the president is being prosecuted for something, though, and
I I think, um, yeah, that's that's possible that a
former president would be pursued by a prosecutor. But without
(53:53):
knowing exactly what the cases 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. Um.
And if it looks like it's some technical thing or
some disputable thing, and and Pence wants the country to
(54:15):
move on, and he thinks that he can sell that
idea that this is about moving on, then maybe what
but he would he would have to look at what
happened for it and and and realize that unless he
has thirty points of approval ratings to spare, he he
probably has to be real careful about that, because it's
tantamount to political suicide, or at least it seems that's
(54:38):
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. Well,
I think that's the main thing that's different between now
and Watergate. Um. You can talk about an average voter
(54:58):
in in the seventies and and we were still being
governed from the center at that point, and now things
are so polarized, and and we've got two sides that
that have completely irreconcilable versions of reality. And so there
isn't an average voter really like there. There isn't anyone
in the middle. So I'm I'm I'm not sure that.
(55:21):
I'm not sure that the political suicide notion is um,
something that translates exactly from the seventies. I mean, yet,
he would have to take that seriously, He'd have to
look at what the poll say, but it would it
would play out in in a in a weirdly different way. Um.
The same with impeachment. UM, Nixon didn't go until the
(55:45):
Republicans turned on them. 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 turned against him. Well, that's the same situation.
Now you don't get two thirds to vote to convict
in the Senate less both parties agree. Um, but you
don't have anyone in the middle anymore. And the Republicans
(56:07):
have to pay attention to the Republican primary voters. And
with that polarization, Um, it's it's harder, harder to paint
a picture where something happens and everyone agrees that it's bad,
like it was in the seventies. And you know, I'm
having a hard time emphasizing how much I appreciate that
(56:30):
point about polarization, because for everyone listening, regardless where you
find yourself falling in your own personal political or ideological stances, Uh,
the fact of the matter is that the public in
general is increasingly polarized. And although precedent does exist. You know,
(56:54):
Professor cult, I think you make some uh fascinating, fantastic,
and to some degrees, disturbing points about the differences between
previous decades and the age in which we live today.
Before we conclude today's episode, Professor, we have a question
(57:16):
for you that we're certain is on the minds of
our 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 about the concept of
pardoning or self pardoning specifically. So I would recommend um
(57:39):
if 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 pardoned 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 they cited
(58:01):
or not. I think the book is the best place
to go. Just go to Amazon UM type in my
last name, k A. LT and Constitutional Cliffhangers and it
should come right up. I think they sold out of
the hardcovers, but the paperbacks are still available in the UM.
The E book version is still there. If they want
(58:21):
to read the original article UM in the Yellow Journal.
UM again, google my name cult and pardon me and
S S R n UM. It'll come up there and
you can download the original article. Awesome. We'll get out
(58:43):
there on Amazon. Find that book, check it out. We
there's all by the way, uh 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. I do. UM. It's it's a
nice change for UM twenty years of people thinking that
it was ridiculous to even be talking about this. UM.
(59:05):
Probably my highlight was in the preface of the book.
I I talked about how I'm writing this book and
I 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, says,
why are you writing about that? And fast forward to
and he has a piece in the uh Washington Post
(59:27):
about whether the president can partner himself. So, oh man,
it's a little terrifying that you're you know, you were
on the right track, 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
(59:48):
correcting or clarifying some of the misconceptions regarding pardons in
general that are so common in the US. And I
would say in larger international con text as well. Uh So,
ladies and gentlemen, thank you for tuning in. Uh please
let us know further questions that you may have while
(01:00:09):
you're listening to today's episode regarding the concept of self pardoning.
You can find Matt Nolan I on Instagram. You can
find us on Facebook, you can find us on Twitter.
You can find us on our fan page. Here's where
it gets crazy, and boy does it ever get crazy.
In that fan page, professor called do you have a
Twitter that you'd like to plug here? Yes, I'm on Twitter.
(01:00:35):
I'm at Prof Brian Coult. There you go prepare yourself
for for a lot of inquisitive minds. Well, you know
Twitter brings out the best in people, doesn't it. Yes,
that's what I hear. All right. If you don't want
to reach us, or if you don't have any questions,
you have any of that stuff, but you just want
to say something, you can always reach us via email.
(01:00:55):
We are conspiracy at how stuff Works dot com. I
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