Trump Can't Pardon Himself, But Will He?

but many constitutional scholars say that's not correct. It's something that's never been tested in the courts because no president has ever tried to pardon himself. Richard Nixon left office and waited for his former vice president Gerald Ford to pardon him. My guest is Frank Bowman, a professor at the University of Missouri School of Law. As far as pardoning other people, is there any limitation on a president's power to pardon someone. Let's say they're seen as a

co conspiritor and they haven't been charged yet. Is there any limitation? I think the answer is no, there's no limitation. Now, there are some people who disagree with me on that point, and I respect their views. I think that at least as a matter of the original interpretation of the pardon clause.

The Framers thought about that quite expressively. Their debate focused on the fact that has written the pardon clause extends to any crime, including treason, and a number of the Framers, both at the Philadelphia convention and in the ratifying conventions in the States, objected to the breadth of that because they said, wait a minute, if a president can pardon even treason, imagine as the president himself has been engaging in treason as activities and his co conspirators, although they

didn't use exactly that we're we're caught or were suspected, he could pardon them for treason and to VMP to discovery of his own guilt. And the framer's discussion pretty much assumed that that's undesirable, of course, but he is included within the pardon power. Has the pardon power ever been tested in court? Well, if you know that there were people who tried to challenge that you are Pio pardon you remember, back at the beginning of the Trump's presidency,

I think it was in two thousand and seventeen. Your Pio, a former sheriff of Americo County in Arizona had been charged with convicted of contempt of court arising out of a civil rights lawsuit to which he was a party. He had been convicted of criminal contempt before he could be sentenced, Trump pardoned, and there was a an effort to dispute that pardon on a couple of different grounds that were specific to the law criminal contempt, but they

never really got anywhere, and that the pardons stood. You know, there have been efforts to limit certain aspects of pardons, but there has certainly never been a court case that successfully overturned a presidential part Now, so just give us the broad framework of where the pardon power comes from and why the Framers gave the president to pardon power. Well, the pardoner comes from a very specific provision in the in the Constitution, which grants the president to pardon all

offenses read federal criminal offenses, except impeachments. So essentially, if a president could not, by use of the pardon, undo a congressional impeachment and conviction of any federal official or indeed of himself, that's clear. So the Framers wrote that specifically into the Constitution, specifically into the Article two Powers of the President United states. Where it comes from is that back into deep time, I suppose, is the British

practice whereby the crown was entitled pardon people. That British ideas sort of emerged from the notion that, at least in early British legal theory, the law was largely, not exclusively, kind of an emanation of the will of the king, and there perfect sense that legal guilt was really violation of the law, which was an emanation of the will of the king, that the king could in reverse, that could undo, it could reach down and reverse what the

king thought to be unfair or unjust excessive applications of

the law. Now, that became more refined over time. But there were also pardons pardon power written into the constitutions of the early American States from seventeen seventy six to when the Constitution was ratified, and there had been a long tradition of the ability of generally speaking the executive branch, but sometimes legislatures and sometimes the two working together to reach in to undo excessive, unfair, unjust applications of the

criminal law. Nothing straining your unusual about that. There was a debate in the Philadelphia Convention about whether or not the part and power for American constitutional purposes, it ought to rest exclusively in the president, or whether it ought to be shared with component of the legislature, particularly the Senate,

either generally or in relationship to partners for treason. And they kicked it back and forth, and they decided at the end of the day that it made better sense to leave this power in the hands of the single executives, partly because they thought that there would be occasions when it ought to be used expeditiously in it not not to be tied up into legislative delay. And they also thought of the part and power as intense a kind of inter branch check by the executive on excesses to

the legislature excess is of the judiciary. You can see an example of that kind of use of the part in power in President Obama's program to reduce the sentences of of non violent drug offenders, where he pardoned some you know, somewhere a thousand and two thousand first time drug offenders towards the end of his term, and that was the use of the executive part in power is the kind of systematic, systematic response or systemic response to the fact the fact that Congress has passed these long

manager a minimum sentences that applied even to people who are non violent drug offenders. And so that's the classic example of that of that use of the pardon. Explain why constitutional scholars disagree about whether a president can pardon himself series of reasons. First, it's never ever been done. No executive branch official, whether king, president, or governor, ever attempted to purge themselves, and you can see why that

would not be so. The pardon power, whether British or American, is designed for the chief executive to make a judgment about the behavior of others and to conclude either that they were adjusted, convicted or or excessively punished, perhaps rehabilitated themselves after a period of time. And just by its nature that idea doesn't involve making a judgment about yourself. We've always thought that making that kind of judgment about oneself is plainly going to be something that uh is

subject to abuse, and so it's never been done. That's the That's the thing that's really contrary to the dial theory. Second thing, without getting a lot of detail, there are a number of debates in that happened during the gratification of the Constitution. That made clear that although the Framers didn't specifically talk about the self pardon, it's pretty clear that they also didn't imagine that such a thing would be possible. They just didn't conceive it as being something

that to be done. They conceived the partners necessarily involving two parties. And they also wrote both the pardon clause and the impeachment clauses in a way that made it clear that they assumed that there were really three ways in the Constitution to check a criminally misbehaving president. The first peace was elections, of course, and they originally were kicking around the idea that perhaps elections would be enough

to restrain in the really seriously misbehaving executives. They ultimately decided that wouldn't be enough, so they then instituted the idea of in teachment, which itself as an old British idea, But they went a little further than that, and when they wrote the impeachment clauses, they wrote a limitation on

the consequences of impeachment. I mean, the American Constitution, if you're impeached and convicted by the Senate, the only consequences that happened directly as a results of that, or you lose your office, and if the Senate takes a second vote,

you can also be barred from future office holding. But in addition, they were very careful to say that although you can't be criminally punished directly, in other words, you can't be sent to prison, you can't be fined, you can't be executed directly as a result of being impeached in by the House and expected by the Senate. Each person remains subject to criminal punishment by the normal action of the court. That's written right into the impeachment clause.

So what I think you see here is that the framers imagine that there were these three ways of dealing with the criminal president, elections, impeachment, and the possibility of criminal prosecution. Now, if a president can simply pardon himself or anything, then the possibility of criminal prosecution for clonal misbehavior while in office essentially goes proof because it could

be taken completely off the board. It would eliminate one of the three constitutional checks on presidential miss Let's just say President Trump decides he's going to pardon himself. How would that even be tested in court? Would it take a federal prosecution charging him with a crime to test whether he had the power to pardon himself. That would be the principal way that it would happen, presumably the

members of Biden Justice partner would do. In a criminal investigation, they would conclude at looking at all the evidence that indeed the behavior merited in indictment. The indictment is returned by the grand jury, and the President would move to caution the indictment based on his own pardoner in the Department of Justice would resist that motion, claiming as the president has no such power. Now I think, frankly, that Trump is likely to try this, even though you know

it's constitutionally doubtful, because he might win. Maybe the Spreme Court would disagree with me, and other people don't think self pardners are possible. But he could also use the

self pardon to slow things down tremendously. Not only could he invoke his own pardoner himself if the department indicted him, but I suspect what he has lawyers to try to do is that as soon as it became evident that they were engaging in a criminal investigation of them, that he tried to stop at least important components of the investigation likes Penis, the witnesses Penis for documents by moving to quash him on the ground that they were being

issued in order to put together a prosecution, which wouldn't be possible because he pardoned himself. Now, I don't necessarily think that would be ultimately successful, but he could slow things down because to resist that claim, the government would have to resist the motion to quash. That would have to be decided at the trial court, then the Intermediate Court of Fields in the Supreme Court, and all that

takes time. So I think he's likely to try to do this because it certainly it seems that he's worried about at least criminal investigations of himself and others, and at a minimum, a self pardon is going to provide another avenue for delay. And as we know anything about Donald Trump and his approach to litigation over his long business and political is that he uses delay as a major tactic to try or resist the legal efforts of

his opponents. So if the Biden Justice Department decides not to prosecute Trump, then his self pardon will remain untested. That's true, although again I suspect Trump if you pardon himself, would be tempted at least to try to use the pardon to slow down not only any criminal investigation of him, but also potential civil or administrative investigations. I don't think that attempt would be successful, but I think he might try it, and therefore there might be other venues for

challenging it. But here's the thing. One of the perverse effects of Trump pardoning himself might be that a Biden Justice Department would feel obliged to pursue the matter. It's awfully tough, I think for an honest Justice Department to let that precedent stand, because it then if I'm challenged, it starts to gather force as something that presidents can do. And if he becomes even sort of generally accepted that

that's a possibility. Consider where we are. We already know, because it was a big issue during the Moller investigation that the Office of Legal Counsel within the Justice Department has long held the opinion that sitting presidents cannot be indicted while in office. Now I think that's constitutionally wrong, but as a practical matter, it's not something to be challenged because memos buying the Justice Department. Of the Justice

Department won't prosecute a sitting president. He can't be prosecuted, So that means that practically speaking, at present moment, a sitting president is not subject to federal criminal prosecution while he's there. If he can also self partner, that means

he's never subject criminal prosecution. And given the potential breadth of a partner which can't extend to any federal crime whatsoever and need all federals, and which at least potentially could be granted to one's self as president for periods extending before your presidents were You're talking about is creating a de facto regime in which, once somebody becomes president

and at its states combined operation of the OLC. Metlin myself pardon makes that person permanently immune from criminal consequences, at least in the federal courts, for anything he's done during his entire life. And a person who has that kind of immunity effectively assumes one of the attributes of monarchy.

One of the things that is true or was true actually remains true about British kings and queens if they are not subject to the operation of the ordinary courts criminal or civil of Great Britain, they are effectively immune from the law. One thing we know, if anything, about the framers of the Constitution, is that they did not intend to create in a president somebody who was the

de factl equivalent of King. If. If, if the president can can essentially pardon himself out of all criminal liability for everything in his entire life, we've created at least a kind of monarch. Just before, um, I let you go, would you just explain why the president cannot? There's no chance that the president can pardon himself from state crimes like those that the Manhattan District Attorney is investigating. The pardon power in the Constitution is very broad, indeed, but

it has some implicit limitations. One of them is that it applies only to federal offenses, so it doesn't relate to state crimes at all. Another implicit limitation is that it can only cover crimes that have already occurred at the time of the issuance to part. So that means um that Trump, even if in theory self pardons are available, um could not pardon himself or offenses that are committed

after he leaves office. And indeed he probably can't pardon himself or any ongoing offense that started before he pardons himself, quarantined anyone else, and continues after that pardon. So there are limitations, um, but at least as federal criminal offense before the assurance, the pardon, pardon towers very well. Thanks Frank. That's Professor Frank Bowman of the University of Missouri Law School.

The number of Americans hospitalized with COVID nineteen climbed to a record Sunday, a sign that the virus is still raging, but good news on the vaccine front. Today, Maderna announced plans to request clearance for its coronavirus vaccine the US and Europe after a new analysis showed the vaccine was highly effective in preventing COVID nineteen with no serious safety problems. At this pivotal time, states are not only facing decisions on how to manage the pandemic, but also on how

to distribute a vaccine. Joining me discuss this is Mark Houston, who has a healthcare regulatory and lobbying practice at Farrell Fritz. Normally, a governor is empowered to make decisions about lockdowns, but we've seen that the Supreme court recently has blocked Governor Andrew Cromo from re Impoe, saying strict capacity limits on New York City synagogues and Catholic churches. So tell us about how broad the governor's authority is and how it

can be restricted. In general, governors have very broad authority in regard to disaster emergencies. Every state has language that says in the event of a disaster emergency of any kind, including a public health emergency, generally the executive is granted extraordinary powers to do all kinds of things that the

executive normally cannot do. However, even though those statutes that grant uh that authority are are very broad, they are still subject to limitations imposed by the state constitution and by the federal Constitution. And that's what was that issue in the case in in regard to New York State, where you had a situation where the governor's police power for public health purposes was pitted squarely against questions of

religious rights. Uh, and uh, you know that always puts the court in a difficult position to try to figure out, um, you know, which which set of rights wins in a particular disagreement. And in this case, what they decided was UH that for a variety of reasons, UH, the UH the order as related to churches UH and synagogue in New York State needed to be enjoined and could not, in fact be enforced. So now, Mayor du Blasio and Governor Cuomo have clashed several times during the coronavirus pandemic,

particularly about whether or not schools should be operational. Who has the authority in that battle? Ultimately, UH, the decision regarding schools, any decision regarding schools in New York State is the responsibility of the governors. How are in regard to New York City schools, the mayor does have expansive authority um. And in this case, the issue turned on a rule that was set earlier that once the infection

rate top three, schools would once again eliminate in person instruction. UH. And you know the ultimately the disagreement turned on whether that was a good rule or not. And UH, you know, the the governor made the argument that, based on the most recent UH scientific information we had, maybe you didn't need to to abide by by such a bright line rule. And it sounds like the Mayor is ultimately agreeing. And this is illustrates. I think part of the the the

problem in a pandemic situation, right. Um. You know we I mentioned earlier the broad authority of governors UH in regard to disaster emergencies. I think part of the problem is those statutes that grant that our our premised on sort of typical disasters things like hurricanes, earthquakes, tornadoes, and not something that occurs over such a sustained period of time. And you know, as the pandemic has been evolving, our understanding of it has evolved, so we get new scientific

information over time. UH. And that I think properly has driven some some changes UH in in in the approach to two particular issues, and that question of in person schooling is absolutely one of them. So let's say that the mayor said that schools will remain closed. Does anyone have an ability to appeal that decision? Is it something that you would take to court? Sure, you certainly could, um. The UM. You know they're have courts have absolutely found

a right to education UM. And you know there has been, certainly in New York a considerable amount of litigation around that UM. And so you you have essentially another situation similar to the situation regarding churches and synagogues where uh, you know, you have this this right to education pitted against the police power of the states, So you you could absolutely make the argument. I mean, that's one of the great things about our system is you can always

make the argument. What the courts will say are a different matter. I think as far as the masks mask wearing, are there any states or cities who have really gotten serious about finding people who are not wearing masks? You know, you always hear sort of anecdotes about how how particular places are responding. Mask wearing is one of those things that folls on this continuum where you know, there's there's plenty of laws that everyone sort of recognizes and accepts about,

you know, governing people's clothing. You know, we have indecent exposure laws, for instance. But on the other hand, there is a natural and understandable concern about government mandating what you can wear and what you can't wear. In other situations, the key is always one of intention, and you know, a mask wearing statute accompanied by a fine, I think

under the current circumstances would probably survive judicial route. How will the federal government determine what states get the vaccine, how much of the vaccine they get, and which vaccine they get. Who makes that determination is the federal government. So that is one of those questions that UM is

in some ways up in the air. Uh. The federal government has issued a vaccine distribution plan, but it is expressed in very general terms, and I think mostly talks about how they're going to go about making those decisions, as opposed to what those decisions will be UM. States. Uh, you know I have already started to engage on that question themselves. Uh. And for instance here in New York. UM, you know, there is a I think a much more detailed plan as to what how those decisions are going

to be made. UM. There's not you know, a hard and fast existing rule driving that decision. Now, like so many things during the pandemic, UM, you know, Uh, the the decision makers are in a position where they can, uh they have a lot of leeway in how they make those decisions. And UH, I think you see the decision really turning on on two different things. Right. There is the decision about uh, you know, what is an

essential worker. UM. There's a general recognition that essential workers should probably have uh First priority or at least a high priority UM, and that generally involves workers who are involved in addressing the disease. And also UM sort of the second poll I think that uh, decision makers are are are aiming towards is workers essential to keeping the economy going. So that's sort of one set, and then the other set is, uh, you know, populations that are

disproportionately impacted by the disease. And there's a lot of overlap there, right, essential workers, uh you know, for instance, workers and hospitals who are supposed to the disease every day, uh, you know, are probably more likely to contract it. But there's there's other populations where you know, they wouldn't necessarily qualify as essential workers and yet still are disproportionately impacted, and and there is a sense that you then need to to put them high on the priority list for

receiving the vaccipation. Tomorrow, a panel of advisors at the c d C is going to meet to determine how to allocate the initial supplies of the vaccine. Is it up to the c d C or is it up to the president or someone in the cabinet. Everyone recognizes that the seat you see has primary responsibility for I think evaluating the science and making recommendations. What happens after that, uh is an interesting question, right because certainly some amount

of decision making could happen on the federal level. Traditionally public health related decision making has occurred though on the state level. UM So, I think this becomes a very interesting question, right where if if you face a situation where the federal government says one thing, in the state says something very different. Um. Uh. And I think you know, if push came to shove from a legal point of view,

I would guess the state would win. But uh, you know that a lot of that will depend on where the controversy arrises. So will there be groups lobbying about who gets the vaccine first or which vaccine they get because the vaccines seem to have different efficacies so far. Certainly, I mean that that's that's the one thing you can count on, particularly in an environment like this, when government

takes and necessarily has such a significant decision making role. Um. You know, it's not like uh it was before the pandemic, when you know the private sector could largely do what it wanted. I think there's a general recognition that government is making a lot of uh, the most important decisions here, if not the most important decisions, and um, you need to engage with government in order to uh, you know,

at least make sure your perspective is hurt. Uh. And by the way, this is yet another First Amendment right, the right to petition your government for redressive grievances. Uh. And that's that's something that you know is continues even in a in a COVID environment. So we've seen the problems with people not wanting to get the vaccine from measles, and I would anticipate that they're going to be a lot of people who don't want to get the vaccine for COVID. What can the state do? Can the state

do anything to compel people to get the vaccine? It's a great question. Uh. The there is generally a a I think strong hesitation to compel medical treatment, which is why historically, for instance, when it comes to things like vaccination, UM,

you won't see a flat out uh compulsion. There even sort of the Seminal case before the Supreme Court from involved in Massachusetts law where um there was a compulsive smallpox vaccination, but you could you could buy your way out of it, you could pay a fine and and

not get the vaccination. Um. And I think that that makes sense, right because there is you know that that sort of violation of bodily integrity, I think is something that uh, government across the board, you know, courts, executive and legislature all recognizes something that is significant and you know, should only be done in the most extreme cases. But that said, um, you know, the there it is recognize that the state has an interest in in protecting the

citizenry against disease. And so in general, courts have been very liberal in allowing government to make decisions that effectively compel it, for instance, requiring vaccination in order to attend school. So I think you would probably see something like that. Um. You you would definitely see people who are not going to take it. Uh. And then and the question becomeslicate, what what our government's options? Then? Can they you know, issue a fine? Can they imposed the fine for not

doing that? Um? And I guess it will probably ultimately depend on the numbers. Right if if they feel like enough people are getting the vaccination, irrespective of the people that refuse to do so, you might not see a lot done. Um. If they see widespread rejection of the vaccines, then government is going to have to take a harder look at it and maybe look towards, uh, you know, more serious measures. Thanks for being on the Bloomberg Glass Show. Mark,

that's Mark Houston of Farrell Fritz. I'm June Grosso. Thanks so much for listening, and please tune into The Bloomberg Glass Show every week night at ten dam Eastern on Bloomberg Radio.