CLASSIC: Can a President pardon himself?

for us today, friends and neighbors. In a way, it is a follow up or I would see a spiritual successor I love that to an earlier episode that we did back in twenty seventeen, we explored the strange case of Yellowstone's Zone of Death, a small area of land in rural America where an odd loophole allows, what's the best way to say, guys, allows in theory, someone to commit a crime and avoid prosecut.

enough to go directly to the prime source. Friends and neighbors, We would like to introduce you to Professor Brian Cault. Thank you so much for joining us on the show today.

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 remain, so if he's still suffering from some civil rights deprivations, like he can't own a gun or can't get certain licenses, those go away along with the conviction. The president can also pardon people before they've been convicted,

or even before they've been charged with anything. And if he does that, then by getting rid of any sort of criminal consequences for the person's actions, that can prevent them from going to prison. And if the person is in prison in the middle the sentence, the pardon would free them. The pardon can also be something less than that. It includes the power to commute a sentence, so you're not overturning the conviction, but you are shortening the sentence,

maybe letting them go earlier or immediately. There's also the power to remit fines. If you had to pay a fine, they can the president can make them pay you back. Important limits on this, though, are that the president only has this power with regard to federal offenses, and it has to be something you've already done, so the president can't pardon you in advance and give you sort of

a free path to commit crimes. That then won't be crimes. Finally, there is an exception for impeachment because the Constitution makes the impeachment process separate from the criminal justice process. So if someone's being impeached, the president can't do that. You can't use the pardon to interfere with or overturn the result of an impeachment.

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, and if a two thirds majority of the Senate boats a convict, then you're convicted. You're removed from office at that point, unless you are no longer in office. That's a whole other that's a whole other chapter of my last book.

Can you impeach people after they've left office? But impeachment again, just refers to the accusation. It's like the indictment.

the whole structure of the constitution. And you know, okay, great, how that's how it works in practice, but how is it in theory. That's what we really want to know. So we're talking about pardons, and I raised my hand and I said, can the president pardon himself, and Professor thought about it for a second, said I don't know. Why don't you look into that? So that weekend I went to the library and I read a bunch of stuff.

And I came back on Monday and I said, well, I did some research and can't say for sure, but I think the better argument is that he can't. And he said, well that sounds interesting. Why why don't you write something up. I'll you know, I'll call it an independent study. You get a couple of credits for it, maybe you could get it published somewhere. So I spent the next weekend doing a rough draft of that, submitted it to the Yale Law Journal, got rejected. Asked the

professor olsh I sent it around to other places. He said, well, you know law reviews. The way that works when he publish is as a student, it's kind of hard to get published. Send it out to a hundred places. You'll probably get a hundred rejections, but who knows, maybe you'll be lucky, you'll get ninety nine rejections. And before I did that, I resubmitted it to the Yale Law Journal and they decided to take it. On the second try.

One of the main concerns about publishing it was it just it seemed like a ridiculous thing to even think about, right, like, why would a president, how could that ever happen. This was in the Clinton administration, It was before Whitewater really got heated up. It was before people started asking about the self pardon in the Clinton contexts. So my first

task was just sort of making it seem relevant. So I talked about Nixon, and Nixon had asked his lawyer about it, and his lawyer said that Nixon could if he wanted, pardon himself, and some of the others in the administration said he couldn't. So it was talked about then.

Some people speculated about it a little bit at the end of the George H. W. Bush presidency, which back then was not that far in the past, when he pardoned all of the Iran contract defendants after he had lost the election, and some people thought maybe he'll pardon himself. But it was you know, they made fun of it, they said, this is kind of kind of out there.

And what I think is most important about this, and I continue to say this is the fact that it seemed unlikely, the fact that it seemed out there is exactly why it needed to be written about then, because now you see this fast forward to twenty eighteen, President Trump says he can pardon himself. Now everyone's talking about it, and no one can make the arguments that they have about self pardons without thinking about Trump. And if you don't like Trump, you don't want him to be able

to pardon himself. And if you do like Trump, you do want him to be able to pardon himself. And the Constitution doesn't care if you like Trump or not. Either presidents can pardon themselves or they can't. So really, the only time you can get the real analysis, get the real answer to the question is when it's purely hypothetical, and at that time it was, and so I wrote at the time what I thought was the best argument

against self pardons being constitutional. It was sort of a curiosity out there for many years, and then a few years ago, in twenty twelve, I wrote a book that looked at a bunch of these sorts of questions. Can the president be impeached while he's after he's president? Can you prosecute a sitting president? Can the president pardon himself? What about Section four of the twenty fifth Amendment for

disabled presidents. There's a loophole and term limits where where Obama or George W. Bush could come back into office looking at sort of crazy things like that, but again with the idea of looking at it when it's not happening, so that we can figure out what the right answer is and not what the politically preferable one for us is. And the book came out in twenty twelve, and the argument about self pardons, I added some arguments against them. I also looked at the other side, so the book

gives both sides of the argument on it. But again in twenty twelve, it's still all seemed hypothetical. So I'm glad that I said what I had to say before I knew whether whether I wanted the p to partner himself or not.

And I can't see the future, but I think that the book holds up pretty well. In the chapter on can you prosecute a sitting President? It sort of, I don't know. It resonates a little bit with what's been going on this last year and a half. The self pardon chapter, similar things, the one on twenty fifth Amendment, which people are talking about you. When I wrote this book, I had to try to convince people one of these

things might happen someday. It would be good if we thought about them now, and then within six months of Trump coming in, we had three of the six chapters in the news for if you count the people saying that they should impeach Hillary Clinton, and so, yeah, I didn't think any of this would be relevant anytime soon. I didn't know we would elect a president who tried to hit for the cycle based on my book.

At the time, it was still hypothetical. And the lawyer said, if you pardoned yourself. The option was presented as you pardon yourself and then you resign, because just politically, there's no way that you could do that and avoid impeachment. Impeachment was already the process was already rolling. That would have just accelerated it, and that would have been the end. And he knew it. He knew it would have been the end.

pardon and decide if it was warranted or not. So it's unreviewable in court. And he just says it and it happens. He doesn't even need a lot of people to sort of follow along. It's not like something he has to build support for. If he says, let this guy out of prison, they let that guy out of prison. So it's the closest thing, like you said, to what a king could do, and it is it is very tempting. I can imagine for presidents to look at that and think about how they might use it.

but remember the president's not a king. And the whole reason to give the president this power instead of giving it to say, Congress, by a congressional vote, you give it to the president because the president is politically accountable. He's always politically accountable, even though he doesn't run for reelection for two more years, even if he's in his second term and not going to be running for reelection. He's politically accountable to the whole country all at once.

He's got political capital to spend, and that's where the

framers of the Constitution wanted the power to reside. So if presidents do what President Obama did by waiting until after the election to commute all of those sentences and the disproportionate sentences for drug offenses, he'd been talking about it, but he didn't do it until after the election, Or President Clinton on his last day in office, pardoning Mark Rich, pardoning Susan McDougall, pardoning Roger Clinton, his own brother, waiting

until after the election when he's not at all politically accountable. Or President George H. W. Bush partnering the Iran counter defendants again after the election. The president is supposed to be politically accountable. It's sort of this little loop that he still has the power even when he's not. But

that's not how it's supposed to work. So when president's pardon early, that's good because then that means that Congress can respond and the voters can respond in the term elections, or in the presidential election.

cases are sort of obscure. They hadn't really been 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, is distinct from any state or local pardon power.

But basically the principle of Bonds case. What you'll see it's cited for is people will say, if there's a statute that Parliament passes, because this is an English case and it's contrary to what have you natural law or common right and reason was how they put in that case, then then the judges have to they have to declare it void. And so again this sort of spawned the concept of judicial review. A court looking at something that Congress has done or that a president has done. If

it's illegal, then the court has to say so. They have to say what the law is. And if the law is that this statute is unconstitutional, then they're supposed to say so. The actual case was about, you know, sort of a weird medical licensing issue back in seventeenth century England. So I'm not I'm not real up to date on what exactly was going on, doctor Bonham, and.

and he takes power back. Section four is thru when the president can't declare that he's disabled or won't, and it allows the vice president and a majority of the cabinet to declare that the president is unable to discharge the powers and duties of his office. Then the vice president becomes acting president. It doesn't remove the president from office,

and the president is still in office. He just is temporarily stripped of his powers and he can say I'm not disabled either right then if there's a disagreement there or if he's unconscious, once he regains consciousness, he can say I'm fine. If the vice president and cabinet disagree, then it goes to Congress and Congress has to decide. But the deck is stacked very heavily in favor of the president. There needs to be two thirds in the House and two thirds in the Senate agreeing that he's

unable to his job before before he loses. So it's it's really it's never been used. Section three has been used. President's going in for Kolonoskoy, he's going to be unconscious for a couple of hours. He hands over power to the vice president. That's happened three times, but Section four has never been used. And you know, a lot of people look at it and think, oh, well, if the president is nuts, then the vice president and cabinet should say so, and then then that'll remove him from office.

But it won't. If he's loocid enough to contest the action, it would probably result in him getting his powers back within a few days, and now he'd be mad. So it's not I'm not sure how it relates to self pardons, other than the possibility that if they thought he was about to try to pardon himself, maybe they could invoke Section four. I went, I went and found the Washington

Post piece you're talking about. I had read it before Lawrence Tribe normalize and it's one of these things and I and I should say this in general, a lot of the discussion about presidential self pardons gets these headlines, and it's not always the authors that let's say this. Sometimes it's just the headline oversimplifying. But the headline says, no, Trump can't pardon himself. The Constitution tells us so, and you can find things that are equally certain of people

saying yes, Trump can pardon himself. The Constitution tells us so, and they're both wrong. The Constitution doesn't tell us one way or the other. We've got it. It's Schrodinger's cat, right. We won't know until there's an actual case and when and if it happens a chortal rule on it, then we'll know. All we can say at this point is

we don't know. The president can try. It might work, it might not, and we can say, hey, here's what I would say if I were a judge, and I would agree with Tribe painter in Eisen in this Washington Post piece saying, I think the best reading of the Constitution is that the president can't pardon himself. But there are good arguments on both sides. And I found where they talked about Bonham versus College of Physicians. That was their source for the notion that you can't be the

judge in your own case. I'm actually kind of proud that it didn't occur to me to link Bonham's case with self pardons, because I think that's a very roundabout and obscure way to get to that point. One of the main arguments that the president can't parton himself is that you can't be the judge in your own case. And remember I said that it was about some obscure medical licensing issue. It turns out that's the part of the case that they were drawing on, which is why

I didn't even occur to it. It didn't even occur to me.

to make room for that. Then sixteen years later, when I'm writing it, it occurs to me, I think about it more that that's not actually worth including, that's not just worth including that's actually the best argument there is. All of this other stuff is sort of well, like you can't be a judge in your own case. Of courts will say you can't be the judge in your own case when they're ruling against you being the judge

in your own case. But there are other instances where they allow all kinds of self dealing, and they conveniently forget to mention that. But if you can find something in the text of the Constitution itself, that's the best kind of argument for me. That's persuasive to me. So with that argument, the idea is the argument that the president can pardon himself is it doesn't say he can't. It says he shall have power to grant pardons, and it says there's an exception for impeachment. It doesn't have

any other exceptions. They say, well, if they wanted to make an exception, then they would have said, and they didn't, so he can. He can do it. But there are limits inherent in what the definition of a pardon or granting a pardon is in itself. So, for instance, I mentioned before, you can't pardon someone for something he hasn't done yet. You can only pardon past acts doesn't say

that anywhere in the Constitution. Where do they get that from. Well, the courts are very clear that you can only pardon things that have already happened. But it's inherent in the notion of what a pardon is. So this argument is the same thing that a pardon is just by definition, something you give to someone else. And you can look at other words that have the same Latin root paradonai, 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.

Convention talked about pardon powers. They were worried about giving the pardon power to the president, and Edmund Randolph, one of the delegates, proposed This is all recorded in James Madison's notes. Edmund Randolph said, well, we need to make an exception. We need to not allow presidents to pardon people for treason. And the reason he said was the

president may himself be guilty. He said, the traders may be his own instruments, and so we can't let the president have the power to pardon these other traders that he's a trader along with. And James Wilson, another delegate later on the Supreme Court responded, he said, if the president be himself a party to the guilt, he can

be impeached and prosecuted. And everyone said, oh, yeah, that's right, And they voted and rejected Randolph's motion, and they didn't restrict the pardon power for cases of treason, and they didn't talk about self pardons. But what this tells us is, first of all, if any of those people thought that the president could pardon himself, the notion that, well, if

the president's guilty, we can just prosecute him. That wouldn't have been persuasive at all, and no one said that, so they must not have thought that the president can pardon himself. Additionally, if anyone thought the president could pardon himself, then they would have talked about restricting that, not saying he couldn't pardon traders, but that he couldn't pardon himself. But they didn't. They did they say the president can pardon himself. No, but I think that that little piece

of evidence shows that they thought that. It literally went without saying that a self pardon is not possible. I think that there is an argument on the other side of this, which is that the president is both the sovereign and a person, and so he can pardon himself because it's it would be Trump, the president giving a pardon to Trump the person, and so it's inherently bilateral that way. So you know, it's it's not a killer argument.

Like I said, there are good arguments on both sides, but to me, it's a it's a pretty persuasive one. I think it's the best argument against self pardons because again, it's in the constitution it's inherent in the definition of the word parton itself.

the hearts and minds of the public. What kind of consequences or implications could we possibly expect if something like this were ever to occur.

they're in office. So he's running for he's in a second term, so there's there's an election going on and it's very divisive, and the other party is saying the president's a crook, and if I get elected, the Kennedy, the other party says, if I get elected, I'm going to appoint this guy as prosecutor and we're going to go after the president, kind of like what Trump was saying he would do about Hillary Clinton, although he didn't end up doing it, and that person wins the election.

And the President has been saying all along, I didn't do anything wrong, and my people in my administration haven't done anything wrong. And so he waits until again he's not politically accountable anymore, and he says, well, I'll just read here. He says, for ten months, these scurreless accusations have paralyzed the country. We've been unable to work on the real problems Americans face. That problem was about to get worse. Enough is enough with this pardon. I'm ending

this expensive distraction. Right. He has the power to do this, and he's going to use it. So that's how the President, i think most likely, would frame it. That he's not forgiving himself for doing something wrong, he is preventing these runaway prosecutors from doing an injustice to him. That's how he would spin it, and a certain percentage of the country would probably go along with that. So politically, the question would be how many people would buy that line

of rhetoric. I think it would be a scandalous enough act to enough people that the president would wait until he was on his way out of office to do it, especially if he couldn't be secuted while in office. That's an open question too. But if you can't prosecute the president while he's in office, and you can, if you're the president, pardon someone who hasn't been charged with anything yet, then that sets up this potential. So on his way out of office he pardons himself. If he's on his

way out of office, then the political fallout as much less. So, to answer your question, if the president's not on his way out of office, if they're pursuing him and he says I'm I'm just gonna pardon myself, I think the political follow would be tremendous. I think the prosecutor who was pursuing him would not just say, oh, I guess I can't prosecute you. Then he would challenge it in court because it's not clear that the president can pardon himself.

It would be swiftly appealed up to the Supreme Court, I think, but it would. It would It would be a divisive issue, and the people who agree with the president that he didn't do anything wrong would think it's great, and the people who disagree with the president and think that he's a crook would think that it's terrible. And I think there'd be a lot of people in the middle who would say, I don't know what happened, if he's a crook or not. But I don't think that

pardoning yourself is okay. I think, you know, you need to not put yourself above the law. You need to let other people make that decision. And that takes us back to Nixon. I mean, talk about what would have happened if Nixon had pardoned himself. We can only speculate, but we do know what happened after Nixon resigned and shortly thereafter Gerald Ford, who came into office untouched by

the whole Watergate scandal. He had very high approval ratings and he decides he's going to pardon Nixon and immediately very controversial decision. His approval ratings drop most of the data that I've seen suggest it cost him the election in nineteen seventy six. Two years later, he's running for reelection. He are not reelection, but to stay in office for

more years, and he narrowly loses. He it was a close election, and if you look at the data what people thought about that part and that pardon cost him the election. So you can only imagine how much worse it would be if Nixon had done it himself. Ford said, we've got to move on. This is the right thing to do. If Nixon had said that, it wouldn't have been convincing at all. So politically, if the president's still in office, it would be a it would be throwing

a bomb. If he's on his way out of office, it would be controversial, but he wouldn't be president anymore, so it wouldn't It would be tabloid fodder, right, it would be cable news fodder, but it wouldn't. It wouldn't have the same sort of political impact. I think everyone would just wait and see what the courts had to say about it.

bad idea. Wouldn't a lot of people in the anti administration side see that as a smoking gun, more or less indicating some sort of truth to all the problems they had with that administration.

I liked it. It was in the New York Daily News a few weeks ago, where you hear people say this a lot, that a pardon is a declaration of guilt, and that accepting a pardon is an admission of guilt, and so you, yeah, you might. You might have people saying, uh, see, he pardoned himself. That means he's admitting he was guilty.

But that's that's actually not right. That notion that a pardon is an admission of guilt, accepting a pardon is an admission of guilt is taking this one line from this one Supreme Court case out of context and reading it into a completely different one and and really missing

the point. Presidents almost always use pardons to forgive guilty people who may don't deserve the punishment that they got, but they can also Presidents can also use the pardon power to exonerate people, and it's not the most usual use of it, but sometimes they do. President Ford pardon Nixon for giving someone who is guilty. He also pardoned

Tokyo Rose. She had been convicted of making propaganda broadcasts during World War Two, and she was an American citizen living in Japan, and they said, oh, she was broadcasting these terrible things. Turns out sixty minutes does his story. It turns out the case against her was based on perjury and it was totally trumped up. Charges against her and she was completely innocent, and sixty minutes had this big story about it, and President Porziella, this is terrible.

Let's do what we can to pardon her, and he did not because she was guilty. It wasn't a declaration of guilt because she wasn't guilty. And when she accepted the pardon, she wasn't admitting she was guilty. She was accepting it because she wasn't. And Trump himself just pardoned Jack Johnson posthumously, the boxer again, not because he was guilty but should be forgiven, but because he wasn't guilty.

The case against him was bogus. So this notion that he won't do it because it would require him to admit guilt, I think is wrong, and people are missing the potential for a president to put it in the language that I had it in my book, where he says, I'm not guilty, I'm innocent, and these people are coming after me anyway even though I'm innocent. But I have the power to stop that, so I'm going to use that power. That's what he would say, and so any

political reaction would have to reflect that context. If the president was saying I'm guilty, but Hey, it's good to be the king and pardon himself. That would be much more controversal, much more unacceptable, but I think also, as a result, much less likely to happen.

those pardons would be valid. Right when you're the president or when you're the acting president, you pardon someone that that pardon sticks, But you also can be impeached for that, and you can be prosecuted for it too, if it's part of a criminal enterprise. So if if I give the president a million dollars in exchange for pardon and he pardons me, that pardon is valid, but we're both going to go to prison for the bribe. And because

you can only pardon something that's already been done. If the pardon is this criminal, you can't pardon yourself for pardoning yourself, right the last one. They'll always get you for the last one. So yeah, the president could could hand over power to the vice president, the vice president pardons him, hands power back, he returns the favor, or he could resign. That's that's basically what Nixon and Ford did.

Nixon resign, Ford pardon Nixon for didn't need a pardon, So there is no sort of quid pro quo there. If it's part of a corrupt conspiracy, then it would be punished as part of a corrupt conspiracy, even though the pardons themselves would probably stick. I don't think there's any question about that. There are some people who would say that a court would refuse to honor such a pardon, but I based on the case, I don't see that happening.

I think it's also worth mentioning how this would play out if you have a pardon, it doesn't actually mean anything unless someone tries to do something to you that the pardon says they can't. So if you have a pardon and they say, well, I'm going to prosecute you say, well you can't because I have a pardon. Then they try to prosecute you anyway, then the court has to

decide whether the pardon is valid or not. If no one tries to pardon the president, he pardons himself, or the vice president pardens him and no one tries to prosecute him, then we don't know if it's valid or not because it doesn't matter. It's only when he tries to do something that would only be he'd only be able to do if the pardon were valid, that we would find out. There's there's you know, a lot of a lot of things would have to happen before a

president would get prosecuted. It's not just the self pardon being a remote hypothetical, it's it's also the prosecution itself that was remote. So, you know, I love talking about these hypotheticals, but it's it's also hard to imagine the vice president wanting to get his hands dirty in that way. I'm not saying that it would never happen. I'm just saying that the more things you add in that make it unlikely, the more hypothetical it is, the less instructive

it is. It's hard to draw lessons from it.

I'll resign, but only if you promised to pardon me. Ford, if he was if he was answering honestly, he said, well, I was going to pardon you anyway? Why are you saying that? Or or he could say why I which which he actually did say. This is all in in his autobiography, and it's been reported and al Haig's book. Well, Haigu came to Ford before Nixon resigned. Haigu was Nixon's chief of staff and said will you will you commit

to pardoning Nixon? And Ford didn't say yes, and he didn't say no. And when he told his people later, they said, well, you need to be more clear. You're not committing to anything. So he called up hag He said, I'm not committing to anything. But Nixon didn't have any leverage. He was going to get impeached and removed. He was going to have to resign anyway, pardon or no pardon. Did he really want to pardon? Sure? Was Ford going to pardon him anyway? Sure? But was there a deal? I don't think so.

space because he hadn't been mixed up in Watergate. He had the space to do that and not have it look like an inside deal. In the same way, when Bush pardoned the Iran contract defendants, that was controversial for that reason because Bush was one of them. It looked like he was helping them out of a mess that he was in. Two So, yeah, a lot would turn on that is Pence involved in whatever he's partnering him for or not As far as courtesy is concerned, you know,

it's it's a political question. He would he would look at the polls and they would they would survey people and he wouldn't have to decide right away. This all turns on the notion that the president is being prosecuted for something, though, and I think, yeah, that's that's possible that a former president would be pursued by a prosecutor. But without knowing exactly what the case is and exactly what the what the dynamics of it all are, it's hard to say what Pence would or wouldn't do in

that situation. Because if if there's a smoking gun and he looks guilty and it looks bad, then a pardon would look bad. And if it looks like it's some technical thing or some disputable thing, and Pence wants the country to move on and he thinks that he can sell that idea that this is about moving on, then

maybe he would. But he would he would have to look at what happened for it and and realize that unless he has thirty points of approval ratings to the spare, he probably has to be real careful about.

notion is something that translates exactly from the seventies. I mean, he would have to take that seriously, he'd have to look at what the poles say, but it would it would play out in a weirdly different way. The same with impeachment. Nixon didn't go until the Republicans turned on him. The Democrats were in control of Congress. It looked like they were going to drive the impeachment forward, but it wasn't going to be successful until and unless the Republicans

turned against him. Well, that's the same situation now. You don't get two thirds to vote to convict in the Senate unless both parties agree. But you don't have anyone in the middle anymore, and the Republicans have to pay attention to the Republican primary voters. And with that polarization, it's harder to paint a picture where something happens and everyone agrees that it's bad, like it was in the seventies.

And although precedent does exist, Professor cult, I think you make some fascinating, fantastic, and to some degrees disturbing points about the differences between previous decades and the age in

which we live today. Before we conclude today's episode, Professor, we have a question for you that we are certain is on the minds of our fellow audience members here, and that is this, where can where can listeners go to learn more about your work and to learn more about the concept of pardoning or self pardoning specifically, So.

should come right up. I think they've sold out of the hardcovers, but the paperbacks are still available, and the ebook version is still there. If they want to read the original article in the Yell Law Journal nineteen ninety six, again, google my name Calt and pardon me and SSRN. It'll come up there and you can download the original article.

why are you writing about that? And fast forward to twenty eighteen and he has a piece in the Washington Post about out whether the president can part himself.

the concept of self pardoning. You can find Matt Nole and 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.