Presidential Pardon Power

Episode Notes

Transcript

Lawyer 2 Lawyer

Law News and Legal Topics

Presidential Pardon Power

08/18/2017

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Brian C. Kalt: Article II, Section 2, Clause 1 says that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” But other than that, there are no limits explicitly set out in the text itself, so it’s a fairly broad power as Article II powers go.

Robert L. Deitz: We tend to have kind of a common law way of interpreting the Constitution case-by-case and I can certainly imagine a context in which a court might take cognizance and say of a President, you are abusing that power and we are not going to recognize it.

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Bob Ambrogi: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi coming to you from little bit outside of Boston, Massachusetts. I write a blog called LawSites. I also co-host another Legal Talk Network Program called Law Technology Now along with Monica Bay. And when I am not doing all that, I am practicing law.

My co-host J. Craig Williams is not able to be with us today. He is away and will be back on our next show.

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Amidst the special counsel investigation into Trump administration’s possible collusion with Russia, word came out and supported initially by the Washington Post that President Trump had asked his staff to look into his pardon power and that some of the attorneys on his staff were investigating his pardon power. So that’s raised a lot of questions about exactly what the scope is of the President’s pardon power and in particular many are asking or wondering whether the President could in fact pardon himself, should the circumstances call for it.

So today on Lawyer 2 Lawyer we are going to take a look at the presidential pardon power, look at the history and background of the power, what it encompasses and what this might mean as applied to the current state of affairs.

To help us do that today we have two guests who are knowledgeable in this area. First of all, let me welcome to the program Brian C. Kalt. Brian is a Professor of Law and the Harold Norris Faculty Scholar at Michigan State University College of Law. His research focuses on structural constitutional law and juries and he teaches torts and administrative law.

Way back when he was still a law student, he wrote a note for the Yale Law Journal, titled ‘Pardon Me?: The Constitutional Case Against Presidential Self-Pardons’. And more recently he wrote the book, ‘Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies’.

Welcome to Lawyer 2 Lawyer Brian Kalt.

Brian C. Kalt: Thanks for having me.

Bob Ambrogi: Thanks for being with us. Also joining us today is Robert L. Deitz, Professor of Public Policy at the Schar School of Policy and Government at George Mason University.

Bob was a Senior Counselor to the Director of the Central Intelligence Agency from 2006 to 2009. From 1998 to 2006 he was the General Counsel at the National Security Agency, where he represented the NSA in all legal matters. He has also held positions as Acting General Counsel at the National Geospatial-Intelligence Agency and as Acting Deputy General Counsel, Intelligence, at the Department of Defense.

Welcome to Lawyer 2 Lawyer Deitz.

Robert L. Deitz: Thank you. It’s a pleasure to be with you.

Bob Ambrogi: Thanks. Brian, I have to vary a little bit, I am just — I am curious, back in 1996 when you decided to write that note on whether the President could pardon him or herself, Bill Clinton was President at the time. What prompted you to write that back in 1996?

(00:04:56)

Brian C. Kalt: Well, in 1996 the whole Whitewater investigation was still pretty hypothetical. I was just in a criminal procedure class and we were talking about Presidential pardons, not something that you spend a lot of time talking about in crim pro, but I asked the professor. I said, can the President pardon himself and he said, I don’t know, you should look into that. So I did.

And I got my note out of that and convinced myself that the best argument was that he couldn’t pardon himself, but it was an open question then, it’s an open question now. It’s been talked about at the end of Clinton’s term. People talked about at the end of Bush’s, and now they are talking about it again.

So I am glad I thought about it when it was hypothetical and not in the light of a particular case, because then I could figure out what I thought without regard to whether I liked the President or not.

Bob Ambrogi: I want to discuss in more detail the President’s ability to pardon himself, but before we do that, I want to step back and look at the pardon power itself, and Brian, I wanted to ask you if you could set the stage for us by telling us what the Constitution says about pardons.

Brian C. Kalt: Sure. Well, Article II, Section 2, Clause 1 says that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” So by limiting it to offenses against the United States, that’s applying only to federal criminal proceedings, and except in cases of impeachment that separates out impeachment as a congressional political process that is not about criminal law and is beyond the reach of the pardon power. But other than that, there are no limits explicitly set out in the text itself, so it’s a fairly broad power as Article II powers go.

Bob Ambrogi: And why Bob Deitz, do you know, what were the framers thinking? Why did they include this power in the Constitution?

Robert L. Deitz: This was a traditional power of the crown, and I think they just brought it in because of the prior experience. And I agree with everything that Brian has said so far is incredibly terse language, unqualified. Yeah, as you know, we tend to have kind of a common law way of interpreting the Constitution case-by-case and I can certainly imagine a context in which a court might take cognizance and say of a President, you are abusing that power and we are not going to recognize it.

Now, whether that would apply to pardoning himself, I don’t know the answer to that, but that’s a different issue. As you may know in Virginia, I think it was this past year or past two years ago, Governor McAuliffe provided pardons to a kind of a class of people and this was challenged and the Supreme Court of Virginia said, no, you can’t do it that way. Governor McAuliffe then went back to the drawing board and made it more particularized.

So certainly there is — at least in principle there is room for a court to examine exactly how the President uses the pardon power, I think.

Bob Ambrogi: Do you think there have been instances in history where a President has abused the pardon power, Bob?

Robert L. Deitz: No, certainly not that’s been adjudicated, but for example, in the last — I think the last couple of weeks of his presidency, President Clinton pardoned Marc Rich, who was a fugitive from justice living in I think Zug, Switzerland, and Mrs. Rich had made substantial campaign contributions to Mr. Clinton and he pardoned Rich and there was an outcry. I mean I don’t think anybody said that he didn’t have the power to do it, or I may be wrong about that part, but yeah, there was a political outcry and said this was an abuse, but nothing happened.

Bob Ambrogi: So Brian, do you agree with that premise that there could be instances in which a court would step in and say the President has gone too far with this exercise, excepting the question of pardoning him or herself, but could this go too far?

Brian C. Kalt: I think that the federal pardon power is pretty difficult for a court to second-guess in that way. There aren’t any procedural requirements. I think in the Virginia case there were some procedural niceties that needed to be followed. And there is the political question doctrine where courts are reluctant to second-guess the exercise of power like this that is given by the Constitution pretty much exclusively to the President, just like they won’t second-guess an impeachment, it’s up to Congress to figure out what’s impeachable and what’s worth convicting and you can’t appeal that through the court system.

(00:09:47)

I think similarly the courts look at the pardon power as sort of a check on the judicial system and would be reluctant to adjudicate, other than in a case where the President purported to be using his pardon power, but was doing something that wasn’t actually a pardon. So they would police the boundaries of the pardon power, but within the power itself. I think it’s very unlikely that they would overturn it.

If a pardon got into court, it would be something like a version of the Marc Rich case, where there was some evidence of a quid pro quo. In fact, the US Attorney’s Office in New York investigated President Clinton’s pardon and the US Attorney, a fellow by the name of James Comey, eventually cleared Clinton of any wrongdoing there. But if there had been bribery, if they had said this pardon was given in exchange for a bribe, my position is the pardon itself would still be valid, but the bribe, the crime underlying it could be prosecuted. So just because the President has the power to pardon doesn’t mean that he is immune from any sort of consequences if he uses that power corruptly.

Robert L. Deitz: Yeah, I don’t disagree, but I just interject, lawyers love hypotheticals and let me give you a hypothetical to try to make my point. Let’s say a President when he comes into office says, I hereby pardon all federal prisoners, empty out all the federal prisons tomorrow, I am pardoning everybody. I believe a court would look at that.

Brian C. Kalt: Well, that certainly is extreme a case as one could imagine.

Robert L. Deitz: Exactly. Lawyers love extreme examples, right?

Brian C. Kalt: Yeah, but I —

Bob Ambrogi: I mean, there is precedent for the President pardoning a class of people. I mean Jimmy Carter pardoned all the draft dodgers.

Robert L. Deitz: Yes.

Brian C. Kalt: And President Andrew Johnson was very generous with his pardon power as regarded the south after the Civil War and there was some litigation around some of those pardons, but I think the case law that emerged from that was again very skeptical of any intrusion on the President’s power and that the check on the President abusing the pardon power was through the impeachment process. So I think you are right, a court would certainly, if they were going to look at anything, it would be an extreme case like that, but I think at the end of the day they would have to leave it to Congress.

Bob Ambrogi: What is the — where does the pardon power begin? I mean must there have been a charge or a conviction to be pardoned? Must there have been a crime committed for there to be a pardon?

Robert L. Deitz: Well, Nixon disproves that proposition, does it not; he was certainly not convicted.

Bob Ambrogi: In what way?

Brian C. Kalt: And he hadn’t been charged or convicted and Marc Rich hadn’t been convicted and the Carter pardon of the Vietnam era draft evaders, most of them hadn’t been charged or convicted either. So they can be preemptive, but they have to relate back to acts already committed, whether they have been the basis of a charge or a conviction or not is irrelevant, but you can’t pardon something that hasn’t been done yet. But as long as the subject of the pardon is something that’s already been done, it doesn’t have to have been something that the person was charged with, let alone convicted of.

Robert L. Deitz: Agreed, yeah.

Bob Ambrogi: So it can be preemptive but not prospective?

Robert L. Deitz: Yeah, you can’t say I pardon Joe Schmo for anything he has done in the past and anything he does in the future.

Brian C. Kalt: And I think that’s an example of where a court would intervene, because they would say — someone might say, well, it doesn’t say in the Constitution that it has to be retrospective, and what the court would do is they would say, if it’s not retrospective, then it’s not a pardon, it’s a suspension of the law. And so anything that’s a pardon, we will give that deference. We might not even take the case. But if he says it’s a pardon and it’s not actually a pardon, that we will get involved in and say you can’t do that.

Robert L. Deitz: Right, right, I agree with that, yeah.

Bob Ambrogi: Does a pardon constitute or amount to an acknowledgment of guilt? Does there need to be an acknowledgement of guilt?

Robert L. Deitz: Well, to me, that was the most interesting aspect of this whole inquiry by President Trump and his lawyers is that, I always assumed that Mr. Trump was concerned with respect to Russia about things that fell more into the peccadilloes category, perhaps some personal conduct when he was in Russia or perhaps some aspects of business dealings that might be a little iffy.

By looking at the pardon power, that’s by hypothesis is a crime, which means that he and his lawyers must actually be concerned that there is criminal conduct lurking there. And I found that really, really surprising.

(00:15:07)

Brian C. Kalt: My take on this is a little different and I had a piece about this in the Wall Street Journal a couple of weeks ago, because it is true that in almost every case a pardon is based on guilt. In fact, if someone is applying through the usual process or the Department of Justice vets pardons and applications and makes recommendations to the President, you are not allowed to even apply for one until you have been convicted, served your sentence and some time has passed after that.

But even though almost every pardon is based on someone who is guilty being forgiven, and even though there is language, there’s dicta, sort of an aside, in a case called Burdick v. United States from 1915, where taken out of context they say a pardon is based on guilt, accepting the pardon is an admission of guilt.

The pardon power does encompass the ability to exonerate people. It’s almost never used that way, but there would be nothing stopping the President from saying something to the effect that there’s a criminal investigation, but it’s unfair, it’s inappropriate, it’s a runaway prosecutor. The President could say all of these things that they are investigating these people for are illegitimate charges, no one did anything wrong. I have the power to stop that with my pardon power and I am going to use that power.

Now, whether the public viewed the pardon that way, whether they said he is right, these people are innocent, or whether they said, oh well, if they weren’t guilty, they wouldn’t need a pardon, that’s a political question. But as a legal matter, I don’t think that there’s any sort of automatic imputation of guilt based on a pardon being issued or the pardon being accepted, if the President phrases it as an exoneration. And occasionally Presidents and Governors do use it to exonerate people who don’t have any way of getting that exoneration in court.

Robert L. Deitz: I agree with what you say from a legal standpoint; from a political standpoint, nobody would take that seriously in the case we are talking about, the Trump matter.

Brian C. Kalt: Well, I think that he has shown an ability to spin narratives at his base that a significant number of people do accept, that if he was calling the investigation into question, people would — some people would go along with that, but ultimately it would be a political question, it would come down to what people, and particularly people in Congress, who have the power to impeach thought about it.

Robert L. Deitz: Yes.

Bob Ambrogi: Well, I am going to pick that up in just a moment, but I have to take a short break here. We are going to continue our discussion of the Presidential pardon power in just a moment, please stay with us.

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Bob Ambrogi: Welcome back to Lawyer 2 Lawyer. This is Bob Ambrogi and joining us today are Brian Kalt, Professor of Law at Michigan State University College of Law and Bob Deitz, Professor of Public Policy at the Schar School of Policy and Government at George Mason University.

We are talking about presidential pardon power and I want to get to the big question here, that’s been bandied about quite a bit, which is whether the President does have the power to pardon himself should the situation arise? And I want to ask both of you about that, but Brian, let me start with you.

(00:19:57)

Brian C. Kalt: Well, I have argued that the President does not have that power, but I think we have to start from the idea that there really is no way of predicting what a court would do. There are arguments on both sides and I could see there being votes, maybe enough votes for saying that he can. If I were a judge I would not vote that way, but I don’t want to say that this is settled and that he can’t do it because really we don’t know.

The arguments are a lot simpler on the side to say that he can do it, which is, you look at the Constitution, it doesn’t say he can’t. It says he has the power to pardon, it doesn’t say anything about an exception for self-pardons.

The argument on the other side, there’s a historical part of it, which is sort of too much to get into here, but there are two main parts. One is just the general notion, like Bob had referred to before, we read common law notions into the Constitution sometimes, the general notion that you can’t be the judge in your own case. And if you want a pardon, you have to get it from someone else. Just like if you are on trial and you are a judge, someone else is going to preside over that trial, not you, and there’s counter arguments to that, but I think that’s a powerful argument.

And then the other one is just that a pardon just by its definition is inherently bilateral, it’s something you can only give to someone else, and again, that’s not expressed in the text, but as we said before, the idea that you can only pardon retrospectively isn’t written in there either, it’s just inherent in the notion of what a pardon is.

And so I would argue, you look at the Latin root of the verb to pardon, some other words from the same root are donate or condone, it wouldn’t make sense to say that you made a donation to yourself, or that you condoned your own actions. By the same token, saying that you pardoned yourself, that’s not a pardon. It just doesn’t make sense and so it’s just inherently outside the definition of the pardon. If I were a judge, that’s how I would base my ruling that the President cannot, but we don’t know.

Bob Ambrogi: And Bob, what’s your opinion on this, can the President pardon himself?

Robert L. Deitz: Yeah, I agree with everything that Brian has just said. I think that — I guess my sense is that these constitutional questions, again, because of our kind of common law tradition are so factually driven, and I think it might well depend, certainly at the trial court level, on the facts that were adduced to in the case.

I could imagine, I think, I could create some hypotheticals in which a judge would feel almost compel to say, no, you can’t do that.

I think I could create another set of facts where a judge might well say, yeah, that’s okay, but it is — this is like the guarantee for Republican government for the states, it’s just un-adjudicated and who the hell knows.

Bob Ambrogi: Yeah, I know I read that there was a Justice Department opinion to that same effect during the Nixon administration, concluding that the President could not pardon himself, is that right? Did I have that right?

Brian C. Kalt: Yeah, Nixon, when he was at the end of his rope there, asked his own team what his options were and one of the options is, his personal lawyer said you could pardon yourself, that is possible. The Department of Justice at the same time analyzed it, wrote a memo relying mainly on the, can’t be a judge in your own case idea, said that the President could not pardon himself, and of course they would be the ones prosecuting.

And so it’s no surprise that the lawyers on either side came to different conclusions there, but presumably if the President did try to pardon himself and if the prosecutor wanted to pursue him anyway, then and only then would a court have to decide, but those are some pretty big ifs.

Robert L. Deitz: Yeah. If I could just add something to that, in order to challenge a pardon there has to be a case or controversy, and I could well see somebody like Mr. Mueller, if he has what he believes is a strong case, in order to create a case or controversy, would have to indict and an indictment would lay out all the stuff that President Trump doesn’t want laid out. And I can imagine an indictment with enormous detail which, it could well render the whole can I pardon myself question moot because of the possibility of impeachment.

Bob Ambrogi: Can a President be prosecuted while in office?

Brian C. Kalt: So my book ‘Constitutional Cliffhangers’ has six chapters, six different questions; Chapter 2 is can the President pardon himself? Chapter one is can you prosecute a sitting President? The prosecution of a sitting President is an open one as well and certainly prosecutors in the past have been reluctant to pursue a sitting President.

(00:25:07)

Nixon was named an unindicted coconspirator, but if that weren’t the case, and if you if you could prosecute a President while he was in office, then the self-pardon would sort of render that moot. If self-pardons were possible, then presumably any President wouldn’t consent to be prosecuted would be very tempted to use it, but that’s an open question too.

President Clinton also was facing some criminal charges. He negotiated the day before he left office with Special Prosecutor Robert Ray settling all of that, but presumably Ray had something that he was waiting until Clinton left office to pursue.

Bob Ambrogi: Bob, do you have anything to add to that?

Robert L. Deitz: Yeah. I don’t see anything preventing a prosecution of a President, anymore than prosecuting a member of the judiciary or the Senate or House. It would sure as hell be awkward, but the Constitution could live with that. Meaning we have got a Vice President, there’s a constitutional amendment that addresses what will you do if the President in some sense is incapacitated. So I find that actually marginally easier open question than the can you pardon yourself question.

Brian C. Kalt: Well, I would distinguish prosecuting a judge or a member of Congress, and I agree, there are good arguments on both sides and it could go either way, but the President under the Unitary Executive Theory, you look at the first clause of each article of the Constitution, Congress has hundreds of members in it and if one of them is away being prosecuted, they can still function. The judiciary has hundreds of judges in it, but the President himself is the repository of all of the executive power of the country.

So for the executive branch of the federal government to be prosecuting its own head is a little strange. There are some issues with a state purporting to do that as well. And then if the President is being prosecuted and you mentioned the Vice President is there as his understudy, but if the President doesn’t want to hand power over, it’s actually pretty difficult to force him to.

And I think the question is, you look at the Constitution and you say who is in a position to force the President to give up power before his term is over? And I think impeachment sort of shines in the Constitution as the mechanism that we are supposed to use in those situations. And I think that’s why prosecutors have been reluctant to get out in front of Congress. That’s why Ken Starr sent his report to the House rather than trying to indict Clinton himself.

Bob Ambrogi: With regard to the ongoing Russia investigation, were the President to say pardon somebody in his inner circle, how would that affect the Special Counsel investigation and what impact would it have on any congressional investigation separate from the Special Counsel’s investigation?

Robert L. Deitz: Well, the kind of odd thing about President Trump pardoning say you know Junior and Eric and his son-in-law is that at that point they are out of legal jeopardy, which means they no longer have a Fifth Amendment right, which means that then Mr. Mueller can get everything. And in some ways if I were President Trump’s lawyer I would weigh that very carefully. In some respects I think President Trump would just as soon have all these people claim Fifth Amendment privilege.

Bob Ambrogi: Yeah, I guess the same would go for any congressional investigation as well.

Robert L. Deitz: Yeah. I mean I assume and I don’t know this, but I assume that the congressional investigation is coordinating at some level with the Mueller investigation. Remember what happened with Ollie North and I don’t think they want a repeat of that.

Brian C. Kalt: Yeah, I agree that the pardon would make it harder to convict the people being pardoned, but it would make it easier to investigate, and Congress would not have to worry as much about them pleading the Fifth, although they might still be able to plead the Fifth in light of the fact that the pardon could only touch federal criminal charges.

So if they had a plausible argument that there were potential state criminal charges, they might still be able to plead the Fifth, but there’s no way that the pardon power would derail the investigation itself.

(00:29:52)

Well, I think the analogy is to Iran-Contra, you mentioned Ollie North, when President Bush 41 had already lost his reelection bid, but was still in office, it was just before Christmas 1992 and he pardoned everyone facing charges in Iran-Contra, including Caspar Weinberger, whose trial was supposed to start a week-and-a-half from then, and that shut down the investigation.

It didn’t shut it down because there was nothing left to investigate because Bush himself was under investigation, but the prosecutor said there’s no one left to prosecute except Bush and I am not going to prosecute him, so I guess I just have to go home now, and that’s what happened.

So as a practical matter it might take all the air out of the investigation, if there’s no one left to prosecute but the President, it might have that affect.

On the other hand, if the prosecutor really does want to pursue the President, as Bob mentioned, it would make it easier to get testimony against him, assuming that people could be forced to testify. They might just say, well, I can’t plead the Fifth, but I don’t remember anything. There’s not much you can do about that.

Robert L. Deitz: Bear in mind though that given our President’s penchant for identifying fake news and there’s nothing to this, et cetera, et cetera, I would think that human nature and the part of a prosecutor might make him reluctant just to sort of fold his tent as though, yeah, I guess he was right, there was nothing here, and that’s why I lean more toward a prosecutor forcing the issue by bringing a case or controversy, by bringing some sort of an indictment or at least a very full report to the American people, explaining to the best of his understanding what actually happened.

Bob Ambrogi: Well, we are just about at the end of the time for the show. Before we wrap up I would like to give each of you an opportunity to give us your final thoughts on this topic and if you care to let our listeners know how they can follow up with you or find out more about your work, I welcome you to do that as well.

So Bob Deitz, why don’t we start with you?

Robert L. Deitz: Yeah, sure. I find this — I have been in Washington my whole career and I often feel that I have kind of seen everything and then something like this arises in which it’s forcing everybody, not just lawyers, but citizens to think about their country, their Constitution, what it all means and so forth, and in many ways I think that’s healthy. It’s clear that our institutions, to my mind at least, it’s clear that our institutions are holding and I find that positive.

To me what matters most about what’s going to come out in the next number of months in this investigation is what facts are going to come forward. And I think everything that follows from that, whether it’s prosecutions, pardons or impeachment, will depend upon the power of those facts.

I am at George Mason University, they have got a website, I am reachable, my email is there, I am reachable.

Bob Ambrogi: All right, thank you very much. And Brian Kalt, your final thoughts?

Brian C. Kalt: Well, I would like to pick up where Bob left off and agree that the facts are important and in a sense this is a very premature discussion because we don’t know what the investigation is going to come up with. We don’t know how the President is going to react, we don’t know how Congress will react to that, but I do think that it’s an important reminder of the original constitutional design here.

When the framers at the Constitutional Convention were discussing the pardon power, they were very concerned that Presidents would abuse the pardon power. They discussed the prospect of a bunch of coconspirators led by the President committing treason and thought maybe they should limit the pardon power to prevent the President from pardoning people in that situation. And faced with that extreme hypothetical, they decided that it was inappropriate to limit the pardon power, that they needed to give a broad unrestricted power to the President, and that if he did abuse it in that way that the remedy was impeachment.

So when people talk about the Constitution as sort of guaranteeing some good result, oh, we couldn’t do that because that will be terrible, the Constitution can’t allow that because it would be — it would put people above the law, the constitutional design is to remedy that with impeachment, to give the President the power and give Congress the power to punish that.

I would direct people who want to get more into the details to check out Chapter 2 of my book ‘Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies’. It’s available on Amazon. I think they have a few copies left and there’s the Kindle version. I am always happy to reply to emails. I am at Michigan State University and they have a website. You can get all my contact information there.

(00:34:53)

Bob Ambrogi: Well, as of earlier this afternoon they still had a few copies left because I checked that out myself.

So thanks a lot to both of you. We were talking to Brian Kalt, Professor of Law at Michigan State University College of Law and Bob Deitz, Professor of Public Policy at the Schar School of Policy and Government at George Mason University. I really appreciate your thoughts and insights on this topic. Thanks for taking the time to be with us.

Robert L. Deitz: You are very welcome.

Brian C. Kalt: My pleasure.

Bob Ambrogi: And that brings us to the end of another show. Thanks to our Producer Kate Nutting, our Audio Engineer Adam Lockwood, our Executive Producer Laurence Colletti and all the good folks at the Legal Talk Network and thanks to you for listening. Join us next time for another great legal topic.

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