The president has the power to release someone from prison, restore their voting rights, or stop a federal criminal investigation with little more than the wave of a hand. How did the president get this power, and are there any limitations? What would it mean for a president to pardon themselves?
Brian Kalt, constitutional law professor at Michigan State University, helps answer these questions.
Nick Capodice: [00:00:02] So Hannah. We always like to end our episodes with kind of a so what? You know, like an idea to chew on based on everything we've learned over the course of the episode. And I'd like to do things a little differently this time. I want to start this episode with a big existential thought.
Hannah McCarthy: [00:00:25] Any particular reason?
Nick Capodice: [00:00:27] Well, uh, we're talking about presidential pardons this week. What they are, how they work, and whether a president can pardon themselves because as of right now, Donald Trump, who has 44 federal felony charges against him between two federal cases, is running for reelection. So pardons aren't just a legal question. They are a campaign issue. Would I vote for a candidate who, if elected, could potentially shut down a criminal investigation of himself or any of his friends who could use his presidency to supersede his own Justice Department?
Hannah McCarthy: [00:01:05] Or they might not really be wondering that at all, because selecting a candidate at the polls these days is a nuanced thing. But, I mean, I personally am on the edge of my seat in this era of testing the system. So go on.
Nick Capodice: [00:01:21] Okay, so yes, this is a topic that is extremely relevant to one particular presidential candidate right now at a very divisive time in our history. But, Hannah, I'd argue we would be doing our listeners a disservice if we limited our conversation to just that one person, because it has consequences well beyond one party or one election.
Brian Kalt: [00:01:44] I think it's important to distinguish between what presidents can do and what presidents should do. It's the same constitution, whether you like the president or not. The president's powers are supposed to be the same.
Nick Capodice: [00:01:58] This is Brian Kalt, constitutional law professor at Michigan State University College of Law. He studies the presidency and has written numerous legal papers on pardons and impeachment.
Brian Kalt: [00:02:07] If you really think that the president can do this, would you be okay with a president you don't like doing this? Would you still think that the president can do this? And if you think that the president can't do this because you don't like the president, well, what if it was a president you did like?
Nick Capodice: [00:02:26] So with that, this is Civics 101. I'm Nick Capodice.
Hannah McCarthy: [00:02:30] I'm Hannah McCarthy.
Nick Capodice: [00:02:31] Today we are talking about the power a president has to reduce or even eliminate punishment for federal crimes.
Archival - Trump: [00:02:38] I said the last thing I'd ever do is give myself a pardon. I could have given myself a pardon. Don't ask me about what I would do. I could have the last day I could have.
Hannah McCarthy: [00:02:47] Does the Constitution mention pardons? Specifically?
Brian Kalt: [00:02:52] The president, in Article 2 of the Constitution, is given the power to grant pardons and reprieves for offenses against the United States. So basically what that means is if someone is facing or might face some sort of consequences under federal criminal law, the president can make those go away.
Hannah McCarthy: [00:03:13] What does Brian mean when he says that the president could make consequences go away?
Nick Capodice: [00:03:19] Well, there's a terme for this: clemency, which means leniency, basically reducing or eliminating the legal consequences of a crime. Now, if the president grants a full pardon, they wipe away all legal punishment for a federal crime, like prison time, fines, or restrictions on civil rights. A president could also reduce the punishment, you know, allow someone convicted of a felony the right to vote, shorten the length of their prison sentence, things like that. And I should add, pardons cannot be granted for civil liability.
Hannah McCarthy: [00:03:53] Civil liability? Like if someone sued for damages.
Nick Capodice: [00:03:56] Yeah, exactly.
Hannah McCarthy: [00:03:58] Is accepting a pardon admitting guilt?
Nick Capodice: [00:04:01] Brian says that this is a common misconception.
Brian Kalt: [00:04:07] The classic version of a pardon is that it is forgiving something, taking something that someone has done and saying, well, you know, you don't deserve all that much punishment for it. Let's reduce or eliminate that. But it can also be used and has also been used not to declare people guilty of things, but worthy of forgiveness, but instead to exonerate them and to say that they never should have been convicted in the first place. There's a common notion that a pardon is a declaration of guilt, that accepting a pardon is an admission of guilt 99% of the time. Pardons are for forgiving guilty people, but there is that other 1%, and there is no automatic legal requirement that when you pardon someone, you're declaring them guilty, or when you accept a pardon that you're admitting that you're guilty.
Hannah McCarthy: [00:04:58] All right. Can the president pardon anyone at all for any kind of crime?
Nick Capodice: [00:05:03] Uh, we'll get to the anyone part in just a bit, because that has been an open question for many, many years. But in terms of the types of crimes, no, there are definitely restrictions. First, the president can only pardon someone for a federal crime, not charges or convictions in state or county courts. So you'll note that earlier when we referenced the two federal cases against Donald Trump, we did not mention his other criminal cases in New York and Georgia because those are state crimes. Now, it varies from state to state, but usually pardons for state crimes can only be made by the governor of a state or a pardoning board. And the second thing.
Brian Kalt: [00:05:44] Second, they're only for crimes. So that excludes civil liability. But it also excludes impeachment. And the Constitution makes this clear. It says, except in cases of impeachment. And that that doesn't mean that, as some people took it during the Trump impeachment, that if you're being impeached for something, then you can't be pardoned for the underlying criminal charges. It just means that the impeachment process is separate from the criminal process, and pardons only apply to the criminal process. So president can't stop or undo the impeachment process.
Hannah McCarthy: [00:06:21] Okay, I've been assuming that a pardon is something that only happens after a conviction, but Brian just said that a pardon cannot stop an impeachment. So just wondering, could a pardon stop a criminal trial before it has finished?
Nick Capodice: [00:06:40] Oh, it certainly could. And it could do more than that.
Brian Kalt: [00:06:43] The president doesn't need to wait until someone has been convicted to issue a pardon. He doesn't even have to wait until they've been charged. Most famously, President Ford pardoned President Nixon for anything he might have done while he was in office. And Nixon hadn't been charged with anything, let alone convicted.
Archival - Ford: [00:07:03] Have granted, and by these presents do grant a full, free and absolute pardon onto Richard Nixon for all offenses against the United States, which he, Richard Nixon, has committed or may have committed or taken part in during the period from July 20th, 1969 through August 9th. 1970.
Hannah McCarthy: [00:07:37] So in that instance, President Nixon was going to be impeached. He then resigned when it was made apparent that the Senate had the votes to potentially remove him. But the Justice Department could still have charged him with federal crimes. And then President Ford came in and granted Nixon a pardon for any crimes he may or may not have committed during the Watergate scandal.
Nick Capodice: [00:08:01] Yeah, and that ended any momentum for a Justice Department investigation. But even though this pardon ended any future convictions, it was for crimes that had theoretically already been committed. A president cannot pardon someone for something that they haven't done yet, like a crime that someone might commit tomorrow or next year.
Brian Kalt: [00:08:23] A pardon has to be for something that you've already done. You can't pardon someone in advance that's not specified in the Constitution, but it's sort of inherent in the definition of what a pardon is. That wouldn't be a pardon. It would be a suspension of the law right in advance.
Hannah McCarthy: [00:08:41] Right. Makes sense. You can't pardon someone for something they haven't done yet. Just like you can't convict someone for something they haven't done yet because we don't live in the Minority Report universe. Listen to our episode on the algorithm for more on that. But what does that have to do with whether or not a president can pardon themselves?
Nick Capodice: [00:09:00] Well, think about other circumstances where you can't hold yourself legally accountable.
Brian Kalt: [00:09:06] You can't be, uh, the judge in your own case. You can't be on your own jury. You can't be your own prosecutor.
Nick Capodice: [00:09:12] So following that logic, people have made the argument that a president cannot be their own partner.
Hannah McCarthy: [00:09:20] Yeah, okay, I get that.
Brian Kalt: [00:09:21] But even looking at the Constitution itself, looking at the text of it, you could say it's inherent in the definition of a pardon, that it's a bilateral thing. It's something you give to someone else. You can't pardon yourself. It doesn't make sense. Uh, you know, just to take a silly example, right? You, uh, burp. Uh, there's no one else around. You say. Pardon me, you don't pardon yourself for lack of anyone else to do it. Uh, you're asking someone else to do it. That's what a pardon is. You can't condone your own actions. It doesn't make sense. So the argument would go. You can't pardon yourself. It doesn't make sense.
Nick Capodice: [00:09:55] But on the other hand, there is what's not written in the Constitution.
Brian Kalt: [00:10:02] The argument that he can pardon himself is that, well, it doesn't say that he can't.
Hannah McCarthy: [00:10:07] So the Constitution does say that a president cannot use a pardon for an impeachment and can only pardon for federal crimes.
Nick Capodice: [00:10:16] Yeah, it actually says this. I'll read the quote. He shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment, end quote. And this is where the line is. There is not a clear restriction that says a president cannot pardon themselves. But if we look at this specific power as a matter of justice, based on what every other person can't do when they're charged with a crime, like be their own judge and jury, a self pardon just doesn't make a ton of sense. However, I will add, the president can do things in office that nobody else in the country can when it comes to policy.
Brian Kalt: [00:10:55] There's a long standing debate about whether a pardon is just an act of mercy, or whether it's a policy decision, because if it's an act of mercy, uh, then that has very different implications for, um, things. Well, things like self pardons, uh, if you want mercy, you need to get it from someone else. Uh, if it's a policy decision. Okay. Well, maybe the president can do that because it's like so many other things. It's up to him. He makes policy decisions. This is one of them.
Nick Capodice: [00:11:27] By the way, Brian wrote a whole paper about this all the way back in the 1990s.
Hannah McCarthy: [00:11:32] So he was thinking about this long before Donald Trump became President Trump.
Nick Capodice: [00:11:37] Way before.
Brian Kalt: [00:11:39] I was in my criminal procedure class, and we were talking about presidential pardons, which are not a big part of criminal procedure at all. I would venture to guess that my professor was unusual for even talking about them at all. Other stuff that I wrote about around the same time was, can you impeach someone after they've left office? Right. I wrote about that. That ended up happening. Can you prosecute a sitting president? And, you know, it's just sort of testing the margins. And I think what's interesting to me about these things is not just the thing itself, like, oh, if a president pardoned himself, that would be kind of interesting. Well, yeah, it would be. But by examining this, it forces us to come up with a deeper understanding of what the whole pardon power is all about.
Hannah McCarthy: [00:12:21] All right. Pause. So Brian was testing the margins in the 90s, as he says, but those margins are now very much becoming a reality. I'm just curious. Let's just get to the fundamental question here. How did this all come to be, this presidential pardon thing? Why does it exist? And honestly, Nick, will understanding that get us any closer to figuring out what it means if a president chooses to absolve themselves of criminal responsibility?
Nick Capodice: [00:12:51] Well, I'll tell you about that right after this quick break.
Hannah McCarthy: [00:12:57] But before the break, just a reminder that we are public radio. Public radio is sustained by and the property of the public. That's you. What keeps us going is contributions from our listeners. If you believe in us, if you like what we do, if you want us to keep the lights on, consider making a contribution at Civics101podcast.org. It's quick, it's easy, and there is civics swag to be had. All right, that's it.
Nick Capodice: [00:13:27] We're back. And, Hannah, you just asked me why we have a presidential pardon in the first place. All right, here is Brian Kalt again.
Brian Kalt: [00:13:36] There's two questions there. One is why give anyone that power? And then if we're giving anyone that power, why the president. So the idea of giving someone that power is based on the idea that the criminal justice system doesn't always get it right. If we're going to administer it effectively, efficiently, we need to have some clear, easy to apply rules. The problem with clear, easy to apply rules is they don't give you that nuance. They over punish people. And so we need a safety valve. We need to temper the efficiency of the system with some sort of case by case sensitivity to justice.
Hannah McCarthy: [00:14:15] And to do that we give that ability to the most powerful person in the country...
Brian Kalt: [00:14:21] Why give it to the president? Well, um, the president is politically accountable. He's the only nationally politically accountable official there is, and he's one person. So one thing that they talked about during the ratification process was, what if there is a big rebellion, and the way to shut down the rebellion is to say, look, we know that you're unhappy about these things, but we want you to put down your arms. If you do, we'll pardon you. So it gives the president the ability to use that as a as a negotiating tool. They thought about shutting down rebellions as an important thing. And in fact, the very first pardons issued were by George Washington pardoning the participants in the Whiskey Rebellion.
Hannah McCarthy: [00:15:11] Oh, I know the Whiskey Rebellion. This was a massive, violent protest in the 1790s where a bunch of distillers refused to pay a new tax on alcohol and in one instance, attacked the home of a tax inspector. Yeah.
Nick Capodice: [00:15:24] And President Washington was praised for how he handled it without causing too much bloodshed. So he called in the federal troops to quell the rebellion. But then he also ended up giving a blanket pardon to a bunch of the people involved. And after the two leaders were convicted of treason, he pardoned them, too.
Hannah McCarthy: [00:15:43] So the president can use their pardoning power as leverage. And in the case of George Washington, it was for the sake of protecting this, you know, brand new democracy the framers had created.
Nick Capodice: [00:15:54] Theoretically. Yeah. That's like a really nice, clear, simple example that you might find in your history textbook. Rebellion threatens our country. Stop the rebellion and minimize the repercussions of that rebellion. But the vast majority of pardons throughout presidential history have not been as consequential.
Brian Kalt: [00:16:13] The pardon power for most of the history of the presidency was not overly controversial. Uh, not used all that much. It was run of the mill, you know, people just approaching the president saying, well, I'd love to have a pardon. He's the one who can do it. Uh, at a certain point, it became annoying for presidents to have all these people coming in and asking for them. So they farmed it out to the Department of Justice, which now has the office of the Pardon Attorney.
Nick Capodice: [00:16:41] Real quick, the Pardon Attorney is an office in the Justice Department that basically reads through all the pardon requests and makes recommendations for the president, but the president is the only one who can make the final decisions and do the actual pardoning.
Brian Kalt: [00:16:56] And so most pardons, 99% of the time, it's someone that no one's ever heard of. They go through the office of the pardon attorney. They have a set of criteria that are pretty strict. It's for people who have already served their sentence. They show remorse. They're deserving in some way. That is 99%. But the ones that get 99% of the publicity are the ones that don't go through that process, because that's just for the president's convenience. He can still pardon whoever he wants, and he doesn't have to follow those criteria, those limitations. So some of the more important ones were after the Civil War, there was a lot of clemency granted to former Confederates. We had the Vietnam era draft evader, amnesty presidents Ford and Carter did a lot with that.
Archival - Ford: [00:17:47] I announced my intention to give these young people a chance to earn their return to the mainstream of American society so that they can, if they choose, contribute, even though belatedly.
Brian Kalt: [00:18:02] More recently, we've had the controversial ones with George H.W. Bush pardoning the Iran-Contra defendants. We had Bill Clinton pardoning Marc Rich, his own brother.
Archival Congressional Hearing: [00:18:14] A few weeks ago, on his last day in office, President Clinton pardoned 140 people. Some of these pardons were probably meritorious. Others.
Nick Capodice: [00:18:25] We think we're not. President Obama granted clemency to over 1900 people, which was more than triple his predecessors, going all the way back to the 1980s.
Brian Kalt: [00:18:36] He did use it pretty aggressively to reduce the sentences for people convicted of drug crimes, for which, going forward, we had said, oh, these sentences are too high, let's reduce them. And so he sort of went back and did that retroactively.
Archival - Obama: [00:18:50] But I believe that at its heart, America is a nation of second chances, and I believe these folks deserve their second chance.
Nick Capodice: [00:19:02] And then there is Donald Trump. He granted clemency 237 times while in office. And he went about it a bit differently.
Brian Kalt: [00:19:10] There's a long tradition of questionable cronyism and the pardon process, but President Trump definitely used his power to go outside the office of the pardon attorney process to just sort of grant it at his own whim.
Archival - News Coverage: [00:19:28] President Trump is hardly the first to make a controversial pardon, but the number of high profile names who have ties to the president's inner circle, and who have made some pretty big donations to his campaign, is raising eyebrows here this morning.
Nick Capodice: [00:19:40] The president doesn't need to consult the pardon attorney, but most people who apply for pardons submit an application through that office. Trump was unique because he often pardoned people who appealed directly to him, and the majority of those people were his friends and political allies, including some folks who were convicted of crimes that had to do directly with their work for him.
Archival - News Coverage: [00:20:02] Let's tick through these Paul Manafort and Roger Stone, they were indicted by special counsel Robert Mueller, went to trial, convicted by juries of multiple crimes. Investigators say Manafort broke the cooperation agreement by lying to them. Roger Stone never cooperated after lying to Congress to protect the president and has never shown remorse. So now both men are being rewarded by the president for their loyalty.
Brian Kalt: [00:20:26] The president I think in a way, the president is not supposed to be like a king under our system, but the pardon power is the lowest kingly of the president's powers. Kings had the power to pardon. Presidents are limited in other ways, but when they're exercising the pardon power, it's really the most monarchical. So think about all the things that presidents try to do. They want legislation passed. Well, Congress has to pass it. They can only sign off on that. They can propose things, but they can't pass it on their own. They can nominate people to office, but the Senate has to sign off on that. They can negotiate treaties. The Senate has to sign off on that, too. Even things that they can do through purely executive action, they require members of the executive branch to implement those for them. So you can declare that you're going to build a wall using your just executive authority, but you can't just snap your fingers and make that happen. The pardon power is an exception to that. The pardon power doesn't go through. Congress doesn't require Senate confirmation. There's no judicial review, really. So someone's not going to be able to sue the president, say, oh, well, you you shouldn't have granted this pardon. No, he he gets the last word. Basically he does just snap his fingers and then that person walks out of prison.
Hannah McCarthy: [00:21:53] Don't a lot of these pardons happen right before a president leaves office?
Nick Capodice: [00:21:57] They do. Indeed. Some of the most controversial pardons in history came during the lame duck period, which is that sort of awkward period of time after a successor has been chosen. But the president hasn't left office yet. For example, when George H.W. Bush pardoned the Reagan administration officials who were charged in the Iran-Contra affair, and when Bill Clinton pardoned heiress turned bank robber Patty Hearst, and then when Bill Clinton pardoned his own brother, Roger Clinton, for drug charges, he'd already served a sentence for a decade earlier.
Hannah McCarthy: [00:22:28] And they're doing this during the lame duck period, basically because they're not worried about reelection.
Nick Capodice: [00:22:33] Yeah. Which is interesting because elections are a check on the pardoning power. But when a president is set to leave office, that check doesn't really exist.
Brian Kalt: [00:22:43] So the voters are the ones who, at the end of the day, are holding the president accountable, even if the president himself is not up for reelection, there's the possibility of punishing his chosen successor or his party president. Ford, when he pardoned President Nixon, probably lost the election in 1976 because of it. And that's the way it's supposed to be. That's the voters holding the president accountable. They didn't think he should have pardoned Nixon, so they threw him out of office.
Archival - Ford: [00:23:16] Finally, I feel that Richard Nixon and his loved ones have suffered enough and will continue to suffer no matter what I do, no matter what we, as a great and good nation can do together to make his goal of peace come true.
Hannah McCarthy: [00:23:41] Are there other layers of accountability like impeachment?
Nick Capodice: [00:23:45] Yeah, and a president cannot pardon an impeachment. However.
Brian Kalt: [00:23:51] The main check on it impeachment as we've seen, isn't really realistic. It's hard to get 67 votes when we're in a political situation where the parties are so polarized and they don't agree on anything, and anything that unites, one party is going to unite the other party on the other side.
Nick Capodice: [00:24:11] Of course, there is also the option of a constitutional amendment which, given that it requires two thirds of either Congress or the states to even propose an amendment and then ratification by three quarters of the states is pretty darn unlikely.
Hannah McCarthy: [00:24:24] What about the courts? Could the Supreme Court rule that a pardon is a violation of the Constitution?
Nick Capodice: [00:24:30] Honestly, there isn't any real precedent for that. The Supreme Court has also said that someone pardoned for a federal crime could also be charged in state court, and that a person has the right to refuse a pardon. But so far, Scotus has not commented on whether a president can pardon themselves.
Hannah McCarthy: [00:24:49] Does that mean that we're just back to the voters.
Brian Kalt: [00:24:52] In an odd sort of way, President Trump campaigning on the idea that he will pardon the January 6th convicts and defendants, that he would pardon himself if he wins the election. That is basically the voters saying, yeah, you know, we're okay with that. So you can argue about the wisdom or the legitimacy or the deservingness of these folks. For parties, you can say maybe doesn't have the power to pardon himself, but he definitely could pardon all those other people. And if the voters approve it, that is legitimizing it in a way that pardons on your last day on your way out of office aren't. So it's it's kind of in a weird way more appropriate.
Hannah McCarthy: [00:25:39] It seems like Brian is kind of saying that when it comes to pardoning power, it really is up to voters to decide whether they think a president has the right to pardon someone. It's a political question rather than a legal one, at least as of right now.
Nick Capodice: [00:25:59] Yeah. And Brian is a constitutional scholar. He deals in legal interpretation. And he made a point to separate the legal interpretation from the political one, even when it comes to his own opinions.
Brian Kalt: [00:26:13] So thinking about presidents pardoning criminals who were convicted of basically supporting them too aggressively as a policy matter, I have a problem with that. I don't personally support pardoning duly convicted January 6th defendants, but I don't deny that the president has the power to do that. I wouldn't say that the pardons are invalid. I would say that it's a political question and people should respond politically to that.
Nick Capodice: [00:26:47] And on that note, I do want to take a second to talk about precedent. Whatever future presidents decide to do with their pardoning power will inform what subsequent future presidents do. Which brings us back to the first thing Brian said at the beginning of the show. Do you think the president should be able to pardon themselves, if you like that precedent? And is the answer the same if you don't?
Hannah McCarthy: [00:27:26] This episode was produced by Christina Phillips with help from me, Hannah McCarthy. Nick Capodice is my co-host and Rebecca Lavoie is our executive producer. Music in this episode by Chris Zabriskie. El Flaco Collective Ooh-ah. Ceza, Danial. Fadel, Matt large, rambutan, Zoro, Spring Gang, Volante, Mind Me, Hara, Noda and Apollo. You can get more at Civics 101. Yes it's true, we've got a website civics101podcast.org. And there you can find all of the rest of our episodes, transcripts, links to stuff, a means to contact us, and the place to sign up for our truly delightful newsletter. That's Civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.