Article II, Section 2, of the Constitution says the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This episode explores presidential pardons past and present—from Thomas Jefferson’s pardons of people convicted under the Sedition Act, through President Gerald Ford pardoning Richard Nixon and George H.W. Bush pardoning those involved in the Iran-Contra scandal, to President Trump’s exercise of the pardon power today. Experts Brian Kalt of Michigan State Law School and Saikrishna Prakash of the University of Virginia Law School answer questions including: Can the president pardon himself? What does the history say? What are the limits of the pardon power? Does someone admit guilt when they accept a pardon? How might the Supreme Court rule on pardons? And more, in conversation with host Jeffrey Rosen.
FULL PODCAST
PARTICIPANTS
Brian Kalt is a Professor of Law and the Harold Norris Faculty Scholar at Michigan State University Law School. He is the author of many works including the article "Presidential Impeachment and Removal: From the Two-Party System to the Two-Reality System," and is the co-author of the National Constitution Center’s Interactive Constitution explainer on the 25th Amendment.
Sai Prakash is James Monroe Distinguished Professor of Law at the University of Virginia. His most recent book is The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers. He is also the co-author of several Interactive Constitution explainers on presidential power.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Brian Kalt, “Pardon Me?: The Constitutional Case Against Presidential Self-Pardons"
- Saikrishna Prakash, The Living Presidency An Originalist Argument against Its Ever-Expanding Powers
- Saikrishna Prakash, "The Vesting Clause" and "Article II, Section 3" explainers, the National Constitution Center's Interactive Constitution
- Burdick v. United States (1915)
This episode was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Lana Ulrich, Ashley Kemper, and Alexandra "Mac" Taylor.
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TRANSCRIPT
This transcript may not be in its final form, accuarcy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people.
Article II, section 2 of the Constitution says that the president shall have the power to grant reprise and pardons for offenses against the United States, except in cases of impeachment. On today's episode, we'll discuss the scope of the pardon power and ask an important question: can the president pardon himself?
I'm joined by two of America's leading experts on the pardon power two great friends of We the People: Brian Kalt is professor of law and Harold Norris faculty scholar at Michigan State University Law School. He's the author of many works including his student note in the Yale Law Journal, Pardon me?: The Constitutional Case Against Presidential Self Pardons. He's also co-author of the Constitution Center's explainer on the 25th Amendment on the interactive constitution. Brian, it is wonderful to have you back on the show.
Brian Kalt: [00:01:14] Great to be here.
Jeffrey Rosen: [00:01:15] And Sai Prakash is James Monroe distinguished professor of law at the University of Virginia. His most recent book, which we discussed on a recent program is, The Living Presidency: An Originalist Argument Against Its Ever Expanding Powers. He is the co-author of several interactive constitution explainers on presidential power. Sai, it's wonderful to have you back on the show.
Sai Prakash: [00:01:37] It's great to be here with you, Jeff, and with Brian.
Jeffrey Rosen: [00:01:40] Let us jump right in Brian, by asking the basic question, how does the pardon power work? And if President Trump were to choose to pardon himself, what would that pardon look like?
Brian Kalt: [00:01:52] Well, the pardon power is I consider it the most regal monarchical of the president's powers. It's pretty simple. He just issues the pardon. He says that he is pardoning: granting the pardon to someone. He doesn't need to rely on congressional authority. There's really no judicial review. If it's a valid pardon it happens right away. He just declares it. The limits are it can only apply to federal offenses. It can't affect impeachment proceedings. Then implicit in the definition of a pardon is that it can only apply to things that have already been done. You can't pardon someone in advance. But other than that, it's just a very expansive power and he states it and it happens.
Jeffrey Rosen: [00:02:46] Would the president have to specify the past crimes than he was pardoning himself for? Or could he say, I pardon myself for all federal crimes I may have committed? Give us a little texture about what the actual document would look like.
Sai Prakash: [00:03:00] So, the president, you know, has signed dozens of pardons and other presidents have as well. And so I think the way that the pardon would read is a full and unconditional pardon for all crimes committed in the past. And I don't, you wouldn't necessarily have to say the word crimes, but the point is you can write language that I think is typically full and unconditional for all offenses that may have been committed. And as Brian put it , it would basically wipe the slate clean for all offenses that have already occurred prior to the issuance of the pardon and as Brian also put it, you can't pardon future activity, so it wouldn't affect whatever he might do going forward.
Jeffrey Rosen: [00:03:42] Okay. Well, let's jump into the substance of this extremely important and quite undecided constitutional question. There are very distinguished thinkers on both sides of this debate and you are among the leaders of both positions. So Brian, take us through the arguments about why you believe that the president cannot under the constitution issue of self pardon? Beginning with the text.
Brian Kalt: [00:04:09] Well, the text is sort of limited in what it tells us. And I think that's the main argument in favor of self pardon ability that it doesn't explicitly say in the constitution that he can't, and it's a very broad power. But I would say that the text also gives us certain other limits implicit in the definition of what a pardon is and what granting a pardon is. So the argument is granting a pardon is inherently bilateral. You can't grant something to yourself. You can't pardon yourself. The word "pardon" comes from the same Latin root as the words "donate" and "condone." You can't donate something to yourself. You can't condone your own actions. It just, it doesn't make sense. And by analogy, we have the notion that we mentioned before that you can't pardon future ac ts. The constitution doesn't say that either, but it is implicit in just the notion of what a pardon is. And so the textual argument would be a self pardon doesn't make any more sense than a self donation. It just doesn't compute.
Jeffrey Rosen: [00:05:23] Sai focusing on the text, what's your response to Brian's suggestion that the word "grant" implies a bilateral act involving two people. And is there anything in the text that you think suggests that there are no limits on presidential pardons?
Sai Prakash: [00:05:39] So I deeply respect Brian and his work, and I think he has written a wonderful student note and has thought about this in very sophisticated ways. I guess what I'd say is I agree with Brian's initial point that the text seemingly doesn't have any limitations on the power to issue a self pardon. And then I'd go from there by saying the reason why the president can't pardon future offenses is because there's something else in English law called the dispensation or a suspension that accomplishes that. And so, in other words, English law distinguished these three species of executive acts and the president and state governors were only given the power to pardon. And some governors were told you can't suspend or dispense the laws. And I think that's implicit in the constitution. So there's external reasons why it doesn't extend to the future, independent of the pardon clause. I guess what I'd say is I don't know the etymology of the word "pardon," but I think everyone understands that the way a word, what a word means can evolve over time. So maybe if you went back a hundred years, people wouldn't speak of you've got to begin by forgiving yourself. Right. But today this is said all the time, right? You've got to forgive yourself if you want to get past this event, right. Whatever you may have done wrong. And so it may very well be that if you look at the Latin roots or whatever the roots are of the word, "forgive," that it's something that you had to do for someone else, but today it no longer means that. And so the question would be in the 18th century, if you're an originalist or a 21st century, you know, living constitutionalist, whether the meaning of that has changed. As for "grant," I don't you know, again, I haven't looked up the etymology of the word, but imagine a statute which said the following : The president will grant patents. Right. Congress has laid out patent terms and the president will grant them. And imagine someone like Benjamin Franklin becoming president. Are we to infer that the statute prohibits Benjamin Franklin from giving himself a patent? I wouldn't read it that way. I don't see why he's uniquely disabled from getting a patent because it uses it, the word "grant." So I guess, you know, I respectfully disagree with Brian about this. But I will say that Brian, as you said, has a lot of good company.
Jeffrey Rosen: [00:07:55] Well, let us now turn to history. In your note, Brian, you make the historical argument examining original intent and the English history that informs it and concludes that the framers did not intend to allow a self pardon. Tell us about that very rich history, including the impeachment of the Earl of Danby, and then the evidence at the constitutional convention that you think supports your conclusion.
Brian Kalt: [00:08:18] So the presidential pardon power derives in large measure from the British Royal pardon power. It has important changes, but we need to look to that as as a important source. One of the most important restrictions on the pardon power came from the case of the Earl of Danby, Thomas Osborn. The King had been making deals with the French . Parliament couldn't go after the King. So they went after the Earl of Danby who was the Lord High Treasurer and tried to impeach him and the King pardon him to preempt the impeachment because he didn't want the impeachment to reveal that he, the King, had been doing these deals. And so parliament in the revolution later passed in the 1701 Act of Settlement, a bar on pardons being used to preempt impeachments. The point being that the King could still do whatever he wanted, but he couldn't subvert the impeachment process and cover up his own misdeeds. That's really the only clue we have from the Royal pardon power because the King couldn't pardon himself because he couldn't be prosecuted in the first place. The King could do no wrong. So when you're translating the British pardon power to the American pardon power, there's really nothing to translate when it comes to self pardons. We're in different territory. So looking at the constitutional convention they strengthened the limit on pardon s in cases of impeachment. They said that they couldn't preempt or undo impeachments. The King just couldn't preempt them, but he could undo them. But they didn't really talk about the pardon power much. And so we have to sort of read the tea leaves here and when we do I think there are two possibilities. Well, there are three possibilities. One of them just to me is not born out by the facts. One possibility is that they thought that the president could pardon himself and didn't say anything about it. The other is that they thought that he couldn't and didn't say anything about it. And the third is that they just didn't think about it at all. And there's really only one tea leaf here to read which is when they were talking about presidents potentially abusing the pardon power, using a Danby like scenario, they said they were talking about, well, maybe we shouldn't let the president pardon treason because what if we have a situation where the traitors are the president's own instruments. He be pardoning his own people for that and maybe we should restrict the pardon power there. And the response was if the president does that then he can be impeached and prosecuted. And then the response was to not approve this restriction for pardoning treason . Right. That argument apparently satisfied people. Looking at that, I would say if you're thinking about a president who's pardoning in that way, pardoning his treason, his cronies , and then saying, "Oh, but that's okay. We could prosecute the president," what you're suggesting is that president wouldn't also pardon himself. It seems to go without saying that he would pardon himself if he could, but that possibility didn't seem to trouble them. So again, either they didn't think of it, which is possible because again, the King couldn't pardon himself. Maybe they didn't think any president would really do something like that, he would have too much honor. Or they just assumed implicitly, "Well, of course you can't pardon yourself. You can't be the judge in your own case. You can't deal something to yourself like that." But what is not possible to me looking at that history is that they thought that the president could pardon himself, but they didn't worry about that and that didn't come up in that debate. So, that limited history to me suggests that they didn't think self pardons were a thing.
Jeffrey Rosen: [00:12:22] Sai, what is your response to Brian's reading of the English history and the founding era history? And just to put some of the passages on the table , two days before the convention Edmund Randolph moved to narrow the president's pardon power on the grounds it was too great a trust. The president himself may be guilty. James Wilson stressed the importance of the pardon power and argued if the president be himself a party to the guilty can be impeached and prosecuted. Michael McConnell in the Washington post reads that to conclude that the framers specifically contemplated and debated the prospect the president might be guilty of an offense and use the pardon power to clear himself. Brian reached the opposite conclusion. What is your reading of that history?
Sai Prakash: [00:13:02] So the first question is what was the Crown's relationship to the pardon power vis-a-vis itself. And Brian describes it as the crown can't pardon itself with the King or the Queen, or the King and Queen in case of William and Mary can't pardon themselves. And of course, I think there's two ways of understanding that. One way is the way Brian does, which is to say since you can't be prosecuted you can't pardon yourself. But of course, another way is to say you wouldn't need to pardon yourself because you can't be prosecuted. Right. Which is not the same thing as saying that you can't pardon yourself. It's just saying that you could say that you could pardon yourself, but why would you because you can't be prosecuted. Right. So there's just no, to my knowledge, and maybe Brian's found something, there's no one in English law that talks about this question and says, of course the Crown can pardon him or herself or the Crown can't pardon him or herself. I think when we get to the United States, I agree with the notion that there are several people talking about the president being prosecuted. And I think Brian has a point when he says, well doesn't that imply that the president can't be pardoned? I don't think it logically means that, but obviously you could imagine someone saying at the time, "Well, what do you mean he can be prosecuted? Can't he just pardon himself at that stage? And doesn't that just sort of end the prosecution?" So I think that, you know, that is, I think, you know, I think that's something that you know, isn't in favor of what Brian is arguing. On the other hand, having said all that , the way I approach it is one of the three ways Brian mentioned, which is to say, when they're thinking about the pardon power, they're not thinking about every single person who can be pardoned and saying can the president pardon this person because the language is very broad. And so they're not thinking about that at all. They're thinking about whether it's a federal offense or not and other limitations on the pardon and how it will interact with other aspects of the constitution. And so, they don't have to think about whether the president can be pardoned or not for the president to be pardonable. Just like they don't have to think about whether Brian can be pardoned for him to be pardoned. Well, I'm not saying Brian has done anything wrong. I'm sure he's a outstanding citizen. My point is that they don't have to think about whether the president can be pardoned if the language covers the president, right? The language is the president can pardon federal offenses. And as I've argued, the president, just like you or me, can commit a federal offense and therefore the president can pardon the offense.
Jeffrey Rosen: [00:15:29] Brian, we've talked about texts. We've talked about the original understanding. Let's now talk about structure. In your note, you argue that the federal government is structured to prevent self-dealing as evidenced by several constitutional provisions and those prohibitions on self dealing and self judging outside of article to support the idea that the president cannot pardon himself?
Brian Kalt: [00:15:52] Yes. I will confess that the structural arguments are I don't think they're decisive. For one thing you can say, well, yeah, they're all of these other provisions, but those are explicit provisions. So the fact that they had to write them in suggests that not writing an explicit one in here, maybe cuts against the idea that the president can pardon himself. But there are others that are implicit, I would say, and if we look at practice and we sort of think about how these things would play out, I think they provide instructive examples. So one example is vice presidential impeachment. The vice-president presides over the Senate , if he's able . The president is impeached then the chief justice presides instead, because it would be a conflict of interest. But any other time, the vice-president presides if he's there or she . And so then the question is, well, what happens if the vice-president is being tried in the Senate in an impeachment trial? Following the constitution, it doesn't say that he can't preside over his own impeachment trial. Taken literally it would suggest that he can . I'm not sure that the Senate would allow that. I think they might say you can't preside over your own trial. Not because the constitution says that explicitly, but because we just read that into the structure. Similarly, members of Congress when they are voting on expelling them , they don't vote on their own cases. They could. The constitution doesn't say they can't. Sometimes the vote is close. They might want to. But they don't. Again, it's not decisive evidence. I think if the vice-president tried to preside over his own impeachment trial, he would have some pretty good arguments as would someone who tried to vote in their own expulsion case in Congress. But I think that just the way that it's structured suggests that , as with everyone else in the criminal process at every other stage, if it's your trial you can't be on the jury. You can't be the prosecutor. You can't be the judge. And you can't be the president pardoning yourself. We just have the constitution structured so that other people judge you . You can get a pardon from the next president as, as Nixon did.
Jeffrey Rosen: [00:18:16] Sai, what are your thoughts about the principle derived from constitutional structure that no person can be judge in his or her own case? That was the principle that the Office of Legal Counsel offered to conclude in 1974 that president Nixon could not pardon himself, although it didn't support it with much argument or reasoning . You've written about the limited powers of the presidency. Brian was saying that those limited powers include the fact that the president can't be judge his own case. What's your response?
Sai Prakash: [00:18:47] Yeah, I think it's, you know, this is a very interesting point and it's not just a sort of a structural claim made in the abstract. I think Brian and others are relying upon a feature of Anglo American law that judges shouldn't be deciding their own cases. And then sort of reading that into the constitution. And there's something to be said for that. You know, I don't think it's always honored. I think judges have decided cases where they have a financial interest involved in the grounds as necessity. There's some sort of claim of necessity as a reason for doing so. I guess when I think about the pardon power, I guess I'd have to ask, is this in fact a judgment of the sort to which that maxim applies? And so let me give you, you know, people are making judgments in politics all the time, right? When legislatures decide to give themselves a salary increase, they are making a judgment, but no one thinks that this maxim applies to that judgment. And so the question is, is the pardon more like the salary decision, which is self-interested, or is it more like this judicial decision. And, you know, the president does not don robes, is not considered a judge when he issues a pardon, is often considering factors that judges should never be considering like politics, right. And all sorts of other things and is also considering their own self-interest whether we like it or not. Right. The presidents are thinking about which pardons will maximize my chance of getting reelected or my spouse's chance of getting elected in certain cases or in this case, you know, my ability to escape prosecution. So I don't know if the maxim applies because I wouldn't have thought that the judge, the president rather is making a judge-like decision in deciding not to pardon. And I don't think most people think of the president as a judge in that context. And so if the president's not to be considered as such, then why are we importing this maxim that seems to me no more applicable than it would be in the context of legislators voting to give themselves a fat raise.
Jeffrey Rosen: [00:20:48] Brian, in your note, you argue that in his role as chief prosecutor, the pardon doesn't correspond exactly with the decision not to prosecute. It's much more extensive and permanent. Therefore the president's position as chief prosecutor doesn't provide structural support for self pardon. So another beat on this.
Brian Kalt: [00:21:07] Yes. The president's role as head of the federal prosecutorial apparatus, if nothing else is the person who can fire the attorney general , dovetails with the pardon power. But yeah, it's not like a decision not to prosecute. It's permanent and that's true of any pardon. So I don't think it's fair to say, well, presidents aren't Kings, they serve limited terms, and so they can't do things that project their power into the future after they've left office. But this is different. It's not just projecting your power. It's sort of taking a spoil of office with you. And so I think it is a little different there. Anything else that the president does can be undone . Pardons can't. And if it's something he's sealing himself, if it's plunder that he's taking with him, I think that's problematic in a way that other pardons aren't. Again, it's a weight on the scale. I don't think that's a slam dunk. Oh, well that means he can't do it, but it does suggest that a self pardon doesn't really sit well with the structure of a limited presidency.
Jeffrey Rosen: [00:22:23] Sai, you have an article called The Chief Prosecutor, which surveys the president's role as constitutional prosecutor of all federal offenses. Tell us about why you think that history supports self pardons, including some details about what other presidents in the early Republic from Washington through Jefferson and beyond did with their prosecution power.
Sai Prakash: [00:22:49] So, thanks for the question. Jeff. The Chief Prosecutor article that you've referenced is a discussion of the question of whether the president has constitutional authority to control prosecutions. And as you know, that was a big question in a case called Morrison versus Olson about the constitutionality of the independent counsel statute. There were a lot of people in the wake of that case who argued that Justice Scalia was wrong to claim that prosecution was an executive function. And so the article just kind of goes back to English history and state history, and then finally early history under the constitution and argues that the prosecution, when done by the government was conceived of as a executive function. And then interestingly it talks about how Washington, Jefferson, and Adams directed federal prosecutors in all sorts of ways, both to start prosecutions and to halt them without the issuance of a pardon. Even though there was no statutory warrant for any of this. So if you read the early statutes of Congress, they don't talk about the president directing prosecutors in any way, but that's what presidents did because I think they believed that they had constitutional power over the prosecution of federal offenses. And so, that's the argument in that paper. Of course one can agree with that argument, but also agree with Brian and not me in this particular debate because the question of whether the president can control prosecution while he or she is president is separate from the question of whether or not the president can pardon himself. Once Donald Trump leaves office he can't control the U S attorneys anymore, or for that matter, the attorney general. And so it'll be up to Joseph Biden and his administration to decide whether to prosecute the president. So I don't really think any of that early history sheds light on this particular question because there was no discussion or contemplation in the early years of prosecuting Washington, Adams or Jefferson. I will say that in the course of writing my first book, Imperial from the Beginning, I did come across a self pardon by a territorial governor. And so there's this governor, Isaac Stevens who issues a pardon to himself. So it says something like I, Isaac, I think it says something like, let it be known that Isaac I. Stevens is hereby pardoned and then it's signed Isaac I. Stevens. So it's an interesting example of the self pardon power. It's not issued until the mid 19th century and it's issued pursuant to a statute of Congress. The statute of Congress gives the territorial governor authority to pardon offenses within the territory. So the governor clearly believes that he can pardon himself or clearly wants to believe it. I don't recall if there was any controversy that ensued, but that's the only example of a self pardon that I'm aware of at the federal level, because that is a federal pardon in effect.
Jeffrey Rosen: [00:25:42] Brian, what is your response to the history Sai mentions. And then let's talk about precedent. We've talked about texts, history, structure. In your Pardon Me piece, you mentioned the Supreme court's most recent case on the pardon power, Schick v Reed, which said that the pardoning power is an enumerated power of the constitution and its limitations, if any, must be found in the constitution itself. What light, if any, has the Supreme court cast on this question of self pardons?
Brian Kalt: [00:26:09] I think the the history is interesting that the territorial governor and I think there've been a couple of mayors as well who've tried to pardon themselves. And ultimately I think when we say, "There are no precedents so we don't know , " even though there might be cases like that where people have attempted to do it, if they haven't been tested in the courts and they were a lower level and less consequential matter it didn't contest it because no one tried to go ahead and prosecute these people anyway, then they don't really resolve it one way or another. But it is interesting. And it does add weight to the, it can be done inside of the ledger. The issue of case law more generally, I think is, is difficult because not only are there no self pardon cases, there aren't a lot of pardon cases. The Supreme court has decided a handful and usually saying something very specific or peripheral about it and we just have to sort of extrapolate as lawyers do extrapolate from these sort of general pronouncements, what to make of what they would do with a self pardon case if it came up. Schick versus Reed says that any limits that you find on the pardon power has to be from the constitution. Somewhere else in the constitution. If it's not in the pardon clause itself, then you need to find it somewhere else. So that's why I look to structure. But again, I don't know that there's really anything definitive in the rest of the constitution either. I think you've got to make your textual argument. Say some structural arguments. Talk about the notion that you can't be the judge in your own case, which isn't in the constitution as such, but when the court rules against self judging, it cites that and when it doesn't the dissent cites that . So, I again, I just don't think that it tells us much at all. And if I could say as an aside, I think it's unfortunate that a lot of the commentary on this, and I know part of this is we don't write our own headlines, but when we write op-eds on these things , th e headline will often be something like, "No. The president cannot pardon himself" or "Yes. The president can pardon himself." and that's usually not what we're arguing. Usually we're talking about what we would say if we were ruling in that case. But I think any honest answer has to be that we don't know what the court would do because there are arguments on both sides.
Jeffrey Rosen: [00:28:48] Thank you for that nuanced and thoughtful answer. Sai. what does Supreme court precedent tell us, if anything, about the possibility of presidential self pardons?
Sai Prakash: [00:28:59] Well, Jeff, I agree with pretty much everything that Brian just said and I would just add the following point. I don't think that the Supreme court would be bound to anything it said that didn't directly discuss this point and the Supreme court hasn't directly discussed this point. That is to say the Supreme court is free to say, "Yeah, there was some language in some opinion that could be read to suggest that the president can pardon himself, but that's wrong. We don't agree that he can pardon himself." and they could decide that way. And so I just don't think that, you know, I think people looking at what the Supreme court said a hundred years ago on the matter without it actually being the matter in dispute is I think a mistake. I think it's understandable that, you know, people treat the Supreme court as if it's the wizard in The Wizard of Oz and trying, or the Oracle at Delphi and trying to sort of make sense of it. But on this particular point, they've never said anything. And so it's really odd to think that we're going to find an answer in some sort of dicta in some opinion from a hundred years ago when the dicta doesn't speak to the question at issue.
Jeffrey Rosen: [00:30:02] Brian, what about the principle that no person, not even the president, is above the law. This is related to the idea that no person could be a judge and his or her own case, but is perhaps an independent principle. Some commentators, including Judge Michael Ludig have argued that it argues against presidential self pardons and that it suffuses the entire Constitution. It's an animating principle that reflected the framers desire not to create another king and therefore to allow self pardons would be to put the president above the law.
Brian Kalt: [00:30:35] I think that it is an important principle, but I'm not sure how strong a weight it represents here, because the question here is what is the law? What is the president's power? In a more practical sense, it's putting him above the law because it's letting him get away with something, but there are other limits that prevent him from getting away with . There's impeachment and removal. There's impeachment, even after leaving office. That's something else I've written about. There's state prosecution. So it doesn't necessarily put him above the law. What I think of most, when I think about that notion from US versus Lee that the famous quote that ," No man in this country is so high that he is above the law." is the Nixon pardon and what Gerald Ford said when he pardoned Nixon. When he wrote about it afterwards he said , "Although I respected the tenant that no man should be above the law, public policy demanded that I put Nixon and Watergate behind us as quickly as possible." So in a sense, any pardon puts that person above the law. It's the president saying, "It's my policy judgment that this person should be placed above the law." And what that exposes about self pardons is just how wrong that sounds if it's a self pardon. So imagine if instead of Ford saying, "Although I respected the tenant that no man should be above the law public policy demanded that I put Nixon behind us." what if Nixon had said that? If Nixon had said, "Well, I respect the rule of law here, but public policy demands that I pardon myself ." That doesn't , it doesn't work. It doesn't work. So I think it's fair to say that the rule of law putting people above the law is a thing we can do under the law. But again, in the structure of just Anglo American criminal justice , the structure of the constitution suggests that if you're going to do that, if you're going to again, have a jury, that's not all just judges, you're going to have a jury, you're going to have a prosecutor, you're going to have a judge , have a president, let someone go free it has to be someone other than themselves. Because otherwise you are allowing not just, it's the combination putting someone above the law and having it be yourself, putting yourself above the law. It just doesn't sit well with that.
Jeffrey Rosen: [00:33:16] Sai, you just heard Brian's interesting gloss. The principle he was arguing for is the president can't put himself above the law. You've written extensively about ways that the original constitution did not put the president above the law from your books to Living Presidency to Imperial from the Beginning. What do you make of the argument that the president cannot put himself above the law and this would violate a basic principle of the constitution?
Sai Prakash: [00:33:41] Yeah. Brian said a number of really interesting things. And I think, you know, imagine a president comes into office and tells a crony, "Don't worry about anything. I've got you covered for the, whatever you've done in the past and the next four or eight years." and then the president at the end of the term gives the person a pardon. That would in one, you know, in some understandings, put the person above the law. It's totally constitutional. Now, is that really, is that person really above the law or are they subject to it? Subject to this pardon I think as Brian put it. So I, you know, I'll leave others to decide that. But he's absolutely right, right. That the, I mean, the president tomorrow could pardon every single person in federal jail and he can pardon every single American for all their prior offenses, whatever they might be. Right. Would that be putting all of us above the law? I mean, it's possible. Right. But I think it just sort of turns on what you mean by putting someone above the law given, as Brian put it, that the constitution itself gives the president his authority. And then let me give you sort of another hypothetical let's suppose that before Barack Obama leaves office, he's really worried that the president is going to prosecute Hillary Clinton and he gives her a pardon. Now, some people will look at this and say, this is totally nefarious. He's protecting Hillary Clinton and the other people will say, no, she's totally innocent and he's just preventing a travesty of justice. Now, many listeners will think the president is a crook and therefore he shouldn't be able to pardon himself because he should be prosecuted, but I can guarantee you, there are lots of people in this country who think he's been persecuted and who will say he's totally innocent and he shouldn't be put through this. We're not a banana Republic where we prosecute our enemies. Or we're not supposed to be. And which the way you look at this we'll turn in part, I think the policy of it, right, forget the constitution. The policy of it will turn on whether you think the president is a crook or not. And we know that a lot of people have differing views on this, but we have to remember this: a pardon isn't only for the guilty. It can be issued prior to trial, and it can be issued for people who are totally innocent. Thomas Jefferson's pardons of people convicted under the Sedition Act were issued because Thomas Jefferson believed they hadn't done anything wrong under our law because the Sedition Act itself was unconstitutional as he understood it. So a pardon power can be used prior to trial, prior to it, you know, prior to conviction and for the people that are as innocent as the driven snow and whether the president is that or not, I'll leave to our fair listeners.
Jeffrey Rosen: [00:36:16] Brian, Sai raises the possibility of the president pardoning himself or others because he believes they're innocent, but being wrongly prosecuted. President Gerald Ford carried in his wallet, a citation to a case called US v. Burdick, which said acceptance of a pardon is an admission of guilt. And that was tremendously important to him. He believed that in accepting a pardon President Nixon had admitted to his guilt. Is Burdick wrong according to what Sai said and could a president accept a self pardon in the belief that he's innocent, but might be wrongly prosecuted? Or if the president pardon himself is he, according to Supreme court precedent and constitutional principles, admitting guilt?
Brian Kalt: [00:37:01] I think Sai is absolutely right and I'm glad he brought it up because this notion from Burdick that a pardon is a declaration of guilt and accepting a pardon is an admission of guilt has a lot of weight. You see a lot of people talking about this. Not just President Ford carrying the scrap of paper in his pocket, but people online saying, and this as Sai mentioned the possibility of Obama pardoning Hillary Clinton. I wrote about that at the time. People were angry at the suggestion pardon for what? She didn't do anything wrong. And I tried in vain in most cases to explain exactly what Sai said. The Burdick case said as a practical matter, most of the time pardons are for guilty people. They're for forgiving guilty people. And as a result, and this was what Burdick was about, as a result, someone might not want to accept a pardon. That's what Burdick was about. But it didn't say that there's any sort of automatic legal effect that a pardon declares guilt, or that accepting one admits guilt. Because as Sai said, pardons can be to exonerate people. To say, this person should not have been charged. This person didn't do anything wrong. And we have lots of examples of that. Throughout history, President Ford pardoned Tokyo Rose, because 60 minutes showed that she had not actually done. It was perjured testimony that had led to a conviction. George H. W. Bush pardoning the Iran Contra defendant said, this is the criminalization of policy differences. They, again saying they haven't done anything wrong. So what guilt is that declaring? In my book , Constitutional Cliffhangers : A Legal Guide for Presidents and Their Enemies, chapter two is about self pardons and it opens with a president pardoning himself. And when he does it, he says, the reason that he's pardoning himself is that he didn't do anything wrong. He says the accusations against him are scurrilous. He's about to leave office and fears that he'll be prosecuted improperly. And, and so he says that he has the power to prevent that. And he does with his pardon. I'm ending this expensive distraction he says. And then of course, the people, as I said, the people who support the president I say they assert, well, of course presidents can pardon themselves and the case needs to be dropped. And the people who don't like the president say, well, of course presidents can't pardon themselves. This needs to be prosecuted. But the idea that a president can't pardon himself without declaring himself guilty of something as a legal matter is wrong. Now, as a practical matter, it would make him look guilty. People would say pardon yourself for what? If he does it in a general way, I pardon myself for everything then he doesn't have to say I'm pardoning myself for tax evasion or I'm pardoning myself for obstruction of justice. But it would still make him in many people's eyes look guiltier than if he didn't pardon himself. And ultimately, I think that's why president Obama didn't pardon Hillary Clinton, because of that imputation of guilt. Not a legal effect, but just a practical one, a perception problem.
Jeffrey Rosen: [00:40:22] Sai, one thing I've learned from this fascinating discussion is this is genuinely an open question and the Supreme court could go either way. You're a distinguished originalist. You've concluded that self pardons are permissible, but we've learned from this discussion that there's a decent originalist case to be made against self pardons as well. Do you imagine that the originalist justices on the court might divide on this question? Is it that open-ended and tell our listeners why you believe that on balance that the originalist case cuts in favor of a self pardon.
Sai Prakash: [00:40:55] Well, to take the last question first, I think the text is open-ended. It covers all federal offenses and it covers all those who can commit them, foreigners and citizens alike. And there's no reason to exclude the president, given the text . The maxim that Brian relies upon and others rely upon about not judging your own case I, again, I would say that it's not obvious to me that a president is judging his case any more than he's judging anybody else's case as a judge, right?He's not doning robes and no one calls him, your honor, when he's making this decision. It's not a judicial function in the way that hearing a case would be. So the text is open-ended. It covers all of the federal offenders and all other federal offenses. And I don't see why the president would be excepted. Having said all that I respect Brian's scholarship and his point of view and his very reasonable articulation of that point of view. So I, again, I would agree with your characterization that this is not a slam dunk situation. At least I don't perceive it as such and others can say what they want to say . In terms of what the Supreme court would do, I think before we get to the Supreme court, we have to go through a series of hypotheticals that I think actually are rather far-fetched. One is that the president actually pardons himself and takes on the burden of saying something that will be read by many as an admission of guilt. That is to say his opponents will immediately seize upon his self pardon and say, aha, you've admitted that you, you know breached the campaign finance laws and that you obstructed justice and that you've cheated on your taxes. And you did any number of host of things. We've got a laundry list of crimes you've committed and you've just admitted to them. Every single one of them. I don't think he's going to do that, to be honest with you, he might pardon his kids, but I don't think he's going to pardon himself, especially if he's thinking of running again. Second thing we'd have to have happened is the Biden administration would have to want to prosecute him. I don't think that's happening because I don't see why they want their administration consumed by a prosecution of Donald Trump. As it is Donald Trump sucks out all the oxygen from the room. I don't know why they want to give him more, you know, why they want to feed more oxygen to this flame. If I were advising president elect Biden, I'd say this is not something you want to do because there's really little to be gained by it. And so it's only after they decide to prosecute him for something that the president then the former president would then say, but your honor, I've got a pardon. You can't prosecute me. And then the issue would be joined, right? And then the district court and potentially a circuit court and the Supreme court would weigh in. But until Donald Trump pardons himself, and until the Biden administration or some subsequent administration prosecutes them, none of this is going to get to court. That is to say if Donald Trump issues a pardon to himself, and there's never a prosecution, there's never a court case and there's never an adjudication. So this is a great topic for us to discuss. And you know, we love talking about it with you. And it's obviously captured the attention of many people. But it's, it's really, I think it's really an improbable event for a number of reasons. At least that that's my sort of understanding of the political situation. Of course, I'm a law professor, not a politician, so I could be completely wrong.
Jeffrey Rosen: [00:44:14] Brian, you wrote the interactive constitution's explainer on the 25th Amendment involving presidential disability in the 1974 memo written by the Office of Legal Counsel under President Nixon. The OLC acknowledged, there could be a loophole if, the memo wrote, under the 25th amendment, the president declared he was temporarily unable to perform the duties of the office, the vice president would become acting president and as such could pardon the president. It says thereafter, the president could either resign or resume the duties of his office. Do you agree with this analysis and could president Trump indeed under the 25th amendment temporarily declare himself unable to perform the duties of the office, have vice president Pence as acting president pardon him and then resume his duties?
Brian Kalt: [00:44:59] I think so . I was not aware of the OLC memo when I wrote my note in the mid nineties , but I had a footnote about the same thing. People said, "Oh, it'd be a functional self pardon." Certainly the president can resign and have his successor pardon him. That's what Nixon and Ford did. The 25th amendment is a little different though because it does seem like subterfuge. I suppose the president could wait until he's getting a colonoscopy or something and as presidents do in those situations say, well, I'm being sedated and I'm handing over power. And then when he wakes up Pence is there saying, "Hey, good news. I did one thing while you were under ". It is subterfuge. I don't think that it would be an invalid use of the 25th amendment just for the simple reason that the 25th amendment assigns the question of whether the president is unable or not to the president. I don't think that's reviewable by a court. I think it would be wrong, but I don't think that it would be invalid . What it might be though , and this is true of a resignation or a 25th amendment section three invocation, what it might be is a crime. Because if the president says to his vice president, I will give you this thing, the presidency or the powers of the presidency, if you agree that you will give me this thing, a pardon , that is flirting with illegal bribery, corruption. And so I think that doing that would expose both of them potentially to a criminal liability or at least investigation. And the vice-president as a result might not want to do this. It doesn't work for the president unless the vice president is willing to do it. I think Nixon thought that he had to deal with Ford. I don't think Ford thought so , but Congress looked into it. Ford had to go testify in front of Congress when that happened. And, again, that was a resignation. So something sketchy or like 25th amendment, I think could open up a can of worms for them that might make it a worth avoiding.
Jeffrey Rosen: [00:47:17] Thank you so much for that. Sai, do you believe that under the 25th Amendment President Trump could temporarily step down, have vice president Pence pardon him as acting president and then resume his duties? And do you agree or not that this could open both up to potential criminal liability?
Sai Prakash: [00:47:36] So I disagree with Brian here. I think you really have to be unable to discharge the office to temporarily step aside. That is to say that no president can say I'm not going to be president for a day, even though I'm perfectly fine. I don't think that's a possibility that the constitution contemplates that they're going to step down from the presidency, even though they're perfectly fine. As for the colonoscopy example, the president has perfect colons and so he's not going to need a colonoscopy any anytime soon, but it's an interesting situation that we're in, because I don't think that the press, this is sort of a, you know, they're treating it as an option to just step down temporarily and I don't think the constitution gives the president any such option. As far as whether, you know, whether it would be legal or not, I think no. The answer is no, whether or not a court would adjudicate it. That is to say, even if a court would say, it's your choice as to whether or not you are able to function as president. I think the answer is that that may be true. The court may not review it. But it doesn't matter. It's still illegal or unconstitutional for a president to engage in this sort of scheme to, you know, to not serve as president while they're perfectly able to do so. And then, you know, you might just, I might just differ with Brian. I'm not, it's not obvious to me that that's not reviewable. That is to say it says the president, you know, whenever the president's not able to discharge the duties of his office, the vice president takes over. I don't think that necessarily implies that that's not reviewable. If there's some question as to who ought to make a decision. So another way of putting it is that the vice-president makes some decision and other people want to contest it on the grounds that the vice-president isn't the president, either in the pardon context or some other context. I think he would be open to them. And I don't know if it'd be at all obvious that the courts would stay their hand because it, I don't think this is, you know, it's not obviously committed to the presidency by law that he gets to decide this question. So on the question of, you know, corruption, et cetera and whether that could lead to a second prosecution, Steve Calabrasi has argued that if the president were ever to pardon himself, he be guilty of obstruction of justice and he could be prosecuted for that and the pardon wouldn't cover that because it would be, you know, the very act of pardoning would itself sort of be this separate crime that I guess he envisions would happen after the act of pardoning. And of course, as the president tried to pardon that, that too would be an act of obstruction. And so there's sort of the claim is that there's sort of no way for the president to effectively isolate himself because whenever he pardons himself, he'll have committed a crime in so doing. It's a clever argument and I don't know if people are making it in print yet. Maybe Steve will. I think one answer to the argument is that you need a corrupt mind when you commit obstruction and the president could say I'm innocent. And so I haven't done anything wrong. I haven't done so for, I have an issue to pardon to myself for corrupt reasons, but it's, I think it's the same sort of argument that Brian is talking about when talking about sort of a corrupt scheme to give the president a pardon. If the president feels like he's innocent, that's going to be his defense to the argument that it's corruption.
Jeffrey Rosen: [00:50:50] Well, it is time for closing arguments in this wonderful discussion. Brian, maybe just a beat about whether you agree with Sai that this is unlikely and could the president pardon himself secretly and could the pardon only emerge if he indeed were prosecuted federally, which Sai says is unlikely. And then if that prosecution were to move forward, give your brief and concise closing argument to the court about why you believe that this suddenly revealed self pardon would be unconstitutional.
Brian Kalt: [00:51:20] I agree with Sai that it is more far-fetched than people seemed to think in talking about this often. I've been writing about this for 25 years now and for the first 21 of those, my biggest task was to convince people that this was worth discussing because they said, well, it could never happen. I said, well, we should talk about it before it happens. Now it seems, I would say more likely than ever. But there are still a lot of barriers to it. There's still a lot of reasons why he'd be better off taking his chances with Biden or with Pence, if he wants to step aside or step down before January 20th. And he himself has talked about it. In 2018, President Trump said, declared that he had the power to pardon himself. So again, I don't think this is, this is just fever dreams of his opponents. I think he himself has brought it up and he's shown a willingness to bust norms and to reveal how much is governed by norms rather than law. But to the extent that it is governed by law, to the extent that it does go to a court to decide whether a self pardon is valid, I would return to the core arguments: one that a grant of a pardon , both of those words grant and pardon means something inherently bilateral and giving it to yourself from Trump, the president to Trump, the person is not what we mean by bilateral. Second that you can't be the judge in your own case, and you're not a judge, Sai's right, you're not a judge when you pardon, but you're also not a judge when you're on a jury. You're also not a judge when you're a prosecutor deciding to prosecute again at every other stage in the process. The decision to let you go free has to be made by someone other than yourself. And I suppose if I were an advocate rather than a scholar, I were trying to win the case rather than just satisfy myself that I was right, I would probably also appeal to the extra constitutional notion, it's not written in the constitution, but just the notion of fairness and rule of law and point out just how offensive the self pardon is to those notions. And again, Sai is right, again, that plenty of people think this is not offensive. What would be offensive would be prosecuting him and he was protecting himself from that. But if I'm in court making the argument, I would throw that in too to fire up the side that believes he's guilty.
Jeffrey Rosen: [00:54:09] Sai, the last word in this fascinating discussion is to you. Please give our great We the People listeners your concise closing arguments for why you believe that a presidential self pardon would be consistent with the constitution.
Sai Prakash: [00:54:24] Well, thanks again, Jeff and Brian, for this wonderful conversation. I guess what I'd say in summation is the constitution grants the president an extraordinarily broad pardon power to cover all federal offenses. And of course the president can commit federal offenses. That's part of the principle that no man is above the law. And so as a textual matter, it seems rather open-ended and implies that I think that the president can pardon everyone under the sun and including himself. And the many interesting structural arguments that Brian relies upon are things to consider. But as I said earlier, I don't believe the president is judging himself when he's granting other people, judging, judging other people when he's granting them a pardon. He's not acting as a judge. No one considers him a judge in that capacity. So the question is why would he be a judge for the sole purpose of giving himself a pardon. As for the point about no man being above the law, I too agree with that. I believe the president can be prosecuted while in office or afterwards. And so there is a tension between this idea that the president can prosecute himself, but also pardon himself, but as Brian points out that tension is there without respect to the self pardon possibly. That is to say, we can say on the one hand that no man is above the law, but also understand that the president has a pardon that can absolve someone of their crimes. And I'm just saying the same thing is true for the president. So I think the text is very broad and I don't find the structural arguments that Brian and others are making convincing, even though I do respect Brian's learning on this matter.
Jeffrey Rosen: [00:55:58] Thank you so much, Brian Kalt and Sai Prakash for a respectful civil and very illuminating discussion of the open-ended question of whether or not the president can pardon himself. Brian, Sai, thank you so much for joining.
Brian Kalt: [00:56:14] Well, thank you.
Sai Prakash: [00:56:15] Thank you guys. This was great fun.
Jeffrey Rosen: [00:56:22] Today's show is engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Mac Taylor, Ashley Kemper, and Lana Ulrich. Thank you so much friends for rating, reviewing, and subscribing to We the People on Apple podcasts. We so appreciate the reviews. Please keep them coming. They help other people to learn about our wonderful work together. And as the holidays approach, please remember that the National Constitution Center is a private, non-profit. We rely on the generosity, passion and engagement of people like you, who are inspired by our nonpartisan mission of constitutional education and debate. It's been so meaningful that many of you have been giving donations of $1 or $5 online at constitutioncenter.org/donate. Our membership, please keep those coming. It is a signal of our shared devotion to the enterprise of constitutional self-education and constitutional education for all. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
