President Trump has reportedly asked advisers about the scope of his presidential pardoning powers, specifically whether he can pardon his top aides, family members and himself, according to the Washington Post.
Trump declared Saturday on Twitter that the U.S. president holds “the complete power to pardon,” so the issue is on his mind. But when Trump’s lawyer Jay Sekulow was asked about the tweet on ABC’s “This Week,” he said that he had not discussed pardons with the president.
“We’re not researching the issue, because the issue of pardons is not on the table,” Sekulow said. “There’s nothing to pardon from.”
Trump’s recent foray into exploring the scope of a president’s power to pardon has touched off debates among constitutional law experts over whether the commander in chief can pardon himself. Some say he can because it’s not explicitly prohibited in the Constitution. Others cite a 1974 Department of Justice memo (written as the Watergate investigation was closing in on President Richard Nixon), which held that “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”
But Michigan State University law professor Brian Kalt, an expert on constitutional law who has been writing for the past 20 years on presidential pardons, says the question is very much open. In an interview with Yahoo News, Kalt explains the power to pardon, historical precedents and how a pardon could affect independent counsel Robert Mueller’s investigation into the Trump campaign’s ties to Russia.
Yahoo: What is a presidential pardon?
Brian Kalt: The Constitution [Article II, Section 2] says the president has the power to target offenses against the U.S. … In cases of federal crime, the president has the power to preempt or undo some part of federal prosecution.
If you’re convicted of a crime … you’re sentenced to some sentence and maybe for the rest of your life you’re restricted in certain ways. You can’t vote, or you can’t have a gun, something like that. Nine times out of 10, a presidential pardon is someone in that situation saying, “You know, I committed a crime but it was a long time ago, and I’ve done good things since then. Do you think you could forgive me for this and restore my civil rights?” That’s typically how [a pardon] works, and it goes to Department of Justice and the president doesn’t really see it. [The DOJ] processes it for him and he just signs off on it.
But the president could also use that power to prevent someone from staying in prison. So someone’s in the middle of being imprisoned; the president could commute the sentence and get him out.
The president can, earlier in the process, stop a prosecution. The president can pardon someone before they’ve been charged, [before] they’ve been convicted, and that would prevent the prosecution from even happening. … It’s preempting or undoing some part of federal prosecution.
Can the president pardon himself?
I’ve been writing about this for 20 years, and it just amuses me any time I see commentary, people saying, “Well, of course he can,” or “Well, of course he can’t.”
The answer is we don’t know.
Any court that took this question, it would be appealed up to the Supreme Court, and they could do whatever they want. … I favor the argument that he can’t. But there are good arguments on both sides. It could go either way.
The basic argument on the side that says he can do it is, look at the Constitution and it doesn’t say he can’t. It says he can pardon federal crimes. It says in another clause he can’t pardon an impeachment away; he can’t stop or undo an impeachment. … Those are the only limits.
There are two main arguments pushing back at that. One, a pardon has to be a pardon. So there are certain limits just inherent in the fact that it’s something we call the pardon. You can’t pardon someone for a future act. … If the president said, “I’m pardoning you for what you’re going to do next Tuesday,” it wouldn’t be valid; the court wouldn’t respect it. Even though the Constitution doesn’t specifically say that that’s not OK. … For [the argument against] self-pardons, it would be it’s inherent that it’s something you give to someone else and it has to be bilateral in that way, like a donation. … You can’t donate something to yourself. The other main argument is this old legal principle that you can’t be the judge of your own case, and you’ve got to hand it over to someone else to decide.
Has a president tried to pardon himself before?
No. That’s why we don’t know, because it’s never been tested. The closest we came was Nixon [with Watergate]. He asked his lawyer [J. Fred Buzhardt], “What are my options?” His lawyer said, “You could quit, [or] you could pardon yourself and then quit.”
But the Department of Justice, who would have been prosecuting [Nixon] presumably after he left office … analyzed it and said they could prosecute him after he left office even if he pardoned himself, that [it] wouldn’t be valid if he pardoned himself.
Can he be prosecuted while in office?
The Constitution doesn’t say you can’t. So people say, “If there was something that said presidents are immune while in office, then great, but [the Constitution] doesn’t, so let’s prosecute him.” Other people say it’s kind of weird — he’s head of executive branch and the executive branch would be prosecuting him, so he could fire the special counsel or whoever’s prosecuting him.
When Nixon was being investigated under the Watergate investigation, [the grand jury] indicted a lot of people, but they didn’t indict him. They didn’t know if they could do it and they didn’t want to press their luck. … President [Bill] Clinton was in a similar situation. It looked like [the DOJ was] waiting for him to leave office to prosecute him, and they cut a deal the day before he left office and settled that case.
Can the president pardon his aides and/or family members?
It seems like he has much more leeway to do that. … President Clinton pardoned his own [half] brother [Roger Clinton, who was arrested and imprisoned on drug charges]. That was controversial because people thought that was unseemly, but no one thought he couldn’t do that just because it was his half-brother.
There are limits on the pardon power besides whether the pardon is valid or not. One of them is political. [T]he president needs … political support, and doing something like pardoning your family members or pardoning yourself would damage you politically in most cases. … On the other side, there’s the possibility it’s a crime. Just because you could pardon people and the pardon could stick doesn’t mean if [the pardon is] corrupt that they couldn’t prosecute you. If I gave the president $1 million to pardon me, the pardon would stick, but that’s a bribe, and [DOJ] would prosecute. If [the president is] doing it in a way that’s corrupt, that’s obstructing justice.
One important point that I think gets missed a lot: People talk about the pardon power [believing] pardons are for guilty people. [They think] if you accept a pardon you’re admitting you’re guilty. Ninety-nine percent of the time that’s what a pardon is. … But pardons are used to exonerate people. … Someone’s exhausted all their appeals, new evidence comes out, the court won’t look at it. The president can say, “I’m issuing a pardon because this person is actually innocent.” You can imagine the president saying, “This special prosecutor has gone too far. This is a witch hunt. This is fake news. This is all a bunch of inappropriate use of power. I’m the president. I have the power to stop it ,and I’m going to use that power.” … You can imagine at least 30 percent of the country would say, “Yeah, he’s right, this is ridiculous.”
Put yourself in the shoes of someone who’s being prosecuted. Let’s say you are sure you’re innocent but you’re being prosecuted anyway. If the president pardoned you, you would probably take it. Why take the chance?
If the president successfully pardoned his top aides or family members, what would that mean in terms of a political legacy?
Every once in a while people talk about amending the Constitution to restrict pardon power. The president has the pardon power because he’s politically accountable. … The fact of the matter is the Constitution doesn’t get amended for stuff like that. But you can imagine a very controversial pardon … might spur the amendment process. Congress [says that] there have been some abuses here [and] pass an amendment to restrict some pardon powers; [and] in certain matters the president can pardon but the Senate has to approve it. … But even then, it would be controversial, but it’s politics. Clinton did his controversial pardons, and there was a big fuss about it and now no one talks about it.
What’s the historical precedent for these controversial pardons?
I would say probably the [most] controversial pardon was when [President Gerald] Ford pardoned Nixon. He did it in 1974, and he still had to run for reelection [in 1976], and he lost, and it probably cost him the election. … That’s the way it’s supposed to work. The president did it because he thought it was the right thing to do, and he was accountable. So that one didn’t blow over; that haunted Ford for the rest of his term, but it was probably the right thing to do. I think that’s got to be the No. 1 most controversial because it cost him the election.
Once you’re pardoned, can you be prosecuted in the future?
The state can prosecute you still. The pardon would have to specify what it covers. Ford’s pardon of Nixon was pretty broad. It was for anything [Nixon] did or might have done as president. … But if it said something like, “I pardon you for your role in the Iran-Contra scandal,” then they might still be able to prosecute me for anything else I did [outside of that], or lying to investigators. So you have to look at the terms of the pardon and see what falls under it. But basically if you’re pardoned and you haven’t already been prosecuted, then you can’t [be prosecuted]. Whatever [the pardon] says it’s covering, then it covers it. But that still leaves [state prosecution], and it still leaves impeachment.
What is the timeline for a pardon?
The usual process is that it goes through the Department of Justice. It takes years, and they make a recommendation.
But if the president wants to pardon someone, basically all you have to do is take out a piece of paper. Maybe you can even tweet it, if you’ve got the right language. All you have to say is, “I, Donald J. Trump, as president of the United States, hereby pardon so and so for such and such …” and then sign it. And that’s that. … The timeline is whatever the president wants it to be.
What’s a situation in which a president could get a pardon? How likely is the 25th Amendment scenario (in which Vice President Mike Pence steps in and then pardons Trump)?
What [someone in my law school class] said was, why would you go out of the way to pardon yourself when you could just do that? “I’m having a colonoscopy and I’m going to hand over power to the vice president.” And then the vice president pardons you, and then you come back and be president again.
That’s a great example of the most important check on the pardon power being political. It would be a tremendous political black eye to try and do something like that. You would think they would do that if they thought they could get away with it or if they had nothing to lose.
Politically, they might try and do it if they thought they could get away with it. If they had nothing to lose, then that’s not something worth protecting. As a legal matter I don’t see any reason why they couldn’t do that. The pardons would stick. You could say they made a deal; it’s a conspiracy to obstruct justice … but the pardons would stick. I don’t know why Mike Pence would want to stick his neck out like that.
He’s not one of the people who has nothing to lose.
Right, and he’s the one person Trump can’t fire.
You mentioned this earlier — the Justice Department has a 1974 memo stating that the president cannot pardon himself. What does that memo mean if Trump tries to pardon himself? Is it binding in any way?
No, [it’s not binding]. Its value is that it is potentially persuasive to say it’s a well-respected office, the Department of Justice, and smart people looked into it and this is what they thought. … It would be a weight on the scale, but it wouldn’t present any kind of insurmountable barrier.
How would pardons affect Fifth Amendment protections?
[That’s] one drawback to pardoning people if you’re trying to derail an investigation. Let’s say the president tries to pardon his son-in-law [Jared Kushner]. And you say, OK, now Mueller can’t go after him and he’s out. But Mueller can still investigate. He can’t prosecute him. Now that Kushner is pardoned, he can’t plead the Fifth. That means he’s more likely to have to testify and that protection you’re giving to him comes at the cost of exposing everyone he would then be forced to testify against.
The cynical answer is [that] in exchange for his loyalty … he would testify in a way that didn’t incriminate anyone. But the fact of the matter is they can’t take the Fifth; that provides an important protection. That’s exposing everyone above him in the enterprise.
If there’s a possibility of state prosecution, then you might still plead the Fifth. “I’ve been pardoned but I don’t want to incriminate myself as far as any state proceedings, so I’m not going to talk to you.” But you could get around that by saying, “We’ll take your testimony and not share it with the state.”
And this would only apply to things the person was pardoned for.
What are the chances that Trump actually pardons someone in his circle? Or that he pardons himself?
Time and time again, when I try and predict what Donald Trump will do, I say, “Well, surely he would never do that,” and then he does. I’ve given up estimating the extent of his ambition or what I thought were political barriers to doing things. … He would probably not use the pardon power until or unless it really starts to get real. In other words, he wouldn’t do it at this stage. Once people are indicted, once it looks like they’re going to be indicted. Even then it’s a question of loyalty: Who does he feel like he needs to protect?
If it came to that, I don’t think he would hesitate to do it. This is a fault in my analysis before; I just assumed politically it would be be suicide to pardon your own inner circle like that. But public opinion is so divided and people view the news in such polarized and mutually exclusive ways, I could see him saying, “I’m not bailing out my corrupt cronies. I’m protecting them from the other side being corrupt and inappropriate and of course I’m going to do the right thing here.”
If you don’t have enough people in Congress — the Republican majority would have to be against it — then you get away with it. I think he could get away with a lot more politically than I ever imagined a president could.
Would that person have to accept a pardon?
Sometimes the president issues a pardon conditionally. If you do X, then you’re pardoned. In that case, the person can say, “Well, I don’t want to do that, so I don’t accept the pardon.” In that case, you can say it has to be accepted. But there are other cases where the president says, for instance, President [Dwight] Eisenhower, there was a guy [Maurice Schick] who was about to executed and Eisenhower commuted his sentence and said, “Give him a life sentence and don’t execute him.” [Schick] said, “I don’t want a life sentence; I’d rather be executed.” The court said, “It’s not up to you to accept it or not.” A pardon doesn’t have to be accepted even though there are a lot of contexts in which it does. If the president wants it to happen without the person accepting it, there are ways he can do that.
How could a pardon affect the independent counsel’s investigation?
It would reduce the number of targets for prosecution, but it would expand the amount of testimony they could get. The question is how many targets are left versus how much testimony does it open up?
What about any congressional investigations?
That’s where the Constitution specifically says pardons don’t apply to impeachment. You couldn’t do anything to an impeachment — if anything, it could add fuel to the fire for an impeachment.
And the Donald Trump Jr. Senate hearings this week?
No. Congress’ power to investigate and to impeach are totally outside of the reach of the pardon power.
Ex-ethics chief Walter Shaub tweeted that we should never underestimate the willingness of the Office of Legal Counsel to revise its views when the White House finds them “annoying.” What’s your response to that?
but never underestimate willingness of OLC, which issued torture memo + nepotized WH, to revise its views when WH finds rule of law annoying
— Walter Shaub (@waltshaub) July 21, 2017
That sounds pretty cynical to me, but the line between cynical and realistic is getting thinner every day. … I wouldn’t put it that way, but I can’t disagree with that.
What are people missing when they’re looking at this question of Trump and presidential pardons?
People aren’t paying enough attention to the possibility of state prosecution. The attorney general of New York [Eric Schneiderman], [is] no friend of Trump, and there’s nothing [Trump] can do about stopping state prosecution. … He can’t pardon it away.
People don’t ignore this as much, but I think they need to emphasize it more. When it comes to presidents and their accountability for their potentially criminal actions, it’s first and foremost political, and it’s first and foremost up to Congress and whether they’re going to impeach. The independent counsel can prosecute all sorts of people, but he can’t do anything to the president without Congress going first.
We saw that with [independent counsel] Ken Starr [who investigated Clinton]. … He took his report [on Clinton] and he sent it to Congress [which helped the impeachment begin].
Could a court challenge a pardon?
It would have to come up where the president pardoned himself and the prosecutor went after him anyway. The court would have to decide at that point if the president didn’t pardon himself, we won’t know. If he did pardon himself and they didn’t try to prosecute, we wouldn’t know.
But if he pardons himself and they try to prosecute him anyway, then we would, or if they start to and they ask the court. As long as it’s not theoretical, the court will weigh in. Once they do, it’s settled.
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