1 00:00:01,920 --> 00:00:07,120 Speaker 1: Welcome to Brainstuff production of I Heart Radio. Hey brain Stuff, 2 00:00:07,200 --> 00:00:12,680 Speaker 1: Lauren bog Obam here. In late November, then President Donald J. 3 00:00:12,800 --> 00:00:16,000 Speaker 1: Trump announced on Twitter quote, it is my great honor 4 00:00:16,079 --> 00:00:18,880 Speaker 1: to announce that General Michael T. Flynn has been granted 5 00:00:18,920 --> 00:00:23,880 Speaker 1: a full pardon. Flynn, transformer National Security advisor, had been 6 00:00:23,920 --> 00:00:26,480 Speaker 1: the only member of the Trump administration to be charged 7 00:00:26,520 --> 00:00:29,000 Speaker 1: with a crime as part of the investigation by Special 8 00:00:29,040 --> 00:00:33,760 Speaker 1: Counsel Robert Muller into Russian interference in the presidential campaign 9 00:00:33,960 --> 00:00:36,080 Speaker 1: and the question of whether there had been links to 10 00:00:36,360 --> 00:00:42,120 Speaker 1: or coordination with the Trump campaign. Flynn pled guilty to 11 00:00:42,200 --> 00:00:44,880 Speaker 1: align to the FBI about his contacts with the Russian 12 00:00:44,880 --> 00:00:49,240 Speaker 1: ambassador and cooperated with prosecutors, but then changed his mind 13 00:00:49,360 --> 00:00:53,479 Speaker 1: and tried to withdraw his plea. Trump's pardon of Flynn 14 00:00:53,520 --> 00:00:56,240 Speaker 1: drew fire from critics and Congress who saw it as 15 00:00:56,240 --> 00:00:59,080 Speaker 1: an effort by Trump to erase the investigation into his 16 00:00:59,120 --> 00:01:03,200 Speaker 1: campaign's connection with Russia, which Trump angrily had denounced as 17 00:01:03,240 --> 00:01:07,520 Speaker 1: a hoax. The outcry increased after the White House released 18 00:01:07,560 --> 00:01:10,600 Speaker 1: the specifics of the pardon, which absolved Flynn of not 19 00:01:10,720 --> 00:01:13,680 Speaker 1: just the original charges, but also of any and all 20 00:01:13,760 --> 00:01:17,440 Speaker 1: possible offenses within the investigatory authority or jurisdiction of the 21 00:01:17,480 --> 00:01:22,360 Speaker 1: special counsel. One legal expert, Margaret Love, a former pardon 22 00:01:22,400 --> 00:01:25,480 Speaker 1: attorney for presidents George H. W. Bush and Bill Clinton, 23 00:01:25,880 --> 00:01:28,880 Speaker 1: told Politico that Trump's pardon of Flynn was the most 24 00:01:28,920 --> 00:01:32,240 Speaker 1: sweeping in history, even more so than President Gerald ford 25 00:01:33,360 --> 00:01:36,360 Speaker 1: pardon of his predecessor Richard Nixon for any crimes he 26 00:01:36,440 --> 00:01:41,680 Speaker 1: might have committed during Watergate, But the critics concerns didn't 27 00:01:41,720 --> 00:01:45,800 Speaker 1: make any difference. Trump, like every president before him, had 28 00:01:45,800 --> 00:01:49,360 Speaker 1: the unique ability to override the federal justice system, release 29 00:01:49,440 --> 00:01:52,680 Speaker 1: anyone he chose from paying a finer sentence, and return 30 00:01:52,760 --> 00:01:55,120 Speaker 1: a person to the state of innocence they had before 31 00:01:55,200 --> 00:01:59,760 Speaker 1: they ever committed a crime. The President isn't required to 32 00:02:00,040 --> 00:02:04,520 Speaker 1: explain or justify this action to view me, Congress, or 33 00:02:04,640 --> 00:02:07,680 Speaker 1: anyone else for that matter. The power to pardon is 34 00:02:07,760 --> 00:02:10,760 Speaker 1: left solely to the discretion of the President and cannot 35 00:02:10,800 --> 00:02:13,880 Speaker 1: be reviewed or overturned by any of the other branches 36 00:02:13,880 --> 00:02:18,280 Speaker 1: of government. So where does this power come from, Why 37 00:02:18,280 --> 00:02:21,120 Speaker 1: did it make it into the U s Constitution, What 38 00:02:21,240 --> 00:02:25,760 Speaker 1: does it do, and how exactly does it work. The 39 00:02:25,800 --> 00:02:29,440 Speaker 1: presidential pardon is based on the royal prerogative of English kings, 40 00:02:29,639 --> 00:02:33,960 Speaker 1: which gave the king the ability to overturn any sentence. Originally, 41 00:02:34,040 --> 00:02:37,400 Speaker 1: the king's prerogative existed without any limitations attached to it, 42 00:02:38,000 --> 00:02:40,320 Speaker 1: but during the reign of King Charles the Second of 43 00:02:40,440 --> 00:02:44,519 Speaker 1: sixteen sixty two sixty five, the English Parliament managed to 44 00:02:44,560 --> 00:02:47,960 Speaker 1: institute the single rule that impeachment was excluded from the 45 00:02:48,000 --> 00:02:53,080 Speaker 1: pardon power. This rule lives on today. When the Founding 46 00:02:53,120 --> 00:02:55,799 Speaker 1: Fathers were developing the laws for the United States the 47 00:02:55,880 --> 00:02:59,280 Speaker 1: late eighteenth century, the power to pardon almost didn't make 48 00:02:59,320 --> 00:03:02,480 Speaker 1: it into the Constitution. In fact, it was barely considered. 49 00:03:03,120 --> 00:03:06,360 Speaker 1: Two plans for framing the Constitution, the Virginia Plan and 50 00:03:06,360 --> 00:03:09,280 Speaker 1: the New Jersey Plan, did not include the power to pardon. 51 00:03:10,080 --> 00:03:13,320 Speaker 1: One of the Virginia Plans backers, George Mason, believed it 52 00:03:13,360 --> 00:03:15,959 Speaker 1: was a mistake to grant such power to a single person, 53 00:03:16,639 --> 00:03:19,600 Speaker 1: having just revolted against King George the Third, whom many 54 00:03:19,639 --> 00:03:23,960 Speaker 1: Americans considered a tyrannical king. Many of Mason's fellow framers 55 00:03:23,960 --> 00:03:29,520 Speaker 1: agreed with him, but Alexander Hamilton's, who believed in a large, powerful, 56 00:03:29,680 --> 00:03:32,799 Speaker 1: centralized federal government made up of the elite thinkers of 57 00:03:32,840 --> 00:03:35,640 Speaker 1: the Nation was able to bring the other framers of 58 00:03:35,640 --> 00:03:38,400 Speaker 1: the U. S. Constitution around to his way of thinking. 59 00:03:39,480 --> 00:03:43,920 Speaker 1: In number seventy four of his Federalist papers, Hamilton's extolled 60 00:03:43,960 --> 00:03:48,160 Speaker 1: the value of a pardoning power. He wrote, in seasons 61 00:03:48,200 --> 00:03:51,920 Speaker 1: of insurrection or rebellion, there are often critical moments when 62 00:03:51,960 --> 00:03:54,600 Speaker 1: a well timed offer of pardon to the insurgents or 63 00:03:54,640 --> 00:03:58,400 Speaker 1: rebels may restore the tranquility of the commonwealth, and which, 64 00:03:58,440 --> 00:04:01,160 Speaker 1: if suffered to pass an imp proved, it may never 65 00:04:01,200 --> 00:04:06,800 Speaker 1: be possible afterwards to recall Hamilton's and eventually the other 66 00:04:06,880 --> 00:04:10,200 Speaker 1: framers saw the value of investing in the president the 67 00:04:10,240 --> 00:04:13,280 Speaker 1: ability to, at a moment's notice, and without the consent 68 00:04:13,360 --> 00:04:16,760 Speaker 1: of any other branch of government, grant reprieves to groups 69 00:04:16,839 --> 00:04:20,400 Speaker 1: during periods of national crisis. It was reasoned that some 70 00:04:20,520 --> 00:04:24,200 Speaker 1: crises could be allayed or overcome if the belligerents could 71 00:04:24,240 --> 00:04:27,039 Speaker 1: be given a deal for giving them for their trespasses, 72 00:04:28,279 --> 00:04:31,680 Speaker 1: almost no sooner than the ink on the Constitution was dry. 73 00:04:31,800 --> 00:04:36,120 Speaker 1: This ability was needed when farmers in Pennsylvania revolted in 74 00:04:36,200 --> 00:04:40,080 Speaker 1: seventeen ninety four against federal taxes levied on their corn crops. 75 00:04:40,440 --> 00:04:44,680 Speaker 1: The whiskey rebellion was born. President George Washington used the 76 00:04:44,720 --> 00:04:46,800 Speaker 1: power to pardon for the first time in the United 77 00:04:46,800 --> 00:04:50,400 Speaker 1: States history to forgive the revolting farmers for their insurrection 78 00:04:50,560 --> 00:04:54,279 Speaker 1: against the young Nation. The action worked, and the rebellion 79 00:04:54,360 --> 00:04:58,479 Speaker 1: was quieted. The pardon has since been used in this 80 00:04:58,560 --> 00:05:02,599 Speaker 1: original intent several times. Andrew Johnson used the pardon to 81 00:05:02,720 --> 00:05:06,680 Speaker 1: redeem Confederate soldiers after the Civil War and to help 82 00:05:06,800 --> 00:05:10,200 Speaker 1: end the Vietnam era. President Jimmy Carter offered a blanket 83 00:05:10,200 --> 00:05:12,760 Speaker 1: pardon to any American who had dodged the draft during 84 00:05:12,760 --> 00:05:17,120 Speaker 1: the Vietnam War. There have been cases where Congress has 85 00:05:17,160 --> 00:05:21,000 Speaker 1: considered introducing bills that limit the president's pardon power or 86 00:05:21,040 --> 00:05:24,680 Speaker 1: allow oversight of pardons. Every last one of these bills 87 00:05:24,720 --> 00:05:28,760 Speaker 1: has failed. Why Because the president's power to pardon is 88 00:05:28,839 --> 00:05:33,040 Speaker 1: guaranteed by the Constitution. It's in the actual original document, 89 00:05:33,240 --> 00:05:35,800 Speaker 1: not just the Bill of Rights, and as such, the 90 00:05:35,880 --> 00:05:40,520 Speaker 1: judicial branch has viewed it as being protected. So what 91 00:05:40,640 --> 00:05:44,760 Speaker 1: does this power involve? A person who is convicted of 92 00:05:44,760 --> 00:05:47,240 Speaker 1: a federal felony may have to go to prison or 93 00:05:47,320 --> 00:05:50,840 Speaker 1: pay a fine, but that's not all. They lose certain 94 00:05:50,880 --> 00:05:54,000 Speaker 1: civil liberties, the right to vote, serve on a jury 95 00:05:54,160 --> 00:05:57,880 Speaker 1: own a firearm. But Article to Section two of the U. 96 00:05:58,040 --> 00:06:01,679 Speaker 1: S Constitution gives the president odd power to provide relief 97 00:06:01,920 --> 00:06:05,960 Speaker 1: called clemency from all of those punishments. There are five 98 00:06:06,040 --> 00:06:11,919 Speaker 1: types of clemency, from temporary postponement to full pardon. People 99 00:06:11,920 --> 00:06:15,440 Speaker 1: convicted of federal crimes can request clemency through the Department 100 00:06:15,480 --> 00:06:18,880 Speaker 1: of Justice, or the sitting president can go outside of 101 00:06:18,880 --> 00:06:24,359 Speaker 1: that system. In the case Ship versus Read, the Supreme 102 00:06:24,400 --> 00:06:28,280 Speaker 1: Court decreed that quote the pardoning power is an enumerated 103 00:06:28,320 --> 00:06:32,200 Speaker 1: power of the Constitution and that it's limitations, if any, 104 00:06:32,360 --> 00:06:38,120 Speaker 1: must be found in the Constitution itself. While a president's 105 00:06:38,160 --> 00:06:42,279 Speaker 1: power to pardon is broad, it's not completely unlimited. For 106 00:06:42,360 --> 00:06:45,760 Speaker 1: one thing, presidents can only pardon people for federal crimes, 107 00:06:45,800 --> 00:06:49,680 Speaker 1: not state or local offenses. Additionally, a pardon can't be 108 00:06:49,839 --> 00:06:54,360 Speaker 1: used to overturn a judgment in a civil lawsuit. Most importantly, 109 00:06:54,680 --> 00:06:58,080 Speaker 1: the impeachment process, which can be used to remove presidents, 110 00:06:58,120 --> 00:07:01,800 Speaker 1: members of Congress, and federal judges office, is excluded from 111 00:07:01,800 --> 00:07:05,840 Speaker 1: the scope of the president's pardon power. And that's why 112 00:07:06,000 --> 00:07:08,560 Speaker 1: even though former President Trump said that he had the 113 00:07:08,640 --> 00:07:13,600 Speaker 1: absolute right to pardon himself legal scholars largely disagreed, though 114 00:07:13,640 --> 00:07:16,120 Speaker 1: the question wound up being moot as he left office 115 00:07:16,120 --> 00:07:19,720 Speaker 1: without attempting it. However, he did grant clemency to a 116 00:07:19,760 --> 00:07:22,240 Speaker 1: hundred and forty three people on his last day in office, 117 00:07:22,440 --> 00:07:26,080 Speaker 1: including his former chief strategist Steve Bannon, who had been 118 00:07:26,160 --> 00:07:29,120 Speaker 1: charged with using hundreds of thousands of dollars in donations 119 00:07:29,120 --> 00:07:32,760 Speaker 1: to Trump's We Build the Wall campaign for personal expenses. 120 00:07:33,560 --> 00:07:37,800 Speaker 1: Bannon will now not face a trial. This brings the 121 00:07:37,800 --> 00:07:40,680 Speaker 1: total number of times Trump used his power of executive 122 00:07:40,720 --> 00:07:44,280 Speaker 1: pardon to over two hundred and thirty five, though that's 123 00:07:44,280 --> 00:07:47,240 Speaker 1: actually on the relatively low end of the scale, and 124 00:07:47,320 --> 00:07:50,160 Speaker 1: it's not uncommon to see a rash of clemency during 125 00:07:50,160 --> 00:07:54,440 Speaker 1: a president's final days in office. Franklin D. Roosevelt granted 126 00:07:54,480 --> 00:07:57,720 Speaker 1: the most pardons of any president three thousand, six hundred 127 00:07:57,720 --> 00:08:00,920 Speaker 1: and eighty seven during his three and off terms in office, 128 00:08:01,360 --> 00:08:07,560 Speaker 1: many of them for offenses occurred during World War One. 129 00:08:09,360 --> 00:08:11,960 Speaker 1: Today's episode was written by Patrick Jake Kaiger and produced 130 00:08:11,960 --> 00:08:14,520 Speaker 1: by Tyler Clang. For more on listen lots of other topics, 131 00:08:14,600 --> 00:08:17,000 Speaker 1: visit how Stuff Works dot com. Brain Stuff is a 132 00:08:17,000 --> 00:08:19,920 Speaker 1: production of I Heart Radio. For more podcasts, My heart Radio, 133 00:08:20,080 --> 00:08:22,960 Speaker 1: visit the iHeart Radio app, Apple podcasts, or wherever you 134 00:08:23,000 --> 00:08:24,240 Speaker 1: listen to your favorite shows.