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Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show

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Speaker 1: where we explore the stories behind the stories in the news.

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Speaker 1: I'm Noah Feldman. Donald Trump has about six weeks left

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Speaker 1: in office, and one way he may use some of

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Speaker 1: that time is by issuing pardons. It's been reported that

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Speaker 1: he's had conversations about partnering his lawyer, Rudy Giuliani, about

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Speaker 1: partnering his children, and in the background is also something

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Speaker 1: that Trump has said in the past, namely that he

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Speaker 1: would have the power to pardon himself. To discuss presidential

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Speaker 1: pardons and what Trump can and cannot do, I'm joined

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Speaker 1: by Seth Berman. Seth is a former state and federal prosecutor.

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Speaker 1: He's a visiting lecturer at Harvard Law School, and he's

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Speaker 1: a partner at the law firm Nutter, McLennan and Fish,

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Speaker 1: the firm originally founded by Justice Louis Brandon's. Seth was

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Speaker 1: on Deep Background last fall to talk about the impeachment

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Speaker 1: inquiry into Trump's presidency and woe have things changed a

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Speaker 1: lot since then. Seth remains my go to person for

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Speaker 1: all matters criminal and I'm thrilled to have him. Seth,

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Speaker 1: thank you so much for coming back on the podcast,

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Speaker 1: you were a prosecutor for a long time. You were

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Speaker 1: an assistant district attorney in New York, and then you

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Speaker 1: were an assistant US attorney in Boston. How do prosecutors

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Speaker 1: feel about the pardon power? You know, in truth, no,

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Speaker 1: I think most prosecutors feel nothing about it. The pardon

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Speaker 1: is used so rarely that as a normal prosecutor, you

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Speaker 1: almost never come across a pardon as a practical matter.

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Speaker 1: In other words, I think prosecutors have very little contact

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Speaker 1: with the pardon power. To those of us who think

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Speaker 1: theoretically about these things, you know, it's a little odd,

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Speaker 1: and a lot of it depends on, obviously, whether or

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Speaker 1: not you think that a pardon was granted for a

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Speaker 1: good reason or a bad reason. It feels like and

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Speaker 1: it is a get out of jail free card. So

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Speaker 1: if you think that someone shouldn't get out of jail free,

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Speaker 1: the pardon seems wrong. I think that those of us

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Speaker 1: who are thoughtful as prosecutors do understand that there are

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Speaker 1: times when the criminal justice system ends up with results

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Speaker 1: that may not be just, and the pardon power can

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Speaker 1: be a way of addressing that when the system otherwise

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Speaker 1: fails and I think this is particularly important in our system,

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Speaker 1: where appeals are almost always essentially based on legal issues

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Speaker 1: and not factual issues. So once a person has been convicted,

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Speaker 1: the fact that facts themselves may look different years later

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Speaker 1: is not generally a way out of a criminal conviction.

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Speaker 1: So one way that the pardon power can come in

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Speaker 1: handy is when you sort of have an underlying question

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Speaker 1: about a prosecution, perhaps after the fact that the appeal

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Speaker 1: system isn't so well able to handle. There are other

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Speaker 1: ways of handling it, but the pardon power is one

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Speaker 1: safety valve that I think has an important role. There

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Speaker 1: are a bunch of really interesting things you said there.

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Speaker 1: I want to go backwards. You were saying at the

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Speaker 1: end that one of the reasons it's good to have

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Speaker 1: the part in power is that sometimes the system blows it.

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Speaker 1: Sometimes the wrong person gets convicted, stays in prison for

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Speaker 1: a long time, and there's no simple way to get

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Speaker 1: them out by arguing to a court that they were

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Speaker 1: actually innocent the whole time. I think that's kind of

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Speaker 1: counterintuitive to non lawyers. I think they think that, you know,

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Speaker 1: if later on evidence comes up like a cold case,

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Speaker 1: you know, you go to the authorities and they magically

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Speaker 1: spring the person out of prison. But the reality, as

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Speaker 1: you were saying, is otherwise. It's that you really need

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Speaker 1: a legal reason usually to get someone out of prison,

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Speaker 1: and the mere fact that they were wrongfully convicted on

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Speaker 1: the facts isn't usually enough to get them out. That

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Speaker 1: seems like it would be a really good use of

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Speaker 1: the part in power. How often is the pardon power

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Speaker 1: used that way? Rarely, and probably at the federal level

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Speaker 1: even more rarely. The pardon power exists not only for

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Speaker 1: the president, but governors typically also have a pardon power,

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Speaker 1: and since most prosecutions are actually at the state level,

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Speaker 1: the pardon powers probably more often used at the state

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Speaker 1: level than at the federal level. Maybe we should create

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Speaker 1: by legislation some special commission for reinvestigating those rare cases

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Speaker 1: where you can prove that the person didn't really do it,

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Speaker 1: and then we could move away from the pardon power,

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Speaker 1: which you know, as you mentioned, it's to get out

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Speaker 1: of jail free card. And it seems very monarchic or

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Speaker 1: emperor like, and in fact that's where it comes from.

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Speaker 1: I mean the founding fathers when they put the pardon

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Speaker 1: power into the constitution. We're thinking of the King of

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Speaker 1: England and the Kings of England. We're thinking about the

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Speaker 1: Emperor of Rome, and there's a kind of by my

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Speaker 1: Great justice and mercy I hereby pardon new thing going

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Speaker 1: on there which seems really out of step with the

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Speaker 1: idea of democratic or republican government. I certainly agree with that.

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Speaker 1: I mean, the pardon power, at least in its broadest interpretation,

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Speaker 1: seems like it is at least as ripe for abuse

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Speaker 1: as it is for the use that I just described.

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Speaker 1: And I agree that a better way to resolve that

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Speaker 1: would be to institutionalize the safety valve aspect in some

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Speaker 1: other way, which we really haven't done as part of

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Speaker 1: the criminal justice system. And I think partly because of

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Speaker 1: institutions like the Innocence Project. It is something that's now

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Speaker 1: on the radar screen because we now have an understanding

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Speaker 1: that more people are convicted of crimes they didn't commit

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Speaker 1: than we should feel comfortable about. With that fact, it

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Speaker 1: sort of invites a weight what is our long term

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Speaker 1: solution to this. There is some attempt to try to

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Speaker 1: regularize the pardon power, So there's in the Department of

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Speaker 1: Justice a part in office, and if you want a

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Speaker 1: pardon for your client, you're supposed to go to that

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Speaker 1: office and file an official request, and they're supposed to

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Speaker 1: be like an actual bureaucratic process of evaluation and analysis,

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Speaker 1: which would then make its way eventually to the White

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Speaker 1: House worthwhile cases, and if presidents just developed the custom

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Speaker 1: of only pardoning people who'd gone through that process, then

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Speaker 1: we might be able to solve some of the problem

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Speaker 1: of the apparently arbitrary and potentially corrupt use of pardons

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Speaker 1: by presidents. Why hasn't that really worked so far? Well,

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Speaker 1: I think we should actually break that down into two

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Speaker 1: time periods, right, which is like the before Trump time

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Speaker 1: period and what we're worried about now. Before Trump, I think,

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Speaker 1: to some extent that is how pardons worked, but it

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Speaker 1: was never the only way pardons worked. Didn't Bill Clinton

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Speaker 1: get into a lot of trouble At the end of

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Speaker 1: the very last day in office, he pardoned people, including

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Speaker 1: the financier Mark Rich, And then there was a whole

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Speaker 1: investigation run actually by Jim Comey of what had happened.

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Speaker 1: Absolutely so Clint got in trouble for that. He also

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Speaker 1: pardoned his half brother who had been convicted of various

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Speaker 1: drug crimes over the years, and George hw Bush before

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Speaker 1: that pardoned the people who'd been in the Iran contrast scandal,

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Speaker 1: as recommended by Bill Barr exactly. So I think there

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Speaker 1: have always been people close to the president who got

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Speaker 1: pardons as a parting gift, and I think everyone has

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Speaker 1: long understood that the transition period, in the waning days

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Speaker 1: of an administration is a time to start giving these

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Speaker 1: gifts because there's little cost in doing so. You give them,

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Speaker 1: your political career is typically over at that point, so

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Speaker 1: it kind of doesn't matter. And even for the ones

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Speaker 1: that caused an uproar at the time, those uproars go away.

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Speaker 1: And you know, I don't think any historian rights of

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Speaker 1: a president he was a great president except for those

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Speaker 1: pardons he gave at the end of his term. Right,

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Speaker 1: No one thinks of it as that important in the

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Speaker 1: grand scheme of time. So if you're a regular person,

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Speaker 1: you're a drug dealer, let's say, who's reformed, and you're

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Speaker 1: deserving of a pardon in the for the whatever normal

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Speaker 1: reasons one might be deserving of a pardon, that goes

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Speaker 1: to the pardon office. But if you're a friend to

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Speaker 1: the president or the other person Clinton pardoned somewhat controversially

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Speaker 1: was Susan McDougall, who had been called to testify by

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Speaker 1: the Whitewater investigation by Ken Starr, had refused to testify,

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Speaker 1: had gone to jail for refusing to testify, and he

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Speaker 1: ultimately pardoned her, so that Susan McDougall was rewarded for

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Speaker 1: not testifying against Clinton. Interestingly, Susan McDougall's husband had gone

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Speaker 1: the other way. He had cooperated. I think he did

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Speaker 1: actually get convicted of a crime as part of that cooperation,

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Speaker 1: and he was not pardoned by Clinton. Now it sounds

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Speaker 1: like Clinton was really not so much better than we're

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Speaker 1: worried that Trump would be. I mean family members. Check

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Speaker 1: person who stonewalled in an investigation that went directly to

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Speaker 1: criminality by the president. Check Rich Crony, whom we may

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Speaker 1: not have known personally, but who knew people who knew

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Speaker 1: him really well. Check. We have become a customed for

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Speaker 1: four years to saying that Donald Trump is the worst

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Speaker 1: of everything. But this sounds like an instance where it

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Speaker 1: might not be that much worse than Clinton. Well, I

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Speaker 1: think that to some degree it's a difference of degree

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Speaker 1: rather than kind. What feels a little bit different here

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Speaker 1: is that. First of all, Trump has floated publicly the

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Speaker 1: pardon power in ways that seemed like he was publicly saying,

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Speaker 1: if you don't turn on me, I will pardon you.

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Speaker 1: And he has even said things like to agents of ice,

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Speaker 1: he said, you know, you do whatever you want at

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Speaker 1: the border. If you get arrested or you do anything illegal,

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Speaker 1: all pardon you, which begins to feel like it's not

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Speaker 1: just a get out of jail free card for the

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Speaker 1: folks who are around him, but essentially a means of

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Speaker 1: allowing the president to potentially commit crimes and face no consequences.

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Speaker 1: That does sound like a difference of kind rather than

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Speaker 1: of degree. So let's talk about whether the president can

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Speaker 1: get himself into legal trouble around the pardon power. Is

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Speaker 1: there a way that the president could grant a pardon

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Speaker 1: that would itself constitute a crime? So the answer to

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Speaker 1: that is probably yes, although as with everything with the president,

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Speaker 1: you always have at best a probably. So. The easiest

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Speaker 1: and most obvious way to do that is that there

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Speaker 1: are a bunch of different crimes which happen when a

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Speaker 1: public official essentially accepts something of value in return for

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Speaker 1: doing their job or for doing something that they're supposed

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Speaker 1: to do or are able to do. I should say so.

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Speaker 1: For example, if the president decided to take a cash

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Speaker 1: bribe in return for giving out pardons, like you just

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Speaker 1: put them on sale on eBay and said, anyone who

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Speaker 1: wants to pardon, the opening bid is a million dollars

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Speaker 1: and you let me know that presumably would violate the

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Speaker 1: bribery laws that prohibit a public official from taking money

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Speaker 1: in return for doing some good they're allowed to do

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Speaker 1: in their job, something they're allowed to do. You always

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Speaker 1: have the problem with the president that the president is

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Speaker 1: unique in the constitutional structure, and as a result, it's

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Speaker 1: not always perfectly clear that a law that would apply

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Speaker 1: to any other government official also applies to the president.

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Speaker 1: I think that it would, but you can imagine room

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Speaker 1: for a court to say that the president is so unique,

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Speaker 1: the pardon power is so broad that he can do

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Speaker 1: anything even that if he wants to. Although it is

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Speaker 1: hard for me to believe a court saying about a

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Speaker 1: president who's out of all and is being charged with

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Speaker 1: a crime that it was okay for him to take

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Speaker 1: money in exchange for giving a pardon, even if he

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Speaker 1: has the pardon power. I mean, as you were saying

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Speaker 1: the bribery Statute applies ordinarily to people in the government

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Speaker 1: doing things that are within their lawful power, but doing

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Speaker 1: it for corrupt reasons. This is one of the things

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Speaker 1: that immediately came to my mind when I read the

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Speaker 1: story that Rudy Giuliani and the President we're talking about

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Speaker 1: a potential pardon. As I always do whenever I think

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Speaker 1: there's a crime of foot I immediately made my first

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Speaker 1: and only call to you, and I said, wait a minute,

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Speaker 1: isn't this a crime? And you said, yeah, it could

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Speaker 1: be a crime because the President owes Giuliani a lot

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Speaker 1: of money for representation, and that could be construed as

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Speaker 1: in some way a gift. The pardon could be a

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Speaker 1: gift in exchange for the services, the legal services that

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Speaker 1: Giuliani has rendered to the president. I think that that

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Speaker 1: is true. And if you're asking me, as a prosecutor,

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Speaker 1: would I prosecute that case. The answer, depending on the facts,

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Speaker 1: is yes, if I could prove the facts as you

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Speaker 1: just des them. But I still think that there is

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Speaker 1: at least room for the President to argue that the

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Speaker 1: pardon power is not like other powers. You know, if

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Speaker 1: you're the city manager and you can give out permits

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Speaker 1: to build buildings. Right, You're supposed to give out those

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Speaker 1: permits only when they're warranted, not when you get a bribe.

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Speaker 1: But the pardon power is not so limited. It seems

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Speaker 1: to say you could do it anytime you want. Do

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Speaker 1: I actually think that the Supreme Court would hold that that's,

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Speaker 1: you know, crime doesn't cover the president. I highly doubt it,

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Speaker 1: but I can't say that it's impossible to make that argument.

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Speaker 1: And I've been surprised by how many of these expansive

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Speaker 1: presidential arguments seem to have more legs than I thought

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Speaker 1: they would prior to this president. Even if it were

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Speaker 1: a crime to buy a pardon, is it possible that

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Speaker 1: the pardon would still have effect even though a person

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Speaker 1: achieved it and bought it criminally. I think almost any

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Speaker 1: question that starts with would a pardon have power if?

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Speaker 1: And then so hypothetical? The answer to that almost always

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Speaker 1: is no court has ever adjudicated that issue. Right, So

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Speaker 1: we have seen pardons that were given to broad groups

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Speaker 1: of people. Jimmy Carter famously pardoned all of the people

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Speaker 1: who had avoided the draft and fled to Canada. No

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Speaker 1: one had ever pardoned quite that many people. Although I

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Speaker 1: think George Washington actually pardoned people who were involved in

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Speaker 1: the Whiskey rebellion, but it wasn't so many people. Is

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Speaker 1: that absolutely an ironclad pardon? Everyone acted like it was.

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Speaker 1: None of those people got prosecuted, So no judge ever

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Speaker 1: answered whether or not that is a legitimate pardon. I

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Speaker 1: think that that's part of the answer here. We don't

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Speaker 1: really know. I suspect a court would try hard to

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Speaker 1: invalidate that pardon, because how could you let that pardon stand,

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Speaker 1: the bribery pardon. Do we know that it's invalid? I

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Speaker 1: don't think we know that. You're building now to another

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Speaker 1: pardon hypothetical, which is very much on everybody's minds these days,

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Speaker 1: although we've been talking about it now for almost four years,

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Speaker 1: and that is what if on the way out the door,

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Speaker 1: Donald Trump pardons not only his friends, his family, his associates,

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Speaker 1: ice agents, but himself. I have been on the record

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Speaker 1: since the very beginning of this saying again and again

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Speaker 1: in my columns, no, the president cannot pardon himself. A

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Speaker 1: pardon is ultimately something you do to another person. It's

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Speaker 1: a transitive verb. You pardon another person. You don't self

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Speaker 1: pardon it's not logical, and it wouldn't have existed under

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Speaker 1: British law, in part because you couldn't prosecute the king

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Speaker 1: in the first place under a British law. Not everybody

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Speaker 1: agrees with me on this subject, needless to say, where

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Speaker 1: do you come down, Seth. Do you think the president

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Speaker 1: could pardon himself and if so, that it would subsequently

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Speaker 1: be respected by prosecutors so that it never went to court,

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Speaker 1: or alternatively wouldn't be respected by prosecutors, and then a

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Speaker 1: court would have to rule on it. I think the

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Speaker 1: Biden administration, whether the President pardons himself or not, will

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Speaker 1: be under great pressure both to prosecute and not to

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Speaker 1: prosecute the president, and my guess is that they will

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Speaker 1: decide to sidestep the issue and not prosecute him for

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Speaker 1: the same reason that Ford decided to stop all prosecutions

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Speaker 1: against Nixon, which is sort of we need to move

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Speaker 1: on and we can't let the next four years be

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Speaker 1: about the last four years. And I think that will

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Speaker 1: probably carry the day at the federal level. What I

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Speaker 1: actually wonder, though, Noah, is if Trump does pardon himself,

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Speaker 1: I almost feel like at that point you almost have

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Speaker 1: to prosecute him to try to prove that he couldn't

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Speaker 1: pardon himself, because the self pardon is so outrageous as

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Speaker 1: an idea, and the consequence of it is that a

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Speaker 1: president can literally be lawless because while he's president, we

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Speaker 1: say he can't be federally prosecuted, and then after he's

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Speaker 1: president he can pardon himself on the way out the door.

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Speaker 1: He could do anything and pardon himself. He could deal

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Speaker 1: the election, as Trump is trying to do, but perhaps

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Speaker 1: he could succeed and then pardon himself. He could shoot

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Speaker 1: his opponent and pardon himself as long as he didn't

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Speaker 1: violate a state crime in the process. So you're actually

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Speaker 1: saying something counterintuitive that I hadn't really thought of before.

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Speaker 1: You're saying, if the president were to pardon himself, he

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Speaker 1: actually increases the risks that he'll be prosecuted, because if

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Speaker 1: he doesn't pardon himself, the Biden administration will probably, all

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Speaker 1: things considered, say it's time to move on. But on

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Speaker 1: the other end, if he pardons himself, it just looks

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Speaker 1: so outrageous and it creates such a disastrous precedent that

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Speaker 1: if they have something, they can go after him for

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Speaker 1: that would actually give them a reason to go after him.

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Speaker 1: I think that's a fascinating idea. I mean, I think

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Speaker 1: that they may decide to pass on it just the same,

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Speaker 1: but I think the temptation to respond, particularly if there's

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Speaker 1: a big uproar about it, will be much larger, and

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Speaker 1: it'll be a lot easier to say, wait a minute,

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Speaker 1: that's beyond the pail, right, like we're willing to let

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Speaker 1: this slide. Perhaps, but you can't just say I can

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Speaker 1: do anything as president and no one can ever do

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Speaker 1: anything about it. Afterwards, We'll be right back. You mentioned

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Speaker 1: Gerald Ford. He granted the most famous pardon in all

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Speaker 1: of US history when he pardoned Richard Nixon. And the

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Speaker 1: official optimistic version of that is that he wanted the

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Speaker 1: country to move on. The more conspiracy theory view is that, look,

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Speaker 1: Richard Nixon made Gerald Ford his vice president and then

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Speaker 1: he resigned, and then Ford pardoned him. Surely, for someone

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Speaker 1: like Richard Nixon, the fix was in in some way,

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Speaker 1: either an explicit agreement with Ford or an implicit agreement

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Speaker 1: with Ford to pardon him. In retrospect, how does that

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Speaker 1: pardon look to you at a distance now, of you know,

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Speaker 1: pushing fifty years. You know, was that a good thing

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Speaker 1: for the country that we moved on or was it

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Speaker 1: a preposterous thing that one of our most criminal presidents,

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Speaker 1: at least until Donald Trump, just got away with everything.

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Speaker 1: You know. One of the things I think that's very

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Speaker 1: different between Nixon and Trump is that Nixon didn't really

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Speaker 1: get away with everything right Nixon. Nixon had to resign,

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Speaker 1: he lost the presidency and was publicly humiliated as a result.

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Speaker 1: Trump goes out of office, he lost, but he goes

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Speaker 1: out of office beloved by a shockingly high percent of

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Speaker 1: the country, with a political party one hundred percent behind him.

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Speaker 1: So far as we can tell, he hasn't been humiliated

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Speaker 1: at all. He hasn't appeared to lose anything other than

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Speaker 1: an election. But that happens to presidents, not because of

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Speaker 1: this sort of thing. So I think the situation is

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Speaker 1: a bit different, And the argument in favor of letting

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Speaker 1: Nixon not get prosecuted may have been stronger than it

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Speaker 1: is for Trump, because you didn't really think that Nixon

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Speaker 1: got away with it right. He really didn't get way

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Speaker 1: with it. He just didn't go to jail. So on

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Speaker 1: that view, maybe we did it wrong. You know, maybe

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Speaker 1: Nixon needed to go to prison so that future presidents

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Speaker 1: wouldn't think, Okay, I'll be embarrassed, but you know, I

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Speaker 1: won't have to actually pay the price. I basically agree

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Speaker 1: with that, Noah, at least as it looks right now

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Speaker 1: at this moment in history. In fact, I think one

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Speaker 1: can make an argument for many of the pardons that

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Speaker 1: have been used before that in retrospect, they all feel

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Speaker 1: like a stepping stone to the point where we get

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Speaker 1: to where a president thinks he can pardon himself. I

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Speaker 1: think you could say something similar about Jimmy Carter's blanket pardon,

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Speaker 1: or either Bushes or Clinton's pardon of sort of people

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Speaker 1: involved in investigations of them, that it looks more and

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Speaker 1: more deliberate now, and it's kind of become accepted because

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Speaker 1: of those old pardons, Like it feels now like it

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Speaker 1: was a slippery slope that had to end. Here. Seth,

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Speaker 1: as we talk this through characteristically, you're raising issues that

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Speaker 1: really make me think. And here are two thoughts. One

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Speaker 1: is the pardon power isn't just symbolically dangerous. You know,

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Speaker 1: president looks too much like a king. President can put

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Speaker 1: himself above the law. It's very practically dangerous. If a

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Speaker 1: president invited federal government employees to commit crimes on his

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Speaker 1: behalf and publicly or privately promised them pardons, that really

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Speaker 1: would allow a president to break the rule of law

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Speaker 1: system in a pretty totalizing way. So that's scarier than

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Speaker 1: I usually think about it as being. But that leads

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Speaker 1: to a second thought, which is, why didn't Donald Trump

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Speaker 1: really do that? I mean, he did say to the

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Speaker 1: Ice agents, do what you need to do, but that

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Speaker 1: wasn't for personal benefit. That was part of his outrageous

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Speaker 1: antiimmigrant sentiment. He hinted clearly at various associates of his

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Speaker 1: that they shouldn't testify and that he would reward them

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Speaker 1: with pardons. But as far as we know, at least,

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Speaker 1: he didn't directly say to anybody, just go ahead and

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Speaker 1: break the law on my behalf and don't worry, I

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Speaker 1: will pardon you. Why didn't Trump? This is speculative. Why

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Speaker 1: didn't Trump abuse the pardon the system more during his

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Speaker 1: four years in office than he actually did. It's always

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Speaker 1: dangerous before a presidency has even ended to start discussing

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Speaker 1: how historians will look back on it. So with that caveat,

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Speaker 1: I'm going to go ahead and make that statement anyway.

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Speaker 1: I think that when we look back on the presidency

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Speaker 1: of Donald Trump, one thing that will be remembered is

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Speaker 1: how Trump, deliberately or otherwise, was a genius at slowly

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Speaker 1: raising the temperature of his outrageous behavior, and by raising

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Speaker 1: the temperature slowly, he allowed the Republican Party to get

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Speaker 1: used to a higher temperature of outrageousness. I think if

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Speaker 1: on day one he had walked in and said I

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Speaker 1: will pardon you, or you know, if he had fired

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Speaker 1: Muller on day one, he might well have gotten impeached

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Speaker 1: right then, and he might well have been convicted in

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Speaker 1: that impeachment. But over time, as more and more Republicans

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Speaker 1: came of the view that they would pretend not to

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Speaker 1: hear and pretend not to see the stuff that was

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Speaker 1: going on, the level of tolerance for things they were

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Speaker 1: prepared to not hear and see went up. And I'm

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Speaker 1: not sure that prior to the end of his presidency

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Speaker 1: there was that tolerance for an outrageous use of the

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Speaker 1: pardon power. But we've clearly reached the point where there

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Speaker 1: might be. Now do you think we could ever get

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Speaker 1: support for a constitutional amendment to take away or limit

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Speaker 1: the president's pardon power. I mean, let's say Donald Trump

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Speaker 1: pardons himself in ten or twenty years, you know, when

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Speaker 1: Trump himself is no longer on the political scene, and assume,

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Speaker 1: for the sake of argument, that later Republicans end up

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Speaker 1: repudiating Trump, which I understand it seems like wishful thinking

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Speaker 1: right now, but it might turn out to be the

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Speaker 1: case historically. Do you think that would be the kind

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Speaker 1: of act that could actually motivate Americans to vote for

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Speaker 1: an amendment that says none of this anymore, it's not democratic.

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Speaker 1: I think it's possible, but it's pretty hard to know

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Speaker 1: right now. The thing that might make it happen is

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Speaker 1: if a democratic president also use the pardon power in

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Speaker 1: a way that Republicans found outrageous, and some the people

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Speaker 1: could say, gee, you know, that's not so good. I mean,

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Speaker 1: I do think it's going to be interesting to see

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Speaker 1: how a bunch of political actors and judges who've been

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Speaker 1: very deferential to presidential power when it was wielded by

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Speaker 1: Donald Trump. I wonder how deferential they'll be when it's

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Speaker 1: wielded by Joe Biden. And I think to a large extent,

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Speaker 1: they won't be so deferential. So it's possible that when

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Speaker 1: we get past this strange interregnum between presidents and we're

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Speaker 1: fully into a Biden administration, that some of the support

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Speaker 1: for the president can do anything because he's president will

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Speaker 1: start fading from conservative circles. Just as you know, Obama

430
00:24:04,396 --> 00:24:07,996
Speaker 1: was a tyrant in their view for executive orders that

431
00:24:07,996 --> 00:24:11,196
Speaker 1: were nowhere near so weeping as Trump's executive orders, and

432
00:24:11,276 --> 00:24:14,316
Speaker 1: yet when Trump issued them, they were his absolute right

433
00:24:14,356 --> 00:24:16,956
Speaker 1: as president. You know, it'll be interesting to see how

434
00:24:16,956 --> 00:24:19,596
Speaker 1: that plays out and whether we see over time a

435
00:24:19,716 --> 00:24:23,156
Speaker 1: rethinking and maybe even a willingness to work together to

436
00:24:23,196 --> 00:24:27,076
Speaker 1: reign in the power of the presidency so neither party

437
00:24:27,196 --> 00:24:29,076
Speaker 1: has to deal with what they believe to be the

438
00:24:29,116 --> 00:24:32,396
Speaker 1: dictator on the other side, What aspect of the pardon

439
00:24:32,436 --> 00:24:34,676
Speaker 1: power have we not covered that you can think of?

440
00:24:35,636 --> 00:24:38,076
Speaker 1: I think there's another what if we haven't covered? Which

441
00:24:38,156 --> 00:24:41,436
Speaker 1: is one thing that's very unclear as I understand it

442
00:24:41,476 --> 00:24:43,636
Speaker 1: in constitutional law, though I defer to you on this

443
00:24:44,156 --> 00:24:47,996
Speaker 1: is how specific need to pardon be. So can you

444
00:24:48,036 --> 00:24:51,596
Speaker 1: pardon someone for all crimes previously committed against the federal

445
00:24:51,596 --> 00:24:55,476
Speaker 1: government without at all specifying what those crimes are? That's

446
00:24:55,476 --> 00:24:59,276
Speaker 1: the so called blanket pardon, right, And I think that

447
00:24:59,276 --> 00:25:02,876
Speaker 1: that's another thing that we might see tested now, because

448
00:25:02,956 --> 00:25:06,436
Speaker 1: I'm fairly sure that if Trump decides to pardon people,

449
00:25:06,756 --> 00:25:10,876
Speaker 1: he's not going to enumera what crimes they may have committed.

450
00:25:10,956 --> 00:25:13,316
Speaker 1: This will certainly be true for himself or his children,

451
00:25:13,636 --> 00:25:17,916
Speaker 1: and probably for Giuliani as well. Whether or not you

452
00:25:17,956 --> 00:25:21,156
Speaker 1: can really say I pardon you for all crimes committed

453
00:25:21,236 --> 00:25:24,116
Speaker 1: either in the last four years or any time in

454
00:25:24,156 --> 00:25:28,476
Speaker 1: your life prior to this date, I don't know that

455
00:25:28,596 --> 00:25:31,756
Speaker 1: courts are gonna like that idea. But isn't that effectively

456
00:25:31,836 --> 00:25:34,676
Speaker 1: what gerald Ford's pardon of Richard Dixon was. I mean,

457
00:25:34,716 --> 00:25:38,276
Speaker 1: it didn't detail all of the specific things that Nixon

458
00:25:38,316 --> 00:25:40,556
Speaker 1: had done wrong. It just said he's off the hook.

459
00:25:40,916 --> 00:25:44,796
Speaker 1: It absolutely was at least inform but I'm wondering if

460
00:25:44,836 --> 00:25:48,276
Speaker 1: in practice it wasn't nevertheless, more clear what it was

461
00:25:48,356 --> 00:25:51,356
Speaker 1: he was actually being pardoned for. If let's say, along

462
00:25:51,396 --> 00:25:53,836
Speaker 1: the way, it had been discovered that Nixon had also

463
00:25:54,276 --> 00:25:57,516
Speaker 1: shot the White House butler while he was in office,

464
00:25:57,556 --> 00:26:00,196
Speaker 1: no one knew about it before, would people have thought

465
00:26:00,196 --> 00:26:03,996
Speaker 1: that that pardon covered that too, because it was stated

466
00:26:04,036 --> 00:26:06,796
Speaker 1: in such a general way. I'm not sure you're right.

467
00:26:06,836 --> 00:26:08,796
Speaker 1: I'm just called up the text of that pardon. It

468
00:26:08,836 --> 00:26:12,876
Speaker 1: does start by mentioning that there was a committee investigating

469
00:26:12,996 --> 00:26:15,356
Speaker 1: Nixon for impeachment purposes, that there was a lot of

470
00:26:15,396 --> 00:26:19,236
Speaker 1: coverage that as a result of acts or omissions as president,

471
00:26:19,956 --> 00:26:23,436
Speaker 1: Nixon is potentially liable. And it also goes on to

472
00:26:23,476 --> 00:26:26,436
Speaker 1: say that the trial you would take a long time,

473
00:26:26,516 --> 00:26:29,116
Speaker 1: and we need to re establish tranquility. That's all the

474
00:26:29,236 --> 00:26:33,076
Speaker 1: kind of like beginning stuff. But then the punchline, the

475
00:26:33,196 --> 00:26:37,756
Speaker 1: legal part, says, I, Gerald Ford, do grant a full,

476
00:26:37,836 --> 00:26:41,116
Speaker 1: free and absolute pardon unto Richard Nixon, I like the

477
00:26:41,196 --> 00:26:44,156
Speaker 1: unto for all offenses against the United States which he

478
00:26:44,156 --> 00:26:47,596
Speaker 1: has committed or may have committed or taken part in

479
00:26:48,276 --> 00:26:51,076
Speaker 1: during the period from January twenty, nineteen sixty nine today

480
00:26:51,116 --> 00:26:55,236
Speaker 1: he was inaugurated, through August nineteen seventy four. I don't

481
00:26:55,236 --> 00:26:59,836
Speaker 1: think any lawyer could have read that pardon as excluding

482
00:27:00,276 --> 00:27:04,036
Speaker 1: an unacknowledged act by Nixon like shooting the White House Butler.

483
00:27:04,076 --> 00:27:07,716
Speaker 1: It seems about as clear as legal language can get. All.

484
00:27:08,036 --> 00:27:11,236
Speaker 1: He's pardon for all offenses, right. I agree with you

485
00:27:11,276 --> 00:27:13,956
Speaker 1: that that's the wording of it. I guess what I'm asking, Noah,

486
00:27:14,036 --> 00:27:16,156
Speaker 1: maybe you're in a better position to answer this than me,

487
00:27:16,356 --> 00:27:19,916
Speaker 1: is would the court be open to the view that

488
00:27:19,956 --> 00:27:23,636
Speaker 1: the preamble in some way limits that and or that

489
00:27:23,716 --> 00:27:26,916
Speaker 1: a pardon that broad just can't be valid because you

490
00:27:26,956 --> 00:27:30,116
Speaker 1: can't just give absolution and say this person is permanently

491
00:27:30,156 --> 00:27:32,516
Speaker 1: above the law for all crimes, whether I knew about

492
00:27:32,516 --> 00:27:34,956
Speaker 1: them or not. Well, maybe you can. I mean, I

493
00:27:34,956 --> 00:27:38,076
Speaker 1: guess my own view on the constitutional issue would be,

494
00:27:38,996 --> 00:27:41,836
Speaker 1: though I would be very very unhappy about it. And

495
00:27:41,916 --> 00:27:43,636
Speaker 1: although I would love to be able to say that

496
00:27:43,636 --> 00:27:46,356
Speaker 1: the pardon power doesn't go that far. The origin of

497
00:27:46,356 --> 00:27:49,676
Speaker 1: the pardon power as precisely a kind of monarchic or

498
00:27:49,716 --> 00:27:54,916
Speaker 1: imperial get out of jail free card, allows the king, emperor,

499
00:27:54,956 --> 00:27:59,156
Speaker 1: president to say, yes, you're forgiven for everything. Now. The

500
00:27:59,236 --> 00:28:03,436
Speaker 1: one limitation that I think constitutional lawyers would accept is

501
00:28:03,436 --> 00:28:06,556
Speaker 1: that you can't preemptively pardon someone for acts they haven't

502
00:28:06,636 --> 00:28:09,996
Speaker 1: yet committed. You can't pardon someone or the future. And

503
00:28:10,036 --> 00:28:12,636
Speaker 1: if you think about it, that's not completely obvious that

504
00:28:12,636 --> 00:28:15,196
Speaker 1: that should be the case. I think the idea is

505
00:28:15,236 --> 00:28:17,916
Speaker 1: implicit in the idea of a pardon that you're pardoned

506
00:28:17,956 --> 00:28:20,636
Speaker 1: for past acts. You've done something wrong and now you're

507
00:28:20,676 --> 00:28:24,756
Speaker 1: pardoned for it, not I advance pardon you for something

508
00:28:24,756 --> 00:28:26,796
Speaker 1: that you're about to do in the future. You know,

509
00:28:26,796 --> 00:28:28,996
Speaker 1: if you're committing new offense, you have to be pardoned

510
00:28:28,996 --> 00:28:31,156
Speaker 1: for that again. But other than that, I think I'm

511
00:28:31,156 --> 00:28:34,636
Speaker 1: pretty open to the idea that the grandeur of the

512
00:28:34,716 --> 00:28:39,636
Speaker 1: pardon power, which I don't like, is nevertheless efficacious under

513
00:28:39,636 --> 00:28:43,076
Speaker 1: the Constitution. And now, what do you think about the

514
00:28:43,156 --> 00:28:47,876
Speaker 1: hypothetical wherein the president essentially promises I will pardon you

515
00:28:48,076 --> 00:28:50,276
Speaker 1: after you commit the crime we're going to do together.

516
00:28:51,116 --> 00:28:52,876
Speaker 1: That would be an impeachable act, that would be a

517
00:28:52,956 --> 00:28:55,036
Speaker 1: high crime and misdemeanor. For the president to say that,

518
00:28:55,316 --> 00:28:57,836
Speaker 1: it would not yet be the pardon. So if the

519
00:28:57,876 --> 00:28:59,956
Speaker 1: president made that promise to pardon, that's not the same

520
00:28:59,956 --> 00:29:02,476
Speaker 1: as the pardon. The pardon has to actually be issued, right,

521
00:29:02,516 --> 00:29:04,316
Speaker 1: I agree that that's not the pardon. But the question

522
00:29:04,396 --> 00:29:07,196
Speaker 1: is when the pardon comes around. Right, So, six weeks

523
00:29:07,276 --> 00:29:10,036
Speaker 1: later they've committed the crime, right, is an illegitimate person?

524
00:29:10,596 --> 00:29:14,116
Speaker 1: Is that pardon still legitimate given that it was agreed

525
00:29:14,156 --> 00:29:17,756
Speaker 1: to in advance together as essentially a conspiracy to commit

526
00:29:17,756 --> 00:29:20,796
Speaker 1: the crime? I mean as you said earlier when we

527
00:29:20,796 --> 00:29:24,676
Speaker 1: were talking about whether an illegally obtained pardon would be valid,

528
00:29:24,916 --> 00:29:27,716
Speaker 1: that is a really, really hard question, and the reason

529
00:29:27,716 --> 00:29:30,356
Speaker 1: it's so hard is that it just seems preposterous on

530
00:29:30,396 --> 00:29:35,556
Speaker 1: its face that something illegally, in this case, criminally obtained

531
00:29:36,396 --> 00:29:41,676
Speaker 1: would nevertheless be valid. The counter argument, though, is that

532
00:29:41,716 --> 00:29:43,796
Speaker 1: the whole point of the pardon power is that the

533
00:29:43,836 --> 00:29:47,196
Speaker 1: president has the capacity to put certain things above the law,

534
00:29:47,796 --> 00:29:50,316
Speaker 1: and so on that view, you could punish the president

535
00:29:50,396 --> 00:29:54,356
Speaker 1: for it. He would be impeachable. He would be probably

536
00:29:54,396 --> 00:29:58,156
Speaker 1: criminally prosecutable, certainly after his impeachment for that, if he

537
00:29:58,196 --> 00:30:02,276
Speaker 1: were removed from office, or if he left office. But

538
00:30:02,356 --> 00:30:04,756
Speaker 1: I have an instinct to say that it's possible that

539
00:30:04,796 --> 00:30:09,836
Speaker 1: the actual issued pardon would still be valid because he

540
00:30:09,916 --> 00:30:13,036
Speaker 1: was president when he did it, and that's a terrible conclusion.

541
00:30:13,036 --> 00:30:15,356
Speaker 1: I don't want to reach that conclusion because I don't

542
00:30:15,356 --> 00:30:18,756
Speaker 1: want the president to be able to effectively put himself

543
00:30:19,116 --> 00:30:23,036
Speaker 1: outside the law, or to put his accomplices outside the law.

544
00:30:23,796 --> 00:30:26,676
Speaker 1: But I guess I think probably that the pardon would

545
00:30:26,716 --> 00:30:29,556
Speaker 1: be efficacious. The difference is that a pardon of himself

546
00:30:29,596 --> 00:30:35,076
Speaker 1: wouldn't be efficacious, So he would himself still be criminally aliable. Seth.

547
00:30:35,116 --> 00:30:38,876
Speaker 1: I began by asking you about how prosecutors feel about pardons.

548
00:30:39,636 --> 00:30:41,996
Speaker 1: I want to conclude by asking you what it's like

549
00:30:42,036 --> 00:30:44,236
Speaker 1: when you're on the other side of defense, when you're

550
00:30:44,276 --> 00:30:48,276
Speaker 1: representing people who are charged with crimes, and sometimes even

551
00:30:48,276 --> 00:30:51,916
Speaker 1: complete guilty to crimes. Does the possibility of pardon enter

552
00:30:51,956 --> 00:30:54,156
Speaker 1: the minds of your clients? Does it enter your mind

553
00:30:54,196 --> 00:30:57,916
Speaker 1: when you think, Gosh, that client probably shouldn't have pleaded guilty.

554
00:30:58,356 --> 00:31:01,516
Speaker 1: Let's go try to get a pardon again. Pardons are

555
00:31:01,596 --> 00:31:04,196
Speaker 1: fairly rare, so I can't say that it enters my

556
00:31:04,236 --> 00:31:07,676
Speaker 1: mind as a strategy point, at least during the course

557
00:31:07,716 --> 00:31:10,596
Speaker 1: of a normal case. In a normal criminal case with

558
00:31:10,636 --> 00:31:13,996
Speaker 1: a defendant who's not connected to the president or governor,

559
00:31:14,476 --> 00:31:16,756
Speaker 1: the typical way a pardon comes down is that the

560
00:31:16,796 --> 00:31:21,396
Speaker 1: person first gets convicted, and then usually some significant time

561
00:31:21,436 --> 00:31:25,636
Speaker 1: has gone by and the person has somehow proven themselves

562
00:31:25,676 --> 00:31:28,996
Speaker 1: either to be innocent or reformed, and now you're making

563
00:31:28,996 --> 00:31:31,996
Speaker 1: a pitch to the governor or the president that that

564
00:31:32,076 --> 00:31:35,076
Speaker 1: person either should never have been convicted or somehow this

565
00:31:35,116 --> 00:31:38,036
Speaker 1: needs to be wiped in light of their tremendous and

566
00:31:38,236 --> 00:31:41,916
Speaker 1: unique service to the community that's happened since they were convicted,

567
00:31:42,396 --> 00:31:46,836
Speaker 1: so it's typically long after the prosecution has already been concluded.

568
00:31:47,836 --> 00:31:50,276
Speaker 1: Is it something that people think about? I think even

569
00:31:50,396 --> 00:31:55,316
Speaker 1: most clients desperate for any port in a storm in

570
00:31:55,356 --> 00:31:58,596
Speaker 1: the middle of a criminal case usually get that it's

571
00:31:58,596 --> 00:32:01,076
Speaker 1: so unlikely and so far in the future that that's

572
00:32:01,116 --> 00:32:03,676
Speaker 1: not the dream they're first thinking of. Do they think

573
00:32:03,676 --> 00:32:06,956
Speaker 1: about it eventually? I think, particularly for well connected people,

574
00:32:07,196 --> 00:32:09,716
Speaker 1: and I don't mean people connected directly to the governor

575
00:32:09,796 --> 00:32:12,796
Speaker 1: or the president, but people who are the kinds of

576
00:32:12,796 --> 00:32:14,956
Speaker 1: people who are my clients typically, which is to say,

577
00:32:15,676 --> 00:32:20,636
Speaker 1: well connected, white collar, highly paid professionals. They've grown up

578
00:32:20,636 --> 00:32:25,436
Speaker 1: their whole life with the understanding and the accuracy generally

579
00:32:25,516 --> 00:32:28,796
Speaker 1: that if they keep working at something and keep pushing levers,

580
00:32:28,836 --> 00:32:31,516
Speaker 1: they can make progress at whatever their goals might be.

581
00:32:32,116 --> 00:32:35,076
Speaker 1: And I think those people also feel that way sometimes

582
00:32:35,116 --> 00:32:39,036
Speaker 1: about pardons. After the fact, this is the most horrible

583
00:32:39,116 --> 00:32:41,636
Speaker 1: thing they went through probably in their life. It's the

584
00:32:41,716 --> 00:32:45,836
Speaker 1: thing that most besmirches their record, and they'd love to

585
00:32:45,836 --> 00:32:47,476
Speaker 1: get it taken off. And I do think that some

586
00:32:47,516 --> 00:32:51,036
Speaker 1: of those people do try to work the system, work

587
00:32:51,076 --> 00:32:54,396
Speaker 1: their connections, work anything to get it removed from their

588
00:32:54,436 --> 00:32:57,876
Speaker 1: record before they die, or even sometimes after they've died,

589
00:32:57,916 --> 00:33:00,676
Speaker 1: their errors will try to do that, which is really

590
00:33:00,676 --> 00:33:04,756
Speaker 1: a symbolic pardon entireleasins it matters no longer. But there

591
00:33:04,796 --> 00:33:08,036
Speaker 1: are these posthumous pardons also. The answer is it doesn't

592
00:33:08,036 --> 00:33:10,596
Speaker 1: come up that often, but it is something that people,

593
00:33:11,036 --> 00:33:13,996
Speaker 1: particularly well connected people, do think about, and it is

594
00:33:14,236 --> 00:33:17,516
Speaker 1: sometimes used even for the not well connected. For the

595
00:33:17,556 --> 00:33:20,836
Speaker 1: safety valve reasons. We began the conversation with Seth. I

596
00:33:20,836 --> 00:33:23,236
Speaker 1: just want to thank you, as always for stimulating my

597
00:33:23,276 --> 00:33:25,516
Speaker 1: thinking so much, for teaching us so much, and for

598
00:33:25,556 --> 00:33:29,076
Speaker 1: giving us the perspective from inside the criminal justice system

599
00:33:29,076 --> 00:33:31,316
Speaker 1: on both sides of the fence. Thank you, Thank you.

600
00:33:31,356 --> 00:33:40,476
Speaker 1: No as a pleasure speaking to Seth always gets my

601
00:33:40,636 --> 00:33:44,676
Speaker 1: brain churning. In this conversation, I walked away with a

602
00:33:44,756 --> 00:33:48,356
Speaker 1: sense that actually the part in power is potentially even

603
00:33:48,436 --> 00:33:50,636
Speaker 1: worse than I've always thought it was, and that is

604
00:33:50,636 --> 00:33:53,876
Speaker 1: really saying something. In the past, I've always focused on

605
00:33:53,956 --> 00:33:57,196
Speaker 1: the undemocratic nature of the idea that the president is

606
00:33:57,236 --> 00:34:00,276
Speaker 1: like a king or an emperor or a pope and

607
00:34:00,396 --> 00:34:04,276
Speaker 1: can effectively step outside of the law to pardon people.

608
00:34:04,836 --> 00:34:06,796
Speaker 1: The counterargument, of course, is that it's good for there

609
00:34:06,796 --> 00:34:10,516
Speaker 1: to be mercy somewhere in the system. But talking to

610
00:34:10,556 --> 00:34:13,236
Speaker 1: Seth really made me realize that a president who was

611
00:34:13,316 --> 00:34:15,516
Speaker 1: clever about it and thought he could get away with it,

612
00:34:15,716 --> 00:34:18,956
Speaker 1: could use the pardon power much more aggressively even than

613
00:34:19,036 --> 00:34:22,436
Speaker 1: Donald Trump has done, and could use it to facilitate

614
00:34:22,676 --> 00:34:26,036
Speaker 1: all kinds of criminal activity, either on his own behalf

615
00:34:26,396 --> 00:34:29,196
Speaker 1: or on behalf of the policies that he wants by

616
00:34:29,396 --> 00:34:35,036
Speaker 1: immunizing people against potential criminal prosecution through guarantees to them

617
00:34:35,356 --> 00:34:39,236
Speaker 1: that he would pardon them. At the same time, Donald

618
00:34:39,236 --> 00:34:43,116
Speaker 1: Trump hasn't gone quite that far, and even some of

619
00:34:43,156 --> 00:34:46,236
Speaker 1: the pardons that he's talking about potentially issuing now have

620
00:34:46,476 --> 00:34:49,676
Speaker 1: some precedent in the last days of Bill Clinson's administration.

621
00:34:50,196 --> 00:34:51,996
Speaker 1: For the next six weeks, we're all going to be

622
00:34:52,036 --> 00:34:56,876
Speaker 1: watching closely to see whom Trump pardons. It may come

623
00:34:56,916 --> 00:35:00,876
Speaker 1: down to his last day in office. Here at Deep

624
00:35:00,916 --> 00:35:03,316
Speaker 1: Background will keep a careful eye on it and will

625
00:35:03,356 --> 00:35:06,196
Speaker 1: come back to talk about it more if there are

626
00:35:06,276 --> 00:35:09,716
Speaker 1: major surprises. Until the next time I speak to you,

627
00:35:10,156 --> 00:35:16,436
Speaker 1: be careful, be safe, and be well. Deep Background is

628
00:35:16,436 --> 00:35:19,916
Speaker 1: brought to you by Pushkin Industries. Our producer is Lydia Gencott,

629
00:35:20,196 --> 00:35:23,436
Speaker 1: our engineer is Martin Gonzalez, and our showrunner is Sophie

630
00:35:23,476 --> 00:35:27,316
Speaker 1: Crane mckibbon. Theme music by Luis Guerra at Pushkin. Thanks

631
00:35:27,356 --> 00:35:31,316
Speaker 1: to Mia Lobell, Julia Barton, Heather Faine, Carlie mcgliori, Mackie Taylor,

632
00:35:31,476 --> 00:35:34,276
Speaker 1: Eric Sandler, and Jacob Weisberg. You can find me on

633
00:35:34,316 --> 00:35:37,036
Speaker 1: Twitter and Noah Rfeld. I also write a column for

634
00:35:37,076 --> 00:35:40,596
Speaker 1: Bloomberg Opinion, which you can find at Bloomberg dot com slashfeld.

635
00:35:41,276 --> 00:35:44,596
Speaker 1: To discover Bloomberg's original slate of podcasts, go to Bloomberg

636
00:35:44,636 --> 00:35:47,516
Speaker 1: dot com slash podcasts, and if you liked what you

637
00:35:47,596 --> 00:35:50,156
Speaker 1: heard today, please write a review or tell a friend.

638
00:35:50,556 --> 00:35:51,876
Speaker 1: This is deep background