Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show
Speaker 1: where we explore the stories behind the stories in the news.
Speaker 1: I'm Noah Feldman. Donald Trump has about six weeks left
Speaker 1: in office, and one way he may use some of
Speaker 1: that time is by issuing pardons. It's been reported that
Speaker 1: he's had conversations about partnering his lawyer, Rudy Giuliani, about
Speaker 1: partnering his children, and in the background is also something
Speaker 1: that Trump has said in the past, namely that he
Speaker 1: would have the power to pardon himself. To discuss presidential
Speaker 1: pardons and what Trump can and cannot do, I'm joined
Speaker 1: by Seth Berman. Seth is a former state and federal prosecutor.
Speaker 1: He's a visiting lecturer at Harvard Law School, and he's
Speaker 1: a partner at the law firm Nutter, McLennan and Fish,
Speaker 1: the firm originally founded by Justice Louis Brandon's. Seth was
Speaker 1: on Deep Background last fall to talk about the impeachment
Speaker 1: inquiry into Trump's presidency and woe have things changed a
Speaker 1: lot since then. Seth remains my go to person for
Speaker 1: all matters criminal and I'm thrilled to have him. Seth,
Speaker 1: thank you so much for coming back on the podcast,
Speaker 1: you were a prosecutor for a long time. You were
Speaker 1: an assistant district attorney in New York, and then you
Speaker 1: were an assistant US attorney in Boston. How do prosecutors
Speaker 1: feel about the pardon power? You know, in truth, no,
Speaker 1: I think most prosecutors feel nothing about it. The pardon
Speaker 1: is used so rarely that as a normal prosecutor, you
Speaker 1: almost never come across a pardon as a practical matter.
Speaker 1: In other words, I think prosecutors have very little contact
Speaker 1: with the pardon power. To those of us who think
Speaker 1: theoretically about these things, you know, it's a little odd,
Speaker 1: and a lot of it depends on, obviously, whether or
Speaker 1: not you think that a pardon was granted for a
Speaker 1: good reason or a bad reason. It feels like and
Speaker 1: it is a get out of jail free card. So
Speaker 1: if you think that someone shouldn't get out of jail free,
Speaker 1: the pardon seems wrong. I think that those of us
Speaker 1: who are thoughtful as prosecutors do understand that there are
Speaker 1: times when the criminal justice system ends up with results
Speaker 1: that may not be just, and the pardon power can
Speaker 1: be a way of addressing that when the system otherwise
Speaker 1: fails and I think this is particularly important in our system,
Speaker 1: where appeals are almost always essentially based on legal issues
Speaker 1: and not factual issues. So once a person has been convicted,
Speaker 1: the fact that facts themselves may look different years later
Speaker 1: is not generally a way out of a criminal conviction.
Speaker 1: So one way that the pardon power can come in
Speaker 1: handy is when you sort of have an underlying question
Speaker 1: about a prosecution, perhaps after the fact that the appeal
Speaker 1: system isn't so well able to handle. There are other
Speaker 1: ways of handling it, but the pardon power is one
Speaker 1: safety valve that I think has an important role. There
Speaker 1: are a bunch of really interesting things you said there.
Speaker 1: I want to go backwards. You were saying at the
Speaker 1: end that one of the reasons it's good to have
Speaker 1: the part in power is that sometimes the system blows it.
Speaker 1: Sometimes the wrong person gets convicted, stays in prison for
Speaker 1: a long time, and there's no simple way to get
Speaker 1: them out by arguing to a court that they were
Speaker 1: actually innocent the whole time. I think that's kind of
Speaker 1: counterintuitive to non lawyers. I think they think that, you know,
Speaker 1: if later on evidence comes up like a cold case,
Speaker 1: you know, you go to the authorities and they magically
Speaker 1: spring the person out of prison. But the reality, as
Speaker 1: you were saying, is otherwise. It's that you really need
Speaker 1: a legal reason usually to get someone out of prison,
Speaker 1: and the mere fact that they were wrongfully convicted on
Speaker 1: the facts isn't usually enough to get them out. That
Speaker 1: seems like it would be a really good use of
Speaker 1: the part in power. How often is the pardon power
Speaker 1: used that way? Rarely, and probably at the federal level
Speaker 1: even more rarely. The pardon power exists not only for
Speaker 1: the president, but governors typically also have a pardon power,
Speaker 1: and since most prosecutions are actually at the state level,
Speaker 1: the pardon powers probably more often used at the state
Speaker 1: level than at the federal level. Maybe we should create
Speaker 1: by legislation some special commission for reinvestigating those rare cases
Speaker 1: where you can prove that the person didn't really do it,
Speaker 1: and then we could move away from the pardon power,
Speaker 1: which you know, as you mentioned, it's to get out
Speaker 1: of jail free card. And it seems very monarchic or
Speaker 1: emperor like, and in fact that's where it comes from.
Speaker 1: I mean the founding fathers when they put the pardon
Speaker 1: power into the constitution. We're thinking of the King of
Speaker 1: England and the Kings of England. We're thinking about the
Speaker 1: Emperor of Rome, and there's a kind of by my
Speaker 1: Great justice and mercy I hereby pardon new thing going
Speaker 1: on there which seems really out of step with the
Speaker 1: idea of democratic or republican government. I certainly agree with that.
Speaker 1: I mean, the pardon power, at least in its broadest interpretation,
Speaker 1: seems like it is at least as ripe for abuse
Speaker 1: as it is for the use that I just described.
Speaker 1: And I agree that a better way to resolve that
Speaker 1: would be to institutionalize the safety valve aspect in some
Speaker 1: other way, which we really haven't done as part of
Speaker 1: the criminal justice system. And I think partly because of
Speaker 1: institutions like the Innocence Project. It is something that's now
Speaker 1: on the radar screen because we now have an understanding
Speaker 1: that more people are convicted of crimes they didn't commit
Speaker 1: than we should feel comfortable about. With that fact, it
Speaker 1: sort of invites a weight what is our long term
Speaker 1: solution to this. There is some attempt to try to
Speaker 1: regularize the pardon power, So there's in the Department of
Speaker 1: Justice a part in office, and if you want a
Speaker 1: pardon for your client, you're supposed to go to that
Speaker 1: office and file an official request, and they're supposed to
Speaker 1: be like an actual bureaucratic process of evaluation and analysis,
Speaker 1: which would then make its way eventually to the White
Speaker 1: House worthwhile cases, and if presidents just developed the custom
Speaker 1: of only pardoning people who'd gone through that process, then
Speaker 1: we might be able to solve some of the problem
Speaker 1: of the apparently arbitrary and potentially corrupt use of pardons
Speaker 1: by presidents. Why hasn't that really worked so far? Well,
Speaker 1: I think we should actually break that down into two
Speaker 1: time periods, right, which is like the before Trump time
Speaker 1: period and what we're worried about now. Before Trump, I think,
Speaker 1: to some extent that is how pardons worked, but it
Speaker 1: was never the only way pardons worked. Didn't Bill Clinton
Speaker 1: get into a lot of trouble At the end of
Speaker 1: the very last day in office, he pardoned people, including
Speaker 1: the financier Mark Rich, And then there was a whole
Speaker 1: investigation run actually by Jim Comey of what had happened.
Speaker 1: Absolutely so Clint got in trouble for that. He also
Speaker 1: pardoned his half brother who had been convicted of various
Speaker 1: drug crimes over the years, and George hw Bush before
Speaker 1: that pardoned the people who'd been in the Iran contrast scandal,
Speaker 1: as recommended by Bill Barr exactly. So I think there
Speaker 1: have always been people close to the president who got
Speaker 1: pardons as a parting gift, and I think everyone has
Speaker 1: long understood that the transition period, in the waning days
Speaker 1: of an administration is a time to start giving these
Speaker 1: gifts because there's little cost in doing so. You give them,
Speaker 1: your political career is typically over at that point, so
Speaker 1: it kind of doesn't matter. And even for the ones
Speaker 1: that caused an uproar at the time, those uproars go away.
Speaker 1: And you know, I don't think any historian rights of
Speaker 1: a president he was a great president except for those
Speaker 1: pardons he gave at the end of his term. Right,
Speaker 1: No one thinks of it as that important in the
Speaker 1: grand scheme of time. So if you're a regular person,
Speaker 1: you're a drug dealer, let's say, who's reformed, and you're
Speaker 1: deserving of a pardon in the for the whatever normal
Speaker 1: reasons one might be deserving of a pardon, that goes
Speaker 1: to the pardon office. But if you're a friend to
Speaker 1: the president or the other person Clinton pardoned somewhat controversially
Speaker 1: was Susan McDougall, who had been called to testify by
Speaker 1: the Whitewater investigation by Ken Starr, had refused to testify,
Speaker 1: had gone to jail for refusing to testify, and he
Speaker 1: ultimately pardoned her, so that Susan McDougall was rewarded for
Speaker 1: not testifying against Clinton. Interestingly, Susan McDougall's husband had gone
Speaker 1: the other way. He had cooperated. I think he did
Speaker 1: actually get convicted of a crime as part of that cooperation,
Speaker 1: and he was not pardoned by Clinton. Now it sounds
Speaker 1: like Clinton was really not so much better than we're
Speaker 1: worried that Trump would be. I mean family members. Check
Speaker 1: person who stonewalled in an investigation that went directly to
Speaker 1: criminality by the president. Check Rich Crony, whom we may
Speaker 1: not have known personally, but who knew people who knew
Speaker 1: him really well. Check. We have become a customed for
Speaker 1: four years to saying that Donald Trump is the worst
Speaker 1: of everything. But this sounds like an instance where it
Speaker 1: might not be that much worse than Clinton. Well, I
Speaker 1: think that to some degree it's a difference of degree
Speaker 1: rather than kind. What feels a little bit different here
Speaker 1: is that. First of all, Trump has floated publicly the
Speaker 1: pardon power in ways that seemed like he was publicly saying,
Speaker 1: if you don't turn on me, I will pardon you.
Speaker 1: And he has even said things like to agents of ice,
Speaker 1: he said, you know, you do whatever you want at
Speaker 1: the border. If you get arrested or you do anything illegal,
Speaker 1: all pardon you, which begins to feel like it's not
Speaker 1: just a get out of jail free card for the
Speaker 1: folks who are around him, but essentially a means of
Speaker 1: allowing the president to potentially commit crimes and face no consequences.
Speaker 1: That does sound like a difference of kind rather than
Speaker 1: of degree. So let's talk about whether the president can
Speaker 1: get himself into legal trouble around the pardon power. Is
Speaker 1: there a way that the president could grant a pardon
Speaker 1: that would itself constitute a crime? So the answer to
Speaker 1: that is probably yes, although as with everything with the president,
Speaker 1: you always have at best a probably. So. The easiest
Speaker 1: and most obvious way to do that is that there
Speaker 1: are a bunch of different crimes which happen when a
Speaker 1: public official essentially accepts something of value in return for
Speaker 1: doing their job or for doing something that they're supposed
Speaker 1: to do or are able to do. I should say so.
Speaker 1: For example, if the president decided to take a cash
Speaker 1: bribe in return for giving out pardons, like you just
Speaker 1: put them on sale on eBay and said, anyone who
Speaker 1: wants to pardon, the opening bid is a million dollars
Speaker 1: and you let me know that presumably would violate the
Speaker 1: bribery laws that prohibit a public official from taking money
Speaker 1: in return for doing some good they're allowed to do
Speaker 1: in their job, something they're allowed to do. You always
Speaker 1: have the problem with the president that the president is
Speaker 1: unique in the constitutional structure, and as a result, it's
Speaker 1: not always perfectly clear that a law that would apply
Speaker 1: to any other government official also applies to the president.
Speaker 1: I think that it would, but you can imagine room
Speaker 1: for a court to say that the president is so unique,
Speaker 1: the pardon power is so broad that he can do
Speaker 1: anything even that if he wants to. Although it is
Speaker 1: hard for me to believe a court saying about a
Speaker 1: president who's out of all and is being charged with
Speaker 1: a crime that it was okay for him to take
Speaker 1: money in exchange for giving a pardon, even if he
Speaker 1: has the pardon power. I mean, as you were saying
Speaker 1: the bribery Statute applies ordinarily to people in the government
Speaker 1: doing things that are within their lawful power, but doing
Speaker 1: it for corrupt reasons. This is one of the things
Speaker 1: that immediately came to my mind when I read the
Speaker 1: story that Rudy Giuliani and the President we're talking about
Speaker 1: a potential pardon. As I always do whenever I think
Speaker 1: there's a crime of foot I immediately made my first
Speaker 1: and only call to you, and I said, wait a minute,
Speaker 1: isn't this a crime? And you said, yeah, it could
Speaker 1: be a crime because the President owes Giuliani a lot
Speaker 1: of money for representation, and that could be construed as
Speaker 1: in some way a gift. The pardon could be a
Speaker 1: gift in exchange for the services, the legal services that
Speaker 1: Giuliani has rendered to the president. I think that that
Speaker 1: is true. And if you're asking me, as a prosecutor,
Speaker 1: would I prosecute that case. The answer, depending on the facts,
Speaker 1: is yes, if I could prove the facts as you
Speaker 1: just des them. But I still think that there is
Speaker 1: at least room for the President to argue that the
Speaker 1: pardon power is not like other powers. You know, if
Speaker 1: you're the city manager and you can give out permits
Speaker 1: to build buildings. Right, You're supposed to give out those
Speaker 1: permits only when they're warranted, not when you get a bribe.
Speaker 1: But the pardon power is not so limited. It seems
Speaker 1: to say you could do it anytime you want. Do
Speaker 1: I actually think that the Supreme Court would hold that that's,
Speaker 1: you know, crime doesn't cover the president. I highly doubt it,
Speaker 1: but I can't say that it's impossible to make that argument.
Speaker 1: And I've been surprised by how many of these expansive
Speaker 1: presidential arguments seem to have more legs than I thought
Speaker 1: they would prior to this president. Even if it were
Speaker 1: a crime to buy a pardon, is it possible that
Speaker 1: the pardon would still have effect even though a person
Speaker 1: achieved it and bought it criminally. I think almost any
Speaker 1: question that starts with would a pardon have power if?
Speaker 1: And then so hypothetical? The answer to that almost always
Speaker 1: is no court has ever adjudicated that issue. Right, So
Speaker 1: we have seen pardons that were given to broad groups
Speaker 1: of people. Jimmy Carter famously pardoned all of the people
Speaker 1: who had avoided the draft and fled to Canada. No
Speaker 1: one had ever pardoned quite that many people. Although I
Speaker 1: think George Washington actually pardoned people who were involved in
Speaker 1: the Whiskey rebellion, but it wasn't so many people. Is
Speaker 1: that absolutely an ironclad pardon? Everyone acted like it was.
Speaker 1: None of those people got prosecuted, So no judge ever
Speaker 1: answered whether or not that is a legitimate pardon. I
Speaker 1: think that that's part of the answer here. We don't
Speaker 1: really know. I suspect a court would try hard to
Speaker 1: invalidate that pardon, because how could you let that pardon stand,
Speaker 1: the bribery pardon. Do we know that it's invalid? I
Speaker 1: don't think we know that. You're building now to another
Speaker 1: pardon hypothetical, which is very much on everybody's minds these days,
Speaker 1: although we've been talking about it now for almost four years,
Speaker 1: and that is what if on the way out the door,
Speaker 1: Donald Trump pardons not only his friends, his family, his associates,
Speaker 1: ice agents, but himself. I have been on the record
Speaker 1: since the very beginning of this saying again and again
Speaker 1: in my columns, no, the president cannot pardon himself. A
Speaker 1: pardon is ultimately something you do to another person. It's
Speaker 1: a transitive verb. You pardon another person. You don't self
Speaker 1: pardon it's not logical, and it wouldn't have existed under
Speaker 1: British law, in part because you couldn't prosecute the king
Speaker 1: in the first place under a British law. Not everybody
Speaker 1: agrees with me on this subject, needless to say, where
Speaker 1: do you come down, Seth. Do you think the president
Speaker 1: could pardon himself and if so, that it would subsequently
Speaker 1: be respected by prosecutors so that it never went to court,
Speaker 1: or alternatively wouldn't be respected by prosecutors, and then a
Speaker 1: court would have to rule on it. I think the
Speaker 1: Biden administration, whether the President pardons himself or not, will
Speaker 1: be under great pressure both to prosecute and not to
Speaker 1: prosecute the president, and my guess is that they will
Speaker 1: decide to sidestep the issue and not prosecute him for
Speaker 1: the same reason that Ford decided to stop all prosecutions
Speaker 1: against Nixon, which is sort of we need to move
Speaker 1: on and we can't let the next four years be
Speaker 1: about the last four years. And I think that will
Speaker 1: probably carry the day at the federal level. What I
Speaker 1: actually wonder, though, Noah, is if Trump does pardon himself,
Speaker 1: I almost feel like at that point you almost have
Speaker 1: to prosecute him to try to prove that he couldn't
Speaker 1: pardon himself, because the self pardon is so outrageous as
Speaker 1: an idea, and the consequence of it is that a
Speaker 1: president can literally be lawless because while he's president, we
Speaker 1: say he can't be federally prosecuted, and then after he's
Speaker 1: president he can pardon himself on the way out the door.
Speaker 1: He could do anything and pardon himself. He could deal
Speaker 1: the election, as Trump is trying to do, but perhaps
Speaker 1: he could succeed and then pardon himself. He could shoot
Speaker 1: his opponent and pardon himself as long as he didn't
Speaker 1: violate a state crime in the process. So you're actually
Speaker 1: saying something counterintuitive that I hadn't really thought of before.
Speaker 1: You're saying, if the president were to pardon himself, he
Speaker 1: actually increases the risks that he'll be prosecuted, because if
Speaker 1: he doesn't pardon himself, the Biden administration will probably, all
Speaker 1: things considered, say it's time to move on. But on
Speaker 1: the other end, if he pardons himself, it just looks
Speaker 1: so outrageous and it creates such a disastrous precedent that
Speaker 1: if they have something, they can go after him for
Speaker 1: that would actually give them a reason to go after him.
Speaker 1: I think that's a fascinating idea. I mean, I think
Speaker 1: that they may decide to pass on it just the same,
Speaker 1: but I think the temptation to respond, particularly if there's
Speaker 1: a big uproar about it, will be much larger, and
Speaker 1: it'll be a lot easier to say, wait a minute,
Speaker 1: that's beyond the pail, right, like we're willing to let
Speaker 1: this slide. Perhaps, but you can't just say I can
Speaker 1: do anything as president and no one can ever do
Speaker 1: anything about it. Afterwards, We'll be right back. You mentioned
Speaker 1: Gerald Ford. He granted the most famous pardon in all
Speaker 1: of US history when he pardoned Richard Nixon. And the
Speaker 1: official optimistic version of that is that he wanted the
Speaker 1: country to move on. The more conspiracy theory view is that, look,
Speaker 1: Richard Nixon made Gerald Ford his vice president and then
Speaker 1: he resigned, and then Ford pardoned him. Surely, for someone
Speaker 1: like Richard Nixon, the fix was in in some way,
Speaker 1: either an explicit agreement with Ford or an implicit agreement
Speaker 1: with Ford to pardon him. In retrospect, how does that
Speaker 1: pardon look to you at a distance now, of you know,
Speaker 1: pushing fifty years. You know, was that a good thing
Speaker 1: for the country that we moved on or was it
Speaker 1: a preposterous thing that one of our most criminal presidents,
Speaker 1: at least until Donald Trump, just got away with everything.
Speaker 1: You know. One of the things I think that's very
Speaker 1: different between Nixon and Trump is that Nixon didn't really
Speaker 1: get away with everything right Nixon. Nixon had to resign,
Speaker 1: he lost the presidency and was publicly humiliated as a result.
Speaker 1: Trump goes out of office, he lost, but he goes
Speaker 1: out of office beloved by a shockingly high percent of
Speaker 1: the country, with a political party one hundred percent behind him.
Speaker 1: So far as we can tell, he hasn't been humiliated
Speaker 1: at all. He hasn't appeared to lose anything other than
Speaker 1: an election. But that happens to presidents, not because of
Speaker 1: this sort of thing. So I think the situation is
Speaker 1: a bit different, And the argument in favor of letting
Speaker 1: Nixon not get prosecuted may have been stronger than it
Speaker 1: is for Trump, because you didn't really think that Nixon
Speaker 1: got away with it right. He really didn't get way
Speaker 1: with it. He just didn't go to jail. So on
Speaker 1: that view, maybe we did it wrong. You know, maybe
Speaker 1: Nixon needed to go to prison so that future presidents
Speaker 1: wouldn't think, Okay, I'll be embarrassed, but you know, I
Speaker 1: won't have to actually pay the price. I basically agree
Speaker 1: with that, Noah, at least as it looks right now
Speaker 1: at this moment in history. In fact, I think one
Speaker 1: can make an argument for many of the pardons that
Speaker 1: have been used before that in retrospect, they all feel
Speaker 1: like a stepping stone to the point where we get
Speaker 1: to where a president thinks he can pardon himself. I
Speaker 1: think you could say something similar about Jimmy Carter's blanket pardon,
Speaker 1: or either Bushes or Clinton's pardon of sort of people
Speaker 1: involved in investigations of them, that it looks more and
Speaker 1: more deliberate now, and it's kind of become accepted because
Speaker 1: of those old pardons, Like it feels now like it
Speaker 1: was a slippery slope that had to end. Here. Seth,
Speaker 1: as we talk this through characteristically, you're raising issues that
Speaker 1: really make me think. And here are two thoughts. One
Speaker 1: is the pardon power isn't just symbolically dangerous. You know,
Speaker 1: president looks too much like a king. President can put
Speaker 1: himself above the law. It's very practically dangerous. If a
Speaker 1: president invited federal government employees to commit crimes on his
Speaker 1: behalf and publicly or privately promised them pardons, that really
Speaker 1: would allow a president to break the rule of law
Speaker 1: system in a pretty totalizing way. So that's scarier than
Speaker 1: I usually think about it as being. But that leads
Speaker 1: to a second thought, which is, why didn't Donald Trump
Speaker 1: really do that? I mean, he did say to the
Speaker 1: Ice agents, do what you need to do, but that
Speaker 1: wasn't for personal benefit. That was part of his outrageous
Speaker 1: antiimmigrant sentiment. He hinted clearly at various associates of his
Speaker 1: that they shouldn't testify and that he would reward them
Speaker 1: with pardons. But as far as we know, at least,
Speaker 1: he didn't directly say to anybody, just go ahead and
Speaker 1: break the law on my behalf and don't worry, I
Speaker 1: will pardon you. Why didn't Trump? This is speculative. Why
Speaker 1: didn't Trump abuse the pardon the system more during his
Speaker 1: four years in office than he actually did. It's always
Speaker 1: dangerous before a presidency has even ended to start discussing
Speaker 1: how historians will look back on it. So with that caveat,
Speaker 1: I'm going to go ahead and make that statement anyway.
Speaker 1: I think that when we look back on the presidency
Speaker 1: of Donald Trump, one thing that will be remembered is
Speaker 1: how Trump, deliberately or otherwise, was a genius at slowly
Speaker 1: raising the temperature of his outrageous behavior, and by raising
Speaker 1: the temperature slowly, he allowed the Republican Party to get
Speaker 1: used to a higher temperature of outrageousness. I think if
Speaker 1: on day one he had walked in and said I
Speaker 1: will pardon you, or you know, if he had fired
Speaker 1: Muller on day one, he might well have gotten impeached
Speaker 1: right then, and he might well have been convicted in
Speaker 1: that impeachment. But over time, as more and more Republicans
Speaker 1: came of the view that they would pretend not to
Speaker 1: hear and pretend not to see the stuff that was
Speaker 1: going on, the level of tolerance for things they were
Speaker 1: prepared to not hear and see went up. And I'm
Speaker 1: not sure that prior to the end of his presidency
Speaker 1: there was that tolerance for an outrageous use of the
Speaker 1: pardon power. But we've clearly reached the point where there
Speaker 1: might be. Now do you think we could ever get
Speaker 1: support for a constitutional amendment to take away or limit
Speaker 1: the president's pardon power. I mean, let's say Donald Trump
Speaker 1: pardons himself in ten or twenty years, you know, when
Speaker 1: Trump himself is no longer on the political scene, and assume,
Speaker 1: for the sake of argument, that later Republicans end up
Speaker 1: repudiating Trump, which I understand it seems like wishful thinking
Speaker 1: right now, but it might turn out to be the
Speaker 1: case historically. Do you think that would be the kind
Speaker 1: of act that could actually motivate Americans to vote for
Speaker 1: an amendment that says none of this anymore, it's not democratic.
Speaker 1: I think it's possible, but it's pretty hard to know
Speaker 1: right now. The thing that might make it happen is
Speaker 1: if a democratic president also use the pardon power in
Speaker 1: a way that Republicans found outrageous, and some the people
Speaker 1: could say, gee, you know, that's not so good. I mean,
Speaker 1: I do think it's going to be interesting to see
Speaker 1: how a bunch of political actors and judges who've been
Speaker 1: very deferential to presidential power when it was wielded by
Speaker 1: Donald Trump. I wonder how deferential they'll be when it's
Speaker 1: wielded by Joe Biden. And I think to a large extent,
Speaker 1: they won't be so deferential. So it's possible that when
Speaker 1: we get past this strange interregnum between presidents and we're
Speaker 1: fully into a Biden administration, that some of the support
Speaker 1: for the president can do anything because he's president will
Speaker 1: start fading from conservative circles. Just as you know, Obama
Speaker 1: was a tyrant in their view for executive orders that
Speaker 1: were nowhere near so weeping as Trump's executive orders, and
Speaker 1: yet when Trump issued them, they were his absolute right
Speaker 1: as president. You know, it'll be interesting to see how
Speaker 1: that plays out and whether we see over time a
Speaker 1: rethinking and maybe even a willingness to work together to
Speaker 1: reign in the power of the presidency so neither party
Speaker 1: has to deal with what they believe to be the
Speaker 1: dictator on the other side, What aspect of the pardon
Speaker 1: power have we not covered that you can think of?
Speaker 1: I think there's another what if we haven't covered? Which
Speaker 1: is one thing that's very unclear as I understand it
Speaker 1: in constitutional law, though I defer to you on this
Speaker 1: is how specific need to pardon be. So can you
Speaker 1: pardon someone for all crimes previously committed against the federal
Speaker 1: government without at all specifying what those crimes are? That's
Speaker 1: the so called blanket pardon, right, And I think that
Speaker 1: that's another thing that we might see tested now, because
Speaker 1: I'm fairly sure that if Trump decides to pardon people,
Speaker 1: he's not going to enumera what crimes they may have committed.
Speaker 1: This will certainly be true for himself or his children,
Speaker 1: and probably for Giuliani as well. Whether or not you
Speaker 1: can really say I pardon you for all crimes committed
Speaker 1: either in the last four years or any time in
Speaker 1: your life prior to this date, I don't know that
Speaker 1: courts are gonna like that idea. But isn't that effectively
Speaker 1: what gerald Ford's pardon of Richard Dixon was. I mean,
Speaker 1: it didn't detail all of the specific things that Nixon
Speaker 1: had done wrong. It just said he's off the hook.
Speaker 1: It absolutely was at least inform but I'm wondering if
Speaker 1: in practice it wasn't nevertheless, more clear what it was
Speaker 1: he was actually being pardoned for. If let's say, along
Speaker 1: the way, it had been discovered that Nixon had also
Speaker 1: shot the White House butler while he was in office,
Speaker 1: no one knew about it before, would people have thought
Speaker 1: that that pardon covered that too, because it was stated
Speaker 1: in such a general way. I'm not sure you're right.
Speaker 1: I'm just called up the text of that pardon. It
Speaker 1: does start by mentioning that there was a committee investigating
Speaker 1: Nixon for impeachment purposes, that there was a lot of
Speaker 1: coverage that as a result of acts or omissions as president,
Speaker 1: Nixon is potentially liable. And it also goes on to
Speaker 1: say that the trial you would take a long time,
Speaker 1: and we need to re establish tranquility. That's all the
Speaker 1: kind of like beginning stuff. But then the punchline, the
Speaker 1: legal part, says, I, Gerald Ford, do grant a full,
Speaker 1: free and absolute pardon unto Richard Nixon, I like the
Speaker 1: unto for all offenses against the United States which he
Speaker 1: has committed or may have committed or taken part in
Speaker 1: during the period from January twenty, nineteen sixty nine today
Speaker 1: he was inaugurated, through August nineteen seventy four. I don't
Speaker 1: think any lawyer could have read that pardon as excluding
Speaker 1: an unacknowledged act by Nixon like shooting the White House Butler.
Speaker 1: It seems about as clear as legal language can get. All.
Speaker 1: He's pardon for all offenses, right. I agree with you
Speaker 1: that that's the wording of it. I guess what I'm asking, Noah,
Speaker 1: maybe you're in a better position to answer this than me,
Speaker 1: is would the court be open to the view that
Speaker 1: the preamble in some way limits that and or that
Speaker 1: a pardon that broad just can't be valid because you
Speaker 1: can't just give absolution and say this person is permanently
Speaker 1: above the law for all crimes, whether I knew about
Speaker 1: them or not. Well, maybe you can. I mean, I
Speaker 1: guess my own view on the constitutional issue would be,
Speaker 1: though I would be very very unhappy about it. And
Speaker 1: although I would love to be able to say that
Speaker 1: the pardon power doesn't go that far. The origin of
Speaker 1: the pardon power as precisely a kind of monarchic or
Speaker 1: imperial get out of jail free card, allows the king, emperor,
Speaker 1: president to say, yes, you're forgiven for everything. Now. The
Speaker 1: one limitation that I think constitutional lawyers would accept is
Speaker 1: that you can't preemptively pardon someone for acts they haven't
Speaker 1: yet committed. You can't pardon someone or the future. And
Speaker 1: if you think about it, that's not completely obvious that
Speaker 1: that should be the case. I think the idea is
Speaker 1: implicit in the idea of a pardon that you're pardoned
Speaker 1: for past acts. You've done something wrong and now you're
Speaker 1: pardoned for it, not I advance pardon you for something
Speaker 1: that you're about to do in the future. You know,
Speaker 1: if you're committing new offense, you have to be pardoned
Speaker 1: for that again. But other than that, I think I'm
Speaker 1: pretty open to the idea that the grandeur of the
Speaker 1: pardon power, which I don't like, is nevertheless efficacious under
Speaker 1: the Constitution. And now, what do you think about the
Speaker 1: hypothetical wherein the president essentially promises I will pardon you
Speaker 1: after you commit the crime we're going to do together.
Speaker 1: That would be an impeachable act, that would be a
Speaker 1: high crime and misdemeanor. For the president to say that,
Speaker 1: it would not yet be the pardon. So if the
Speaker 1: president made that promise to pardon, that's not the same
Speaker 1: as the pardon. The pardon has to actually be issued, right,
Speaker 1: I agree that that's not the pardon. But the question
Speaker 1: is when the pardon comes around. Right, So, six weeks
Speaker 1: later they've committed the crime, right, is an illegitimate person?
Speaker 1: Is that pardon still legitimate given that it was agreed
Speaker 1: to in advance together as essentially a conspiracy to commit
Speaker 1: the crime? I mean as you said earlier when we
Speaker 1: were talking about whether an illegally obtained pardon would be valid,
Speaker 1: that is a really, really hard question, and the reason
Speaker 1: it's so hard is that it just seems preposterous on
Speaker 1: its face that something illegally, in this case, criminally obtained
Speaker 1: would nevertheless be valid. The counter argument, though, is that
Speaker 1: the whole point of the pardon power is that the
Speaker 1: president has the capacity to put certain things above the law,
Speaker 1: and so on that view, you could punish the president
Speaker 1: for it. He would be impeachable. He would be probably
Speaker 1: criminally prosecutable, certainly after his impeachment for that, if he
Speaker 1: were removed from office, or if he left office. But
Speaker 1: I have an instinct to say that it's possible that
Speaker 1: the actual issued pardon would still be valid because he
Speaker 1: was president when he did it, and that's a terrible conclusion.
Speaker 1: I don't want to reach that conclusion because I don't
Speaker 1: want the president to be able to effectively put himself
Speaker 1: outside the law, or to put his accomplices outside the law.
Speaker 1: But I guess I think probably that the pardon would
Speaker 1: be efficacious. The difference is that a pardon of himself
Speaker 1: wouldn't be efficacious, So he would himself still be criminally aliable. Seth.
Speaker 1: I began by asking you about how prosecutors feel about pardons.
Speaker 1: I want to conclude by asking you what it's like
Speaker 1: when you're on the other side of defense, when you're
Speaker 1: representing people who are charged with crimes, and sometimes even
Speaker 1: complete guilty to crimes. Does the possibility of pardon enter
Speaker 1: the minds of your clients? Does it enter your mind
Speaker 1: when you think, Gosh, that client probably shouldn't have pleaded guilty.
Speaker 1: Let's go try to get a pardon again. Pardons are
Speaker 1: fairly rare, so I can't say that it enters my
Speaker 1: mind as a strategy point, at least during the course
Speaker 1: of a normal case. In a normal criminal case with
Speaker 1: a defendant who's not connected to the president or governor,
Speaker 1: the typical way a pardon comes down is that the
Speaker 1: person first gets convicted, and then usually some significant time
Speaker 1: has gone by and the person has somehow proven themselves
Speaker 1: either to be innocent or reformed, and now you're making
Speaker 1: a pitch to the governor or the president that that
Speaker 1: person either should never have been convicted or somehow this
Speaker 1: needs to be wiped in light of their tremendous and
Speaker 1: unique service to the community that's happened since they were convicted,
Speaker 1: so it's typically long after the prosecution has already been concluded.
Speaker 1: Is it something that people think about? I think even
Speaker 1: most clients desperate for any port in a storm in
Speaker 1: the middle of a criminal case usually get that it's
Speaker 1: so unlikely and so far in the future that that's
Speaker 1: not the dream they're first thinking of. Do they think
Speaker 1: about it eventually? I think, particularly for well connected people,
Speaker 1: and I don't mean people connected directly to the governor
Speaker 1: or the president, but people who are the kinds of
Speaker 1: people who are my clients typically, which is to say,
Speaker 1: well connected, white collar, highly paid professionals. They've grown up
Speaker 1: their whole life with the understanding and the accuracy generally
Speaker 1: that if they keep working at something and keep pushing levers,
Speaker 1: they can make progress at whatever their goals might be.
Speaker 1: And I think those people also feel that way sometimes
Speaker 1: about pardons. After the fact, this is the most horrible
Speaker 1: thing they went through probably in their life. It's the
Speaker 1: thing that most besmirches their record, and they'd love to
Speaker 1: get it taken off. And I do think that some
Speaker 1: of those people do try to work the system, work
Speaker 1: their connections, work anything to get it removed from their
Speaker 1: record before they die, or even sometimes after they've died,
Speaker 1: their errors will try to do that, which is really
Speaker 1: a symbolic pardon entireleasins it matters no longer. But there
Speaker 1: are these posthumous pardons also. The answer is it doesn't
Speaker 1: come up that often, but it is something that people,
Speaker 1: particularly well connected people, do think about, and it is
Speaker 1: sometimes used even for the not well connected. For the
Speaker 1: safety valve reasons. We began the conversation with Seth. I
Speaker 1: just want to thank you, as always for stimulating my
Speaker 1: thinking so much, for teaching us so much, and for
Speaker 1: giving us the perspective from inside the criminal justice system
Speaker 1: on both sides of the fence. Thank you, Thank you.
Speaker 1: No as a pleasure speaking to Seth always gets my
Speaker 1: brain churning. In this conversation, I walked away with a
Speaker 1: sense that actually the part in power is potentially even
Speaker 1: worse than I've always thought it was, and that is
Speaker 1: really saying something. In the past, I've always focused on
Speaker 1: the undemocratic nature of the idea that the president is
Speaker 1: like a king or an emperor or a pope and
Speaker 1: can effectively step outside of the law to pardon people.
Speaker 1: The counterargument, of course, is that it's good for there
Speaker 1: to be mercy somewhere in the system. But talking to
Speaker 1: Seth really made me realize that a president who was
Speaker 1: clever about it and thought he could get away with it,
Speaker 1: could use the pardon power much more aggressively even than
Speaker 1: Donald Trump has done, and could use it to facilitate
Speaker 1: all kinds of criminal activity, either on his own behalf
Speaker 1: or on behalf of the policies that he wants by
Speaker 1: immunizing people against potential criminal prosecution through guarantees to them
Speaker 1: that he would pardon them. At the same time, Donald
Speaker 1: Trump hasn't gone quite that far, and even some of
Speaker 1: the pardons that he's talking about potentially issuing now have
Speaker 1: some precedent in the last days of Bill Clinson's administration.
Speaker 1: For the next six weeks, we're all going to be
Speaker 1: watching closely to see whom Trump pardons. It may come
Speaker 1: down to his last day in office. Here at Deep
Speaker 1: Background will keep a careful eye on it and will
Speaker 1: come back to talk about it more if there are
Speaker 1: major surprises. Until the next time I speak to you,
Speaker 1: be careful, be safe, and be well. Deep Background is
Speaker 1: brought to you by Pushkin Industries. Our producer is Lydia Gencott,
Speaker 1: our engineer is Martin Gonzalez, and our showrunner is Sophie
Speaker 1: Crane mckibbon. Theme music by Luis Guerra at Pushkin. Thanks
Speaker 1: to Mia Lobell, Julia Barton, Heather Faine, Carlie mcgliori, Mackie Taylor,
Speaker 1: Eric Sandler, and Jacob Weisberg. You can find me on
Speaker 1: Twitter and Noah Rfeld. I also write a column for
Speaker 1: Bloomberg Opinion, which you can find at Bloomberg dot com slashfeld.
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