1 00:00:00,160 --> 00:00:04,480 Speaker 1: Welcome back to fellow conspiracy realist. Tonight's classic episode is 2 00:00:04,680 --> 00:00:11,360 Speaker 1: I think a great window into unprecedented times hashtag no pun. 3 00:00:11,200 --> 00:00:18,160 Speaker 2: Left behind unprecedented presidential chaotic times. Yeah, can a president 4 00:00:18,239 --> 00:00:22,080 Speaker 2: pardon themselves? Is a question that you know, got a 5 00:00:22,079 --> 00:00:25,320 Speaker 2: lot more exploration when it became kind of a little 6 00:00:25,320 --> 00:00:29,160 Speaker 2: more of a possibility that it might happen. And then 7 00:00:29,160 --> 00:00:31,840 Speaker 2: this is really laying out the groundwork of the argument 8 00:00:32,120 --> 00:00:34,280 Speaker 2: you know, for and against this concept. 9 00:00:34,560 --> 00:00:36,800 Speaker 3: And the answer is that, yeah, obviously a president can 10 00:00:36,840 --> 00:00:39,200 Speaker 3: parton themselves. Right, we don't even need this episode. Let's 11 00:00:39,200 --> 00:00:40,480 Speaker 3: get out of here. 12 00:00:40,080 --> 00:00:43,560 Speaker 2: Yeah. Yeah, it's not as simple, quite as simple as that. 13 00:00:43,800 --> 00:00:45,880 Speaker 2: It's just some nuance to this convom. 14 00:00:46,320 --> 00:00:52,159 Speaker 1: Yeah, we're speaking with Professor Brian C. Coult, who is 15 00:00:53,200 --> 00:00:56,360 Speaker 1: I would say, still the top legal mind on this 16 00:00:56,560 --> 00:01:01,360 Speaker 1: very specific question. And Professor profess us or called points 17 00:01:01,400 --> 00:01:04,800 Speaker 1: out several times things that just sound weird if you 18 00:01:04,880 --> 00:01:08,240 Speaker 1: weren't born in the US or live here where it's normalized, 19 00:01:08,560 --> 00:01:10,959 Speaker 1: Like talk to somebody from any other part of the 20 00:01:11,000 --> 00:01:16,319 Speaker 1: world and look at their reaction when you say, well, yeah, 21 00:01:16,520 --> 00:01:19,759 Speaker 1: kind of a US president can be a felon and 22 00:01:19,920 --> 00:01:21,759 Speaker 1: can run for office. 23 00:01:22,480 --> 00:01:24,119 Speaker 3: They just can't be from Austria. 24 00:01:24,959 --> 00:01:32,240 Speaker 1: They just can't be Arnold Schwarzenegger. Dang from UFOs to 25 00:01:32,319 --> 00:01:37,399 Speaker 1: psychic powers and government conspiracies. History is riddled with unexplained events. 26 00:01:37,800 --> 00:01:40,880 Speaker 1: You can turn back now or learn this stuff they 27 00:01:40,959 --> 00:01:42,000 Speaker 1: don't want you to know. 28 00:01:55,040 --> 00:01:57,000 Speaker 3: Welcome back to the show. My name is Matt, my 29 00:01:57,120 --> 00:01:57,760 Speaker 3: name is Nola. 30 00:01:58,120 --> 00:02:00,720 Speaker 1: They call me Ben. We are joined with our super 31 00:02:00,800 --> 00:02:06,000 Speaker 1: producer Paul, pardon me, decand and most importantly, you are here. 32 00:02:06,240 --> 00:02:09,440 Speaker 1: You are you, and that makes this stuff they don't 33 00:02:09,480 --> 00:02:12,399 Speaker 1: want you to know. This is a very special episode 34 00:02:12,480 --> 00:02:15,600 Speaker 1: for us today, friends and neighbors. In a way, it 35 00:02:15,840 --> 00:02:19,600 Speaker 1: is a follow up or I would see a spiritual 36 00:02:19,680 --> 00:02:22,920 Speaker 1: successor I love that to an earlier episode that we 37 00:02:23,000 --> 00:02:28,239 Speaker 1: did back in twenty seventeen, we explored the strange case 38 00:02:28,240 --> 00:02:32,120 Speaker 1: of Yellowstone's Zone of Death, a small area of land 39 00:02:32,160 --> 00:02:36,239 Speaker 1: in rural America where an odd loophole allows, what's the 40 00:02:36,280 --> 00:02:38,840 Speaker 1: best way to say, guys, allows in theory, someone to 41 00:02:38,919 --> 00:02:40,679 Speaker 1: commit a crime and avoid prosecut. 42 00:02:40,440 --> 00:02:42,240 Speaker 4: Yeah, sort of like a purge zone where you could 43 00:02:42,320 --> 00:02:45,160 Speaker 4: just you know, all bets are off billy nilly crime 44 00:02:45,280 --> 00:02:48,120 Speaker 4: down USA. But as it turns out, with today's as 45 00:02:48,200 --> 00:02:50,800 Speaker 4: with today's question not quite so simple. So maybe listen 46 00:02:50,840 --> 00:02:52,120 Speaker 4: back to that episode if you haven't heard it in 47 00:02:52,160 --> 00:02:52,520 Speaker 4: a minute. 48 00:02:52,960 --> 00:02:55,320 Speaker 1: Yes, and spoiler alert for all of you would be 49 00:02:55,480 --> 00:02:58,680 Speaker 1: super villains in the crowd today, it will not work 50 00:02:58,760 --> 00:03:03,359 Speaker 1: in practice. Do not attempt it. However, in this episode 51 00:03:03,400 --> 00:03:08,240 Speaker 1: we relied heavily on the work of Professor Brian c. Coult, 52 00:03:08,320 --> 00:03:11,720 Speaker 1: the man who discovered the loophole in the first place. 53 00:03:11,919 --> 00:03:14,639 Speaker 3: And he actually wrote back to us and gave us 54 00:03:14,960 --> 00:03:18,079 Speaker 3: a few what would you call them, just some feedback 55 00:03:18,120 --> 00:03:19,920 Speaker 3: on some of the things we discussed. One of the 56 00:03:19,919 --> 00:03:23,720 Speaker 3: major ones is it's definitely cult as insult cult. 57 00:03:23,960 --> 00:03:28,760 Speaker 1: Yes, and this when we received this email, we were 58 00:03:28,800 --> 00:03:31,639 Speaker 1: delighted because in the course of our research for the 59 00:03:31,720 --> 00:03:35,800 Speaker 1: Yellowstone episode, we learned more about the professor's work, not 60 00:03:36,080 --> 00:03:40,720 Speaker 1: just concerning the zone of death. We learned that for years, 61 00:03:40,960 --> 00:03:46,200 Speaker 1: Professor Cult has investigated a question increasingly important and relevant 62 00:03:46,280 --> 00:03:49,600 Speaker 1: in the realm of American politics. It is this, can 63 00:03:49,640 --> 00:03:53,760 Speaker 1: a president pardon him or herself? And that's what we're 64 00:03:53,800 --> 00:03:57,240 Speaker 1: looking at today. But today, you see, we are lucky 65 00:03:57,360 --> 00:04:01,800 Speaker 1: enough to go directly to the prime source. Friends and neighbors, 66 00:04:01,880 --> 00:04:05,120 Speaker 1: We would like to introduce you to Professor Brian Cault. 67 00:04:05,400 --> 00:04:07,520 Speaker 1: Thank you so much for joining us on the show today. 68 00:04:07,520 --> 00:04:09,880 Speaker 5: Professor, Oh, thanks guys, glad to be here. 69 00:04:10,160 --> 00:04:12,600 Speaker 3: First off, can you tell us, just in your own words, 70 00:04:13,080 --> 00:04:15,240 Speaker 3: what you do every day, What are you studying, what 71 00:04:15,280 --> 00:04:15,960 Speaker 3: are you teaching. 72 00:04:16,839 --> 00:04:20,200 Speaker 5: Well, I'm a law professor at Michigan State University and 73 00:04:20,880 --> 00:04:24,400 Speaker 5: I teach towrts and administrative law, but my research has 74 00:04:24,520 --> 00:04:28,960 Speaker 5: pretty much always focused on constitutional law and more recently 75 00:04:29,000 --> 00:04:33,800 Speaker 5: the constitutional law of the presidency, things like pardons, impeachment, 76 00:04:34,360 --> 00:04:36,200 Speaker 5: twenty fifth Amendment, that sort of stuff. 77 00:04:36,839 --> 00:04:41,960 Speaker 1: Fantastic, So first things first, Professor, I think what would 78 00:04:42,000 --> 00:04:46,000 Speaker 1: benefit everyone in our audience right now would be to know, 79 00:04:46,360 --> 00:04:51,280 Speaker 1: in approachable terms, what is a presidential pardon. We hear 80 00:04:51,320 --> 00:04:54,000 Speaker 1: the term thrown around a lot, and it seems like 81 00:04:54,080 --> 00:04:56,400 Speaker 1: occasionally there are also misconceptions about this. 82 00:04:57,360 --> 00:05:03,520 Speaker 5: Yeah, so there definitely are. Presidential pardon is actually a 83 00:05:03,680 --> 00:05:07,200 Speaker 5: range of possible things, but at its fullest extent of 84 00:05:07,279 --> 00:05:14,880 Speaker 5: pardon forgives an offender for the crime that they committed. 85 00:05:16,080 --> 00:05:19,200 Speaker 5: That's the most common way it's practice. It's usually someone 86 00:05:19,200 --> 00:05:22,440 Speaker 5: who's already served their sentence, but the pardon sort of 87 00:05:22,600 --> 00:05:27,800 Speaker 5: removes the conviction from his record removes any sort of 88 00:05:27,839 --> 00:05:32,800 Speaker 5: consequences that remain, so if he's still suffering from some 89 00:05:32,880 --> 00:05:36,080 Speaker 5: civil rights deprivations, like he can't own a gun or 90 00:05:36,920 --> 00:05:39,920 Speaker 5: can't get certain licenses, those go away along with the conviction. 91 00:05:40,560 --> 00:05:43,720 Speaker 5: The president can also pardon people before they've been convicted, 92 00:05:43,800 --> 00:05:47,080 Speaker 5: or even before they've been charged with anything. And if 93 00:05:47,080 --> 00:05:50,120 Speaker 5: he does that, then by getting rid of any sort 94 00:05:50,160 --> 00:05:54,680 Speaker 5: of criminal consequences for the person's actions, that can prevent 95 00:05:54,720 --> 00:05:57,640 Speaker 5: them from going to prison. And if the person is 96 00:05:57,680 --> 00:06:01,080 Speaker 5: in prison in the middle the sentence, the pardon would 97 00:06:01,120 --> 00:06:06,520 Speaker 5: free them. The pardon can also be something less than that. 98 00:06:06,839 --> 00:06:09,480 Speaker 5: It includes the power to commute a sentence, so you're 99 00:06:09,520 --> 00:06:13,159 Speaker 5: not overturning the conviction, but you are shortening the sentence, 100 00:06:13,200 --> 00:06:18,039 Speaker 5: maybe letting them go earlier or immediately. There's also the 101 00:06:18,080 --> 00:06:21,240 Speaker 5: power to remit fines. If you had to pay a fine, 102 00:06:21,320 --> 00:06:24,720 Speaker 5: they can the president can make them pay you back. 103 00:06:25,680 --> 00:06:28,400 Speaker 5: Important limits on this, though, are that the president only 104 00:06:28,480 --> 00:06:33,279 Speaker 5: has this power with regard to federal offenses, and it 105 00:06:33,320 --> 00:06:35,640 Speaker 5: has to be something you've already done, so the president 106 00:06:35,680 --> 00:06:38,840 Speaker 5: can't pardon you in advance and give you sort of 107 00:06:38,880 --> 00:06:44,320 Speaker 5: a free path to commit crimes. That then won't be crimes. Finally, 108 00:06:44,320 --> 00:06:48,039 Speaker 5: there is an exception for impeachment because the Constitution makes 109 00:06:48,040 --> 00:06:51,400 Speaker 5: the impeachment process separate from the criminal justice process. So 110 00:06:51,400 --> 00:06:54,480 Speaker 5: if someone's being impeached, the president can't do that. You 111 00:06:54,600 --> 00:06:58,359 Speaker 5: can't use the pardon to interfere with or overturn the 112 00:06:58,400 --> 00:06:59,520 Speaker 5: result of an impeachment. 113 00:07:00,080 --> 00:07:02,120 Speaker 3: Can you clear up for us just a little bit, 114 00:07:02,240 --> 00:07:07,480 Speaker 3: what exactly is the state of being impeached and how 115 00:07:07,480 --> 00:07:10,320 Speaker 3: does that relate to being fired from a job or 116 00:07:11,880 --> 00:07:14,560 Speaker 3: having a vote of no confidence? 117 00:07:15,080 --> 00:07:19,120 Speaker 5: Sure, So the impeachment process is People talk about impeachment 118 00:07:19,800 --> 00:07:22,080 Speaker 5: to refer to the whole process, but impeachment is just 119 00:07:22,120 --> 00:07:24,960 Speaker 5: the first part. So the House of Representatives, by a 120 00:07:24,960 --> 00:07:30,160 Speaker 5: simple majority vote, can impeach any executive or judicial officer 121 00:07:30,280 --> 00:07:36,160 Speaker 5: of the federal government, and that's kind of like indicting someone. Basically, 122 00:07:36,240 --> 00:07:39,680 Speaker 5: the impeachment is an accusation, and so if the majority 123 00:07:39,680 --> 00:07:44,520 Speaker 5: of the House votes to impeach, then you are impeached. 124 00:07:44,600 --> 00:07:47,720 Speaker 5: But that just means you're on trial in the Senate, 125 00:07:47,800 --> 00:07:51,520 Speaker 5: and the Senate is the decision maker. You're on trial 126 00:07:51,520 --> 00:07:54,640 Speaker 5: in the Senate. The vice president presides over the Senate. 127 00:07:54,640 --> 00:07:57,520 Speaker 5: But if the president is impeached and on trial, then 128 00:07:57,600 --> 00:08:01,920 Speaker 5: the Chief Justice of the United States presides, and if 129 00:08:02,120 --> 00:08:05,000 Speaker 5: a two thirds majority of the Senate boats a convict, 130 00:08:05,120 --> 00:08:08,880 Speaker 5: then you're convicted. You're removed from office at that point, 131 00:08:10,160 --> 00:08:13,600 Speaker 5: unless you are no longer in office. That's a whole 132 00:08:13,600 --> 00:08:16,400 Speaker 5: other that's a whole other chapter of my last book. 133 00:08:16,440 --> 00:08:20,960 Speaker 5: Can you impeach people after they've left office? But impeachment again, 134 00:08:21,120 --> 00:08:24,760 Speaker 5: just refers to the accusation. It's like the indictment. 135 00:08:25,320 --> 00:08:30,120 Speaker 1: Oh, I see, so not immediately in and of itself 136 00:08:30,560 --> 00:08:34,600 Speaker 1: a proven thing, just an accusation exactly. 137 00:08:35,160 --> 00:08:37,640 Speaker 4: It was like Clinton, for example, you know, did not 138 00:08:37,800 --> 00:08:41,480 Speaker 4: get removed from office, but was impeached. Correct Or is 139 00:08:41,520 --> 00:08:42,440 Speaker 4: am I misremembering that? 140 00:08:42,920 --> 00:08:43,280 Speaker 1: Censured? 141 00:08:43,320 --> 00:08:46,760 Speaker 5: I believe, yes, yeah, Clinton, Clinton was impeached, Andrew Johnson 142 00:08:46,840 --> 00:08:50,440 Speaker 5: was impeached. Neither of them were convicted. So it's a 143 00:08:50,600 --> 00:08:53,560 Speaker 5: it's a blight on the record. I don't know anyone 144 00:08:53,600 --> 00:08:58,360 Speaker 5: who would invite an indictment and say it's no big deal. 145 00:08:58,480 --> 00:09:05,160 Speaker 5: But without being convicted, he wasn't found responsible for whatever 146 00:09:05,200 --> 00:09:05,760 Speaker 5: it is he did. 147 00:09:05,840 --> 00:09:09,079 Speaker 4: Have we seen a successful full realization of the impeachment 148 00:09:09,120 --> 00:09:11,600 Speaker 4: process from a president. I can't think of. 149 00:09:11,520 --> 00:09:15,960 Speaker 5: One, not of a president. The only people convicted under 150 00:09:15,960 --> 00:09:17,560 Speaker 5: the federal system have been judges. 151 00:09:19,160 --> 00:09:25,200 Speaker 1: And going back to this concept of pardons, we're interested 152 00:09:25,280 --> 00:09:29,440 Speaker 1: in learning a little bit about your personal story. I 153 00:09:29,480 --> 00:09:32,160 Speaker 1: believe you were some of your first published work on 154 00:09:32,200 --> 00:09:37,400 Speaker 1: this concept occurred in nineteen ninety six during your time 155 00:09:37,440 --> 00:09:39,959 Speaker 1: with the Yale Law Journal, or you wrote for the 156 00:09:40,040 --> 00:09:43,640 Speaker 1: Yale Law Journal in this regard, when did you first 157 00:09:43,679 --> 00:09:47,480 Speaker 1: begin investigating this question and what originally inspired you to 158 00:09:47,520 --> 00:09:48,920 Speaker 1: do so. 159 00:09:48,920 --> 00:09:51,480 Speaker 5: So I was a law student at Yale and I 160 00:09:51,520 --> 00:09:54,360 Speaker 5: was taking a criminal procedure class. And people make fun 161 00:09:54,400 --> 00:09:58,359 Speaker 5: of Yale sometimes Yale Law School for being overly theoretical, 162 00:09:59,000 --> 00:10:05,080 Speaker 5: and sometimes that's that's a fair, uh fair accusation. But so, 163 00:10:05,240 --> 00:10:07,280 Speaker 5: for instance, in our criminal procedure class, we were talking 164 00:10:07,320 --> 00:10:11,920 Speaker 5: about presidential pardons, which is not really an important part 165 00:10:12,000 --> 00:10:15,040 Speaker 5: of criminal procedure in the ordinary course of things. But 166 00:10:15,080 --> 00:10:17,480 Speaker 5: the professor had some theories and we were talking about 167 00:10:17,520 --> 00:10:21,160 Speaker 5: the whole structure of the constitution. And you know, okay, great, 168 00:10:21,280 --> 00:10:22,920 Speaker 5: how that's how it works in practice, but how is 169 00:10:22,920 --> 00:10:24,720 Speaker 5: it in theory. That's what we really want to know. 170 00:10:24,760 --> 00:10:27,360 Speaker 5: So we're talking about pardons, and I raised my hand 171 00:10:27,400 --> 00:10:31,800 Speaker 5: and I said, can the president pardon himself, and Professor 172 00:10:31,880 --> 00:10:34,000 Speaker 5: thought about it for a second, said I don't know. 173 00:10:34,200 --> 00:10:39,240 Speaker 5: Why don't you look into that? So that weekend I 174 00:10:39,280 --> 00:10:41,600 Speaker 5: went to the library and I read a bunch of stuff. 175 00:10:42,000 --> 00:10:45,360 Speaker 5: And I came back on Monday and I said, well, 176 00:10:46,640 --> 00:10:50,280 Speaker 5: I did some research and can't say for sure, but 177 00:10:50,440 --> 00:10:52,360 Speaker 5: I think the better argument is that he can't. And 178 00:10:52,400 --> 00:10:55,319 Speaker 5: he said, well that sounds interesting. Why why don't you 179 00:10:55,360 --> 00:10:57,960 Speaker 5: write something up. I'll you know, I'll call it an 180 00:10:57,960 --> 00:11:00,080 Speaker 5: independent study. You get a couple of credits for it, 181 00:11:00,160 --> 00:11:03,000 Speaker 5: maybe you could get it published somewhere. So I spent 182 00:11:03,040 --> 00:11:06,480 Speaker 5: the next weekend doing a rough draft of that, submitted 183 00:11:06,480 --> 00:11:11,320 Speaker 5: it to the Yale Law Journal, got rejected. Asked the 184 00:11:11,320 --> 00:11:14,320 Speaker 5: professor olsh I sent it around to other places. He said, well, 185 00:11:14,360 --> 00:11:17,319 Speaker 5: you know law reviews. The way that works when he 186 00:11:17,360 --> 00:11:20,320 Speaker 5: publish is as a student, it's kind of hard to 187 00:11:20,320 --> 00:11:23,960 Speaker 5: get published. Send it out to a hundred places. You'll 188 00:11:23,960 --> 00:11:26,439 Speaker 5: probably get a hundred rejections, but who knows, maybe you'll 189 00:11:26,480 --> 00:11:32,280 Speaker 5: be lucky, you'll get ninety nine rejections. And before I 190 00:11:32,360 --> 00:11:35,360 Speaker 5: did that, I resubmitted it to the Yale Law Journal 191 00:11:35,520 --> 00:11:40,239 Speaker 5: and they decided to take it. On the second try. 192 00:11:40,280 --> 00:11:42,720 Speaker 5: One of the main concerns about publishing it was it 193 00:11:42,840 --> 00:11:46,480 Speaker 5: just it seemed like a ridiculous thing to even think about, right, like, 194 00:11:46,760 --> 00:11:50,080 Speaker 5: why would a president, how could that ever happen. This 195 00:11:50,280 --> 00:11:54,880 Speaker 5: was in the Clinton administration, It was before Whitewater really 196 00:11:55,320 --> 00:11:59,880 Speaker 5: got heated up. It was before people started asking about 197 00:12:00,160 --> 00:12:04,439 Speaker 5: the self pardon in the Clinton contexts. So my first 198 00:12:04,440 --> 00:12:06,480 Speaker 5: task was just sort of making it seem relevant. So 199 00:12:06,520 --> 00:12:09,240 Speaker 5: I talked about Nixon, and Nixon had asked his lawyer 200 00:12:09,280 --> 00:12:14,120 Speaker 5: about it, and his lawyer said that Nixon could if 201 00:12:14,120 --> 00:12:16,920 Speaker 5: he wanted, pardon himself, and some of the others in 202 00:12:16,960 --> 00:12:19,360 Speaker 5: the administration said he couldn't. So it was talked about then. 203 00:12:20,320 --> 00:12:23,280 Speaker 5: Some people speculated about it a little bit at the 204 00:12:23,360 --> 00:12:26,640 Speaker 5: end of the George H. W. Bush presidency, which back 205 00:12:26,679 --> 00:12:30,680 Speaker 5: then was not that far in the past, when he 206 00:12:30,800 --> 00:12:34,440 Speaker 5: pardoned all of the Iran contract defendants after he had 207 00:12:34,480 --> 00:12:38,400 Speaker 5: lost the election, and some people thought maybe he'll pardon himself. 208 00:12:40,120 --> 00:12:42,400 Speaker 5: But it was you know, they made fun of it, 209 00:12:42,440 --> 00:12:46,560 Speaker 5: they said, this is kind of kind of out there. 210 00:12:46,600 --> 00:12:50,520 Speaker 5: And what I think is most important about this, and 211 00:12:50,600 --> 00:12:54,559 Speaker 5: I continue to say this is the fact that it 212 00:12:54,720 --> 00:12:57,280 Speaker 5: seemed unlikely, the fact that it seemed out there is 213 00:12:57,360 --> 00:13:02,080 Speaker 5: exactly why it needed to be written about then, because 214 00:13:02,240 --> 00:13:06,960 Speaker 5: now you see this fast forward to twenty eighteen, President 215 00:13:07,000 --> 00:13:10,240 Speaker 5: Trump says he can pardon himself. Now everyone's talking about it, 216 00:13:10,720 --> 00:13:13,480 Speaker 5: and no one can make the arguments that they have 217 00:13:13,720 --> 00:13:18,640 Speaker 5: about self pardons without thinking about Trump. And if you 218 00:13:18,760 --> 00:13:21,120 Speaker 5: don't like Trump, you don't want him to be able 219 00:13:21,160 --> 00:13:23,040 Speaker 5: to pardon himself. And if you do like Trump, you 220 00:13:23,120 --> 00:13:25,000 Speaker 5: do want him to be able to pardon himself. And 221 00:13:25,679 --> 00:13:28,040 Speaker 5: the Constitution doesn't care if you like Trump or not. 222 00:13:28,240 --> 00:13:31,400 Speaker 5: Either presidents can pardon themselves or they can't. So really, 223 00:13:31,440 --> 00:13:34,559 Speaker 5: the only time you can get the real analysis, get 224 00:13:34,559 --> 00:13:38,080 Speaker 5: the real answer to the question is when it's purely hypothetical, 225 00:13:38,840 --> 00:13:41,040 Speaker 5: and at that time it was, and so I wrote 226 00:13:41,120 --> 00:13:43,800 Speaker 5: at the time what I thought was the best argument 227 00:13:43,960 --> 00:13:51,200 Speaker 5: against self pardons being constitutional. It was sort of a 228 00:13:51,280 --> 00:13:55,079 Speaker 5: curiosity out there for many years, and then a few 229 00:13:55,160 --> 00:13:58,559 Speaker 5: years ago, in twenty twelve, I wrote a book that 230 00:13:58,960 --> 00:14:01,199 Speaker 5: looked at a bunch of these sorts of questions. Can 231 00:14:01,240 --> 00:14:06,360 Speaker 5: the president be impeached while he's after he's president? Can 232 00:14:06,400 --> 00:14:09,480 Speaker 5: you prosecute a sitting president? Can the president pardon himself? 233 00:14:10,080 --> 00:14:12,440 Speaker 5: What about Section four of the twenty fifth Amendment for 234 00:14:12,520 --> 00:14:16,920 Speaker 5: disabled presidents. There's a loophole and term limits where where 235 00:14:16,960 --> 00:14:20,080 Speaker 5: Obama or George W. Bush could come back into office 236 00:14:20,720 --> 00:14:23,200 Speaker 5: looking at sort of crazy things like that, but again 237 00:14:23,280 --> 00:14:26,960 Speaker 5: with the idea of looking at it when it's not happening, 238 00:14:27,120 --> 00:14:29,080 Speaker 5: so that we can figure out what the right answer 239 00:14:29,160 --> 00:14:34,840 Speaker 5: is and not what the politically preferable one for us is. 240 00:14:36,080 --> 00:14:39,760 Speaker 5: And the book came out in twenty twelve, and the 241 00:14:40,040 --> 00:14:43,160 Speaker 5: argument about self pardons, I added some arguments against them. 242 00:14:43,200 --> 00:14:45,600 Speaker 5: I also looked at the other side, so the book 243 00:14:45,600 --> 00:14:48,800 Speaker 5: gives both sides of the argument on it. But again 244 00:14:48,840 --> 00:14:53,120 Speaker 5: in twenty twelve, it's still all seemed hypothetical. So I'm 245 00:14:53,120 --> 00:14:56,400 Speaker 5: glad that I said what I had to say before 246 00:14:56,440 --> 00:15:00,720 Speaker 5: I knew whether whether I wanted the p to partner 247 00:15:00,760 --> 00:15:01,280 Speaker 5: himself or not. 248 00:15:02,160 --> 00:15:06,080 Speaker 1: Absolutely, And that book is constitutional cliffhangers, a legal guide 249 00:15:06,080 --> 00:15:07,600 Speaker 1: for presidents and their enemies. 250 00:15:07,680 --> 00:15:10,160 Speaker 4: So it's interesting you spent so much time laying the 251 00:15:10,160 --> 00:15:13,800 Speaker 4: groundwork and answer asking these questions in a hypothetical bubble 252 00:15:13,920 --> 00:15:17,520 Speaker 4: kind of and now we're seeing maybe the first example 253 00:15:17,520 --> 00:15:21,840 Speaker 4: of a president where these questions are pretty relevant because 254 00:15:21,840 --> 00:15:26,200 Speaker 4: of potential dealings before he was president. With his very 255 00:15:26,200 --> 00:15:29,400 Speaker 4: complex business network and things like that that maybe haven't 256 00:15:29,480 --> 00:15:32,360 Speaker 4: quite been in play in the way that we're seeing now, 257 00:15:32,760 --> 00:15:34,000 Speaker 4: do you see it that way? 258 00:15:34,960 --> 00:15:38,520 Speaker 5: Yeah? And so the book tries to sketch out these 259 00:15:38,560 --> 00:15:41,800 Speaker 5: sort of hypothetical scenarios just to illustrate, just to make 260 00:15:41,840 --> 00:15:46,480 Speaker 5: it make it more lifelike, give some color to it. 261 00:15:47,000 --> 00:15:50,360 Speaker 5: And a lot of the things that I try to 262 00:15:50,400 --> 00:15:52,800 Speaker 5: put in there, I was thinking about, like if this happened, 263 00:15:52,840 --> 00:15:55,360 Speaker 5: what would have to what would have to happen before 264 00:15:55,680 --> 00:15:57,440 Speaker 5: a president would partner himself. But it have to be 265 00:15:57,480 --> 00:15:59,640 Speaker 5: a really weird situation. So that's part of the question 266 00:15:59,720 --> 00:16:02,200 Speaker 5: is when would it happen, what would it look like? 267 00:16:02,680 --> 00:16:08,080 Speaker 5: And I can't see the future, but I think that 268 00:16:08,560 --> 00:16:11,360 Speaker 5: the book holds up pretty well. In the chapter on 269 00:16:11,440 --> 00:16:15,520 Speaker 5: can you prosecute a sitting President? It sort of, I 270 00:16:15,560 --> 00:16:18,400 Speaker 5: don't know. It resonates a little bit with what's been 271 00:16:18,440 --> 00:16:20,880 Speaker 5: going on this last year and a half. The self 272 00:16:20,920 --> 00:16:27,000 Speaker 5: pardon chapter, similar things, the one on twenty fifth Amendment, 273 00:16:27,000 --> 00:16:29,320 Speaker 5: which people are talking about you. When I wrote this book, 274 00:16:29,320 --> 00:16:31,720 Speaker 5: I had to try to convince people one of these 275 00:16:31,760 --> 00:16:34,000 Speaker 5: things might happen someday. It would be good if we 276 00:16:34,280 --> 00:16:38,080 Speaker 5: thought about them now, and then within six months of 277 00:16:38,120 --> 00:16:40,920 Speaker 5: Trump coming in, we had three of the six chapters 278 00:16:40,920 --> 00:16:43,200 Speaker 5: in the news for if you count the people saying 279 00:16:43,200 --> 00:16:49,960 Speaker 5: that they should impeach Hillary Clinton, and so, yeah, I 280 00:16:50,040 --> 00:16:52,440 Speaker 5: didn't think any of this would be relevant anytime soon. 281 00:16:52,480 --> 00:16:54,520 Speaker 5: I didn't know we would elect a president who tried 282 00:16:54,520 --> 00:16:56,760 Speaker 5: to hit for the cycle based on my book. 283 00:16:57,320 --> 00:17:03,400 Speaker 1: And one thing that is fascinating about various conversations we've 284 00:17:03,440 --> 00:17:08,320 Speaker 1: seen regarding the concept of self pardoning is, well, I'd 285 00:17:08,359 --> 00:17:12,200 Speaker 1: like to go back to the earlier example you alluded 286 00:17:12,240 --> 00:17:17,879 Speaker 1: to with Nixon briefly in some work. It was surprising 287 00:17:18,320 --> 00:17:20,960 Speaker 1: to me and I think to many of us to 288 00:17:21,080 --> 00:17:26,080 Speaker 1: learn that Nixon had reportedly asked his own legal team 289 00:17:26,160 --> 00:17:30,640 Speaker 1: about this concept way back during his time in office. 290 00:17:30,720 --> 00:17:31,320 Speaker 1: Is that correct. 291 00:17:32,320 --> 00:17:36,320 Speaker 5: Yeah, I'm not sure if he asked the lawyers or 292 00:17:36,400 --> 00:17:38,600 Speaker 5: if he just said to the lawyers, what are my 293 00:17:38,680 --> 00:17:42,880 Speaker 5: options and they came up with that, But a pardon 294 00:17:43,080 --> 00:17:46,560 Speaker 5: was definitely something that was important, and so the question was, 295 00:17:47,160 --> 00:17:49,320 Speaker 5: if he's going to get a pardon, does he have 296 00:17:49,400 --> 00:17:52,000 Speaker 5: to wait and get it from Ford if he resigns, 297 00:17:52,160 --> 00:17:54,879 Speaker 5: or can he give it to himself, or you know, 298 00:17:54,920 --> 00:17:57,280 Speaker 5: maybe they wouldn't have even prosecuted him. We're not sure. 299 00:17:57,760 --> 00:18:01,040 Speaker 5: So it was even then, I know it was very real. 300 00:18:01,119 --> 00:18:06,000 Speaker 5: At the time, it was still hypothetical. And the lawyer said, 301 00:18:06,119 --> 00:18:09,359 Speaker 5: if you pardoned yourself. The option was presented as you 302 00:18:09,400 --> 00:18:13,440 Speaker 5: pardon yourself and then you resign, because just politically, there's 303 00:18:13,520 --> 00:18:18,119 Speaker 5: no way that you could do that and avoid impeachment. 304 00:18:18,240 --> 00:18:21,400 Speaker 5: Impeachment was already the process was already rolling. That would 305 00:18:21,400 --> 00:18:24,199 Speaker 5: have just accelerated it, and that would have been the end. 306 00:18:24,200 --> 00:18:26,520 Speaker 5: And he knew it. He knew it would have been 307 00:18:26,560 --> 00:18:26,880 Speaker 5: the end. 308 00:18:27,560 --> 00:18:30,199 Speaker 3: Can we jump back to Article two, Section two of 309 00:18:30,200 --> 00:18:32,679 Speaker 3: the Constitution just to really go over and lay the 310 00:18:32,680 --> 00:18:37,840 Speaker 3: groundwork of exactly what the Constitution says. A pardon is sure. 311 00:18:39,040 --> 00:18:43,639 Speaker 5: So I can pull up my little copy of the 312 00:18:43,640 --> 00:18:49,359 Speaker 5: Constitution here, awesome Article two. Article two talks about the presidency, 313 00:18:49,560 --> 00:18:53,280 Speaker 5: and here we go. Article two, Section two, Clause one, 314 00:18:53,960 --> 00:18:57,600 Speaker 5: the president dot dot dot shall have power to grant 315 00:18:57,680 --> 00:19:02,760 Speaker 5: reprieves and pardons for a against the United States, except 316 00:19:02,800 --> 00:19:06,760 Speaker 5: in cases of impeachment. And that's it. That's all it says. 317 00:19:06,960 --> 00:19:11,200 Speaker 3: So everything else is just us kind of deciding. 318 00:19:10,920 --> 00:19:14,760 Speaker 4: Pretty open and with that language, that pretty vague language, 319 00:19:14,960 --> 00:19:17,239 Speaker 4: you get what I've seen described as one of the 320 00:19:17,240 --> 00:19:20,800 Speaker 4: most king like powers of the presidency. That's how it appears, 321 00:19:20,840 --> 00:19:22,440 Speaker 4: and I think that's pretty accurate. I can't remember where 322 00:19:22,480 --> 00:19:24,240 Speaker 4: I saw that, but it just seems like a wave 323 00:19:24,280 --> 00:19:26,440 Speaker 4: of the hand and all your sins are wiped away. 324 00:19:27,200 --> 00:19:30,040 Speaker 5: Yes, and it is one of the most king like 325 00:19:30,119 --> 00:19:32,960 Speaker 5: and I think just sort of thinking about Trump and 326 00:19:33,000 --> 00:19:36,840 Speaker 5: the pardon power, it's it's easy to see why it's 327 00:19:37,000 --> 00:19:41,920 Speaker 5: very appealing to him because it's the most king like, 328 00:19:42,000 --> 00:19:44,600 Speaker 5: or you could say, the most CEO like. He just 329 00:19:44,840 --> 00:19:47,560 Speaker 5: sort of signs this paper and he doesn't have to 330 00:19:47,560 --> 00:19:52,879 Speaker 5: go through Congress. He doesn't really have any potential for 331 00:19:52,920 --> 00:19:56,640 Speaker 5: a court reviewing it because under the so called political 332 00:19:56,720 --> 00:20:00,280 Speaker 5: question doctrine, the courts will not look he had a 333 00:20:00,320 --> 00:20:03,920 Speaker 5: pardon and decide if it was warranted or not. So 334 00:20:03,960 --> 00:20:08,439 Speaker 5: it's unreviewable in court. And he just says it and 335 00:20:08,480 --> 00:20:12,200 Speaker 5: it happens. He doesn't even need a lot of people 336 00:20:12,200 --> 00:20:15,720 Speaker 5: to sort of follow along. It's not like something he 337 00:20:15,760 --> 00:20:17,679 Speaker 5: has to build support for. If he says, let this 338 00:20:17,760 --> 00:20:19,919 Speaker 5: guy out of prison, they let that guy out of prison. 339 00:20:21,119 --> 00:20:25,480 Speaker 5: So it's the closest thing, like you said, to what 340 00:20:26,320 --> 00:20:32,000 Speaker 5: a king could do, and it is it is very tempting. 341 00:20:32,040 --> 00:20:35,320 Speaker 5: I can imagine for presidents to look at that and 342 00:20:35,359 --> 00:20:36,879 Speaker 5: think about how they might use it. 343 00:20:38,000 --> 00:20:45,520 Speaker 1: And we know that traditionally presidents have not immediately entered 344 00:20:45,560 --> 00:20:52,520 Speaker 1: office and began exercising this ability to pardon people. But correctly, 345 00:20:52,600 --> 00:20:55,880 Speaker 1: if I'm wrong here, did the current president, Donald Trump, 346 00:20:55,960 --> 00:21:00,360 Speaker 1: as we record this, did he begin pardoning people earlier 347 00:21:00,400 --> 00:21:03,800 Speaker 1: than in his time in office than other presidents? 348 00:21:05,000 --> 00:21:08,760 Speaker 5: Well, in recent history there's been sort of a shift. 349 00:21:08,920 --> 00:21:13,119 Speaker 5: Presidents have pardoned less recently than they did in the past, 350 00:21:13,720 --> 00:21:18,720 Speaker 5: and they sort of waited till the end to do 351 00:21:19,960 --> 00:21:22,720 Speaker 5: many of them. But it wasn't the earliest in a 352 00:21:22,880 --> 00:21:28,360 Speaker 5: presidential term that a president had done it. It was unusual, 353 00:21:28,920 --> 00:21:33,000 Speaker 5: but it wasn't unheard of. And in a way that's 354 00:21:33,040 --> 00:21:35,520 Speaker 5: actually a good thing because the design of the part 355 00:21:35,520 --> 00:21:37,520 Speaker 5: and power. We talk about it being a king like power, 356 00:21:37,560 --> 00:21:40,120 Speaker 5: but remember the president's not a king. And the whole 357 00:21:40,160 --> 00:21:42,760 Speaker 5: reason to give the president this power instead of giving 358 00:21:42,760 --> 00:21:46,200 Speaker 5: it to say, Congress, by a congressional vote, you give 359 00:21:46,240 --> 00:21:49,680 Speaker 5: it to the president because the president is politically accountable. 360 00:21:50,160 --> 00:21:55,080 Speaker 5: He's always politically accountable, even though he doesn't run for 361 00:21:55,160 --> 00:21:57,960 Speaker 5: reelection for two more years, even if he's in his 362 00:21:58,000 --> 00:21:59,880 Speaker 5: second term and not going to be running for reelection. 363 00:21:59,880 --> 00:22:03,520 Speaker 5: He's politically accountable to the whole country all at once. 364 00:22:03,600 --> 00:22:08,879 Speaker 5: He's got political capital to spend, and that's where the 365 00:22:09,119 --> 00:22:12,439 Speaker 5: framers of the Constitution wanted the power to reside. So 366 00:22:12,480 --> 00:22:18,240 Speaker 5: if presidents do what President Obama did by waiting until 367 00:22:18,520 --> 00:22:24,199 Speaker 5: after the election to commute all of those sentences and 368 00:22:24,240 --> 00:22:31,480 Speaker 5: the disproportionate sentences for drug offenses, he'd been talking about it, 369 00:22:31,520 --> 00:22:34,399 Speaker 5: but he didn't do it until after the election, Or 370 00:22:34,440 --> 00:22:38,840 Speaker 5: President Clinton on his last day in office, pardoning Mark Rich, 371 00:22:39,320 --> 00:22:43,320 Speaker 5: pardoning Susan McDougall, pardoning Roger Clinton, his own brother, waiting 372 00:22:43,400 --> 00:22:48,280 Speaker 5: until after the election when he's not at all politically accountable. 373 00:22:48,600 --> 00:22:51,720 Speaker 5: Or President George H. W. Bush partnering the Iran counter 374 00:22:51,800 --> 00:22:55,959 Speaker 5: defendants again after the election. The president is supposed to 375 00:22:56,160 --> 00:23:00,439 Speaker 5: be politically accountable. It's sort of this little loop that 376 00:23:00,520 --> 00:23:02,719 Speaker 5: he still has the power even when he's not. But 377 00:23:02,760 --> 00:23:05,800 Speaker 5: that's not how it's supposed to work. So when president's 378 00:23:05,840 --> 00:23:09,480 Speaker 5: pardon early, that's good because then that means that Congress 379 00:23:09,560 --> 00:23:15,639 Speaker 5: can respond and the voters can respond in the term elections, 380 00:23:15,760 --> 00:23:17,040 Speaker 5: or in the presidential election. 381 00:23:17,359 --> 00:23:18,760 Speaker 4: All right, we're going to be right back with more 382 00:23:18,800 --> 00:23:19,640 Speaker 4: from Professor Called. 383 00:23:19,680 --> 00:23:29,960 Speaker 6: After a quick sponsor break, and we're back Professor Called. 384 00:23:30,040 --> 00:23:31,840 Speaker 3: Please correct me if I'm wrong, but I'm just going 385 00:23:31,920 --> 00:23:34,159 Speaker 3: to make a statement here that is what I believe 386 00:23:34,200 --> 00:23:39,439 Speaker 3: to be true. My understanding is that much of law 387 00:23:40,160 --> 00:23:44,200 Speaker 3: is based upon the previous findings and judgments that have occurred, 388 00:23:44,760 --> 00:23:49,480 Speaker 3: Like the guiding principles of what is now law is 389 00:23:49,520 --> 00:23:50,200 Speaker 3: from the past. 390 00:23:50,320 --> 00:23:53,560 Speaker 5: Right, Yes, to the extent that we have precedent, we 391 00:23:53,720 --> 00:23:57,000 Speaker 5: take those presidents seriously or are bound by them, depending 392 00:23:57,040 --> 00:23:59,199 Speaker 5: on what kind of precedent it is. 393 00:23:59,200 --> 00:24:02,600 Speaker 3: Is there any foundational case or president that has to 394 00:24:02,600 --> 00:24:06,760 Speaker 3: do with this at all? A president pardoning himself. 395 00:24:07,280 --> 00:24:10,920 Speaker 5: Well, we don't have any case law directly on point 396 00:24:11,000 --> 00:24:16,280 Speaker 5: on presidents pardoning themselves. The argument against self pardons relies 397 00:24:16,840 --> 00:24:21,560 Speaker 5: on a whole bunch of theories and doctrines that haven't 398 00:24:21,600 --> 00:24:27,680 Speaker 5: really been tested either. It really is fair to say 399 00:24:27,680 --> 00:24:31,480 Speaker 5: that if a president did this, it would be completely unprecedented. 400 00:24:32,040 --> 00:24:34,040 Speaker 5: Now I'll let me back up a little bit. There 401 00:24:34,080 --> 00:24:37,000 Speaker 5: are cases in the past of other people with pardon 402 00:24:37,040 --> 00:24:45,200 Speaker 5: powers purporting to pardon themselves. Mayors and governors, and those 403 00:24:45,280 --> 00:24:50,960 Speaker 5: cases are sort of obscure. They hadn't really been tested 404 00:24:51,040 --> 00:24:54,520 Speaker 5: in court, and so we don't have any precedent from 405 00:24:54,520 --> 00:24:57,719 Speaker 5: those either. But even if we did. The US Constitution 406 00:24:58,720 --> 00:25:04,000 Speaker 5: presidential pardon power is different, is distinct from any state 407 00:25:04,119 --> 00:25:05,399 Speaker 5: or local pardon power. 408 00:25:06,320 --> 00:25:08,640 Speaker 3: What was doctor Bonham's. 409 00:25:08,080 --> 00:25:14,879 Speaker 5: Case, So this was a British case back in the 410 00:25:14,920 --> 00:25:20,320 Speaker 5: seventeenth century, and the issue in that case is I 411 00:25:20,320 --> 00:25:28,399 Speaker 5: would say, the power of Parliament over the King and 412 00:25:28,800 --> 00:25:34,359 Speaker 5: the power of the common law over the parliament. So 413 00:25:36,040 --> 00:25:38,320 Speaker 5: I don't know, it's sort of a fundamental case for 414 00:25:39,800 --> 00:25:44,720 Speaker 5: judicial review. People think about it as looking at the 415 00:25:44,760 --> 00:25:50,119 Speaker 5: ability of courts to strike down statutes or not. I 416 00:25:50,160 --> 00:25:54,159 Speaker 5: haven't thought about it much in terms of the pardon power. 417 00:25:54,240 --> 00:25:57,880 Speaker 5: But basically the principle of Bonds case. What you'll see 418 00:25:57,880 --> 00:26:02,480 Speaker 5: it's cited for is people will say, if there's a 419 00:26:02,560 --> 00:26:06,920 Speaker 5: statute that Parliament passes, because this is an English case 420 00:26:07,440 --> 00:26:12,359 Speaker 5: and it's contrary to what have you natural law or 421 00:26:12,480 --> 00:26:15,160 Speaker 5: common right and reason was how they put in that case, 422 00:26:15,560 --> 00:26:20,680 Speaker 5: then then the judges have to they have to declare 423 00:26:20,720 --> 00:26:24,440 Speaker 5: it void. And so again this sort of spawned the 424 00:26:24,480 --> 00:26:28,080 Speaker 5: concept of judicial review. A court looking at something that 425 00:26:28,320 --> 00:26:31,440 Speaker 5: Congress has done or that a president has done. If 426 00:26:31,560 --> 00:26:36,480 Speaker 5: it's illegal, then the court has to say so. They 427 00:26:36,480 --> 00:26:39,159 Speaker 5: have to say what the law is. And if the 428 00:26:39,240 --> 00:26:43,360 Speaker 5: law is that this statute is unconstitutional, then they're supposed 429 00:26:43,400 --> 00:26:47,159 Speaker 5: to say so. The actual case was about, you know, 430 00:26:47,240 --> 00:26:52,560 Speaker 5: sort of a weird medical licensing issue back in seventeenth 431 00:26:52,600 --> 00:26:55,560 Speaker 5: century England. So I'm not I'm not real up to 432 00:26:56,000 --> 00:26:59,800 Speaker 5: date on what exactly was going on, doctor Bonham, and. 433 00:27:01,400 --> 00:27:04,440 Speaker 3: The Washington Post just cited it as a foundational case 434 00:27:04,480 --> 00:27:06,600 Speaker 3: for possibly this subject. 435 00:27:07,000 --> 00:27:12,199 Speaker 1: And as we're speaking about some popular sources of media 436 00:27:12,280 --> 00:27:18,000 Speaker 1: and news here in the US, Professor, earlier in May 437 00:27:18,040 --> 00:27:21,200 Speaker 1: of twenty seventeen, you wrote a piece for the Wall 438 00:27:21,240 --> 00:27:26,280 Speaker 1: Street Journal about the twenty fifth Amendment and specifically section four. 439 00:27:26,320 --> 00:27:31,600 Speaker 1: I believe we mentioned it briefly at the beginning of 440 00:27:31,680 --> 00:27:35,439 Speaker 1: our conversation today, but I was wondering if you could 441 00:27:35,520 --> 00:27:40,800 Speaker 1: tell us and the audience what the significance of Section 442 00:27:40,840 --> 00:27:44,680 Speaker 1: four of the twenty fifth Amendment is in this conversation. 443 00:27:46,440 --> 00:27:49,879 Speaker 5: Well, Section four of the twenty fifth Amendment is where 444 00:27:50,520 --> 00:27:54,199 Speaker 5: the sections three and four deal with presidential disability. If 445 00:27:54,240 --> 00:27:57,480 Speaker 5: the president is unable to discharge the powers and duties 446 00:27:57,520 --> 00:28:01,640 Speaker 5: of his office. Then Section three allows him to say 447 00:28:01,680 --> 00:28:04,000 Speaker 5: so and hand over power to the vice president, and 448 00:28:04,000 --> 00:28:06,239 Speaker 5: then when he's better, he says, okay, I'm better now 449 00:28:06,280 --> 00:28:09,040 Speaker 5: and he takes power back. Section four is thru when 450 00:28:09,080 --> 00:28:13,160 Speaker 5: the president can't declare that he's disabled or won't, and 451 00:28:13,560 --> 00:28:16,679 Speaker 5: it allows the vice president and a majority of the 452 00:28:16,720 --> 00:28:20,480 Speaker 5: cabinet to declare that the president is unable to discharge 453 00:28:20,520 --> 00:28:23,200 Speaker 5: the powers and duties of his office. Then the vice 454 00:28:23,240 --> 00:28:28,360 Speaker 5: president becomes acting president. It doesn't remove the president from office, 455 00:28:29,440 --> 00:28:31,840 Speaker 5: and the president is still in office. He just is 456 00:28:31,880 --> 00:28:34,520 Speaker 5: temporarily stripped of his powers and he can say I'm 457 00:28:34,520 --> 00:28:38,280 Speaker 5: not disabled either right then if there's a disagreement there 458 00:28:38,360 --> 00:28:41,600 Speaker 5: or if he's unconscious, once he regains consciousness, he can 459 00:28:41,600 --> 00:28:47,040 Speaker 5: say I'm fine. If the vice president and cabinet disagree, 460 00:28:47,160 --> 00:28:49,560 Speaker 5: then it goes to Congress and Congress has to decide. 461 00:28:49,640 --> 00:28:53,640 Speaker 5: But the deck is stacked very heavily in favor of 462 00:28:53,640 --> 00:28:55,440 Speaker 5: the president. There needs to be two thirds in the 463 00:28:55,480 --> 00:28:57,960 Speaker 5: House and two thirds in the Senate agreeing that he's 464 00:28:58,640 --> 00:29:04,400 Speaker 5: unable to his job before before he loses. So it's 465 00:29:05,120 --> 00:29:09,680 Speaker 5: it's really it's never been used. Section three has been used. 466 00:29:09,760 --> 00:29:12,480 Speaker 5: President's going in for Kolonoskoy, he's going to be unconscious 467 00:29:12,480 --> 00:29:15,320 Speaker 5: for a couple of hours. He hands over power to 468 00:29:15,360 --> 00:29:19,200 Speaker 5: the vice president. That's happened three times, but Section four 469 00:29:19,200 --> 00:29:21,680 Speaker 5: has never been used. And you know, a lot of 470 00:29:21,680 --> 00:29:25,719 Speaker 5: people look at it and think, oh, well, if the 471 00:29:25,760 --> 00:29:28,800 Speaker 5: president is nuts, then the vice president and cabinet should 472 00:29:28,800 --> 00:29:31,600 Speaker 5: say so, and then then that'll remove him from office. 473 00:29:31,640 --> 00:29:36,120 Speaker 5: But it won't. If he's loocid enough to contest the action, 474 00:29:36,720 --> 00:29:39,800 Speaker 5: it would probably result in him getting his powers back 475 00:29:39,800 --> 00:29:43,080 Speaker 5: within a few days, and now he'd be mad. So 476 00:29:43,160 --> 00:29:48,600 Speaker 5: it's not I'm not sure how it relates to self pardons, 477 00:29:48,640 --> 00:29:51,800 Speaker 5: other than the possibility that if they thought he was 478 00:29:51,840 --> 00:29:54,280 Speaker 5: about to try to pardon himself, maybe they could invoke 479 00:29:55,000 --> 00:30:01,080 Speaker 5: Section four. I went, I went and found the Washington 480 00:30:01,120 --> 00:30:03,560 Speaker 5: Post piece you're talking about. I had read it before 481 00:30:04,560 --> 00:30:07,760 Speaker 5: Lawrence Tribe normalize and it's one of these things and 482 00:30:08,360 --> 00:30:12,280 Speaker 5: I and I should say this in general, a lot 483 00:30:12,320 --> 00:30:18,080 Speaker 5: of the discussion about presidential self pardons gets these headlines, 484 00:30:18,440 --> 00:30:21,640 Speaker 5: and it's not always the authors that let's say this. 485 00:30:21,640 --> 00:30:25,240 Speaker 5: Sometimes it's just the headline oversimplifying. But the headline says, no, 486 00:30:25,760 --> 00:30:29,920 Speaker 5: Trump can't pardon himself. The Constitution tells us so, and 487 00:30:30,240 --> 00:30:33,320 Speaker 5: you can find things that are equally certain of people 488 00:30:33,360 --> 00:30:37,920 Speaker 5: saying yes, Trump can pardon himself. The Constitution tells us so, 489 00:30:38,400 --> 00:30:41,920 Speaker 5: and they're both wrong. The Constitution doesn't tell us one 490 00:30:41,960 --> 00:30:45,720 Speaker 5: way or the other. We've got it. It's Schrodinger's cat, right. 491 00:30:45,760 --> 00:30:50,920 Speaker 5: We won't know until there's an actual case and when 492 00:30:50,920 --> 00:30:52,920 Speaker 5: and if it happens a chortal rule on it, then 493 00:30:52,960 --> 00:30:54,720 Speaker 5: we'll know. All we can say at this point is 494 00:30:55,200 --> 00:30:58,400 Speaker 5: we don't know. The president can try. It might work, 495 00:30:58,520 --> 00:31:00,680 Speaker 5: it might not, and we can say, hey, here's what 496 00:31:00,720 --> 00:31:03,920 Speaker 5: I would say if I were a judge, and I 497 00:31:03,960 --> 00:31:08,320 Speaker 5: would agree with Tribe painter in Eisen in this Washington 498 00:31:08,360 --> 00:31:11,960 Speaker 5: Post piece saying, I think the best reading of the 499 00:31:12,000 --> 00:31:18,840 Speaker 5: Constitution is that the president can't pardon himself. But there 500 00:31:18,880 --> 00:31:23,120 Speaker 5: are good arguments on both sides. And I found where 501 00:31:23,120 --> 00:31:27,640 Speaker 5: they talked about Bonham versus College of Physicians. That was 502 00:31:27,680 --> 00:31:33,000 Speaker 5: their source for the notion that you can't be the 503 00:31:33,080 --> 00:31:37,640 Speaker 5: judge in your own case. I'm actually kind of proud 504 00:31:37,680 --> 00:31:41,040 Speaker 5: that it didn't occur to me to link Bonham's case 505 00:31:41,200 --> 00:31:44,120 Speaker 5: with self pardons, because I think that's a very roundabout 506 00:31:44,160 --> 00:31:47,720 Speaker 5: and obscure way to get to that point. One of 507 00:31:47,720 --> 00:31:51,040 Speaker 5: the main arguments that the president can't parton himself is 508 00:31:51,080 --> 00:31:54,240 Speaker 5: that you can't be the judge in your own case. 509 00:31:54,600 --> 00:31:58,120 Speaker 5: And remember I said that it was about some obscure 510 00:31:58,560 --> 00:32:01,240 Speaker 5: medical licensing issue. It turns out that's the part of 511 00:32:01,280 --> 00:32:03,400 Speaker 5: the case that they were drawing on, which is why 512 00:32:03,440 --> 00:32:06,720 Speaker 5: I didn't even occur to it. It didn't even occur 513 00:32:06,760 --> 00:32:06,960 Speaker 5: to me. 514 00:32:07,080 --> 00:32:09,280 Speaker 4: Isn't there also the notion that a pardon is inherently 515 00:32:09,360 --> 00:32:11,240 Speaker 4: the nature of it is that it's for someone else. 516 00:32:12,480 --> 00:32:16,080 Speaker 5: Yeah, So that was the main argument that I added 517 00:32:16,480 --> 00:32:20,440 Speaker 5: In twenty twelve. A friend of mine in law school, 518 00:32:20,600 --> 00:32:23,120 Speaker 5: when I was writing this original article was only thirty 519 00:32:23,160 --> 00:32:25,520 Speaker 5: pages long. I couldn't put in everything I wanted. He said, 520 00:32:25,960 --> 00:32:29,479 Speaker 5: you should argue a textual argument that the pardon is 521 00:32:29,720 --> 00:32:32,560 Speaker 5: something that's inherently bilateral. It's something you have to give 522 00:32:32,640 --> 00:32:34,680 Speaker 5: someone else, not something you give to yourself. And I said, now, 523 00:32:35,200 --> 00:32:37,360 Speaker 5: I don't know. I don't think so. I don't want 524 00:32:37,400 --> 00:32:41,280 Speaker 5: to make room for that. Then sixteen years later, when 525 00:32:41,280 --> 00:32:43,520 Speaker 5: I'm writing it, it occurs to me, I think about 526 00:32:43,520 --> 00:32:47,320 Speaker 5: it more that that's not actually worth including, that's not 527 00:32:47,520 --> 00:32:50,520 Speaker 5: just worth including that's actually the best argument there is. 528 00:32:51,320 --> 00:32:55,840 Speaker 5: All of this other stuff is sort of well, like 529 00:32:55,920 --> 00:32:57,760 Speaker 5: you can't be a judge in your own case. Of 530 00:32:57,800 --> 00:32:59,760 Speaker 5: courts will say you can't be the judge in your 531 00:32:59,800 --> 00:33:02,120 Speaker 5: own case when they're ruling against you being the judge 532 00:33:02,120 --> 00:33:04,040 Speaker 5: in your own case. But there are other instances where 533 00:33:04,040 --> 00:33:06,800 Speaker 5: they allow all kinds of self dealing, and they conveniently 534 00:33:06,840 --> 00:33:09,600 Speaker 5: forget to mention that. But if you can find something 535 00:33:09,600 --> 00:33:13,080 Speaker 5: in the text of the Constitution itself, that's the best 536 00:33:13,360 --> 00:33:16,960 Speaker 5: kind of argument for me. That's persuasive to me. So 537 00:33:17,480 --> 00:33:21,040 Speaker 5: with that argument, the idea is the argument that the 538 00:33:21,080 --> 00:33:23,360 Speaker 5: president can pardon himself is it doesn't say he can't. 539 00:33:23,440 --> 00:33:26,560 Speaker 5: It says he shall have power to grant pardons, and 540 00:33:26,920 --> 00:33:28,920 Speaker 5: it says there's an exception for impeachment. It doesn't have 541 00:33:28,920 --> 00:33:31,000 Speaker 5: any other exceptions. They say, well, if they wanted to 542 00:33:31,040 --> 00:33:33,200 Speaker 5: make an exception, then they would have said, and they didn't, 543 00:33:33,240 --> 00:33:37,000 Speaker 5: so he can. He can do it. But there are 544 00:33:37,600 --> 00:33:41,280 Speaker 5: limits inherent in what the definition of a pardon or 545 00:33:41,680 --> 00:33:46,160 Speaker 5: granting a pardon is in itself. So, for instance, I 546 00:33:46,240 --> 00:33:49,640 Speaker 5: mentioned before, you can't pardon someone for something he hasn't 547 00:33:49,640 --> 00:33:54,840 Speaker 5: done yet. You can only pardon past acts doesn't say 548 00:33:54,840 --> 00:33:58,400 Speaker 5: that anywhere in the Constitution. Where do they get that from. Well, 549 00:33:58,440 --> 00:34:00,840 Speaker 5: the courts are very clear that you can only pardon 550 00:34:00,880 --> 00:34:04,080 Speaker 5: things that have already happened. But it's inherent in the 551 00:34:04,120 --> 00:34:06,760 Speaker 5: notion of what a pardon is. So this argument is 552 00:34:06,760 --> 00:34:10,360 Speaker 5: the same thing that a pardon is just by definition, 553 00:34:10,440 --> 00:34:13,000 Speaker 5: something you give to someone else. And you can look 554 00:34:13,000 --> 00:34:17,320 Speaker 5: at other words that have the same Latin root paradonai, 555 00:34:18,480 --> 00:34:23,719 Speaker 5: like donate or condone. Like you wouldn't say I condone 556 00:34:23,760 --> 00:34:26,200 Speaker 5: my own actions. That doesn't make sense. You wouldn't say 557 00:34:26,200 --> 00:34:29,280 Speaker 5: I'm making a donation to myself. That doesn't make sense. 558 00:34:29,360 --> 00:34:32,279 Speaker 4: If you said pardon me, you're asking for others to 559 00:34:32,360 --> 00:34:34,920 Speaker 4: excuse something that you have done. In like a social situation. 560 00:34:34,960 --> 00:34:37,560 Speaker 4: If I say pardon me, Matt, or I have beltched 561 00:34:37,600 --> 00:34:40,400 Speaker 4: or something, Matt would say of course, yeah, good sir. 562 00:34:40,239 --> 00:34:43,000 Speaker 3: You know, and stop a builching in my direction. 563 00:34:44,120 --> 00:34:49,680 Speaker 5: Yes, that probably also has roots in Mary Old England too. 564 00:34:49,719 --> 00:34:54,040 Speaker 5: But I think in addition to the argument that a 565 00:34:54,080 --> 00:34:57,759 Speaker 5: pardon is inherently something you give to someone else, and 566 00:34:57,840 --> 00:35:01,160 Speaker 5: the notion that the courts prove of people being the 567 00:35:01,400 --> 00:35:05,560 Speaker 5: judge in their own case, there's also a historical argument 568 00:35:06,080 --> 00:35:11,359 Speaker 5: based on how the people debating the constitution the Constitutional 569 00:35:11,360 --> 00:35:15,360 Speaker 5: Convention talked about pardon powers. They were worried about giving 570 00:35:15,360 --> 00:35:19,279 Speaker 5: the pardon power to the president, and Edmund Randolph, one 571 00:35:19,280 --> 00:35:22,800 Speaker 5: of the delegates, proposed This is all recorded in James 572 00:35:22,800 --> 00:35:27,120 Speaker 5: Madison's notes. Edmund Randolph said, well, we need to make 573 00:35:27,120 --> 00:35:30,000 Speaker 5: an exception. We need to not allow presidents to pardon 574 00:35:30,040 --> 00:35:32,840 Speaker 5: people for treason. And the reason he said was the 575 00:35:32,880 --> 00:35:36,279 Speaker 5: president may himself be guilty. He said, the traders may 576 00:35:36,320 --> 00:35:39,640 Speaker 5: be his own instruments, and so we can't let the 577 00:35:39,640 --> 00:35:43,080 Speaker 5: president have the power to pardon these other traders that 578 00:35:43,160 --> 00:35:50,120 Speaker 5: he's a trader along with. And James Wilson, another delegate 579 00:35:50,200 --> 00:35:53,080 Speaker 5: later on the Supreme Court responded, he said, if the 580 00:35:53,120 --> 00:35:56,359 Speaker 5: president be himself a party to the guilt, he can 581 00:35:56,400 --> 00:36:00,239 Speaker 5: be impeached and prosecuted. And everyone said, oh, yeah, that's right, 582 00:36:00,320 --> 00:36:04,320 Speaker 5: And they voted and rejected Randolph's motion, and they didn't 583 00:36:04,360 --> 00:36:08,759 Speaker 5: restrict the pardon power for cases of treason, and they 584 00:36:08,800 --> 00:36:12,200 Speaker 5: didn't talk about self pardons. But what this tells us is, 585 00:36:12,880 --> 00:36:15,600 Speaker 5: first of all, if any of those people thought that 586 00:36:15,680 --> 00:36:19,879 Speaker 5: the president could pardon himself, the notion that, well, if 587 00:36:19,880 --> 00:36:22,560 Speaker 5: the president's guilty, we can just prosecute him. That wouldn't 588 00:36:22,560 --> 00:36:25,839 Speaker 5: have been persuasive at all, and no one said that, 589 00:36:25,960 --> 00:36:28,120 Speaker 5: so they must not have thought that the president can 590 00:36:28,160 --> 00:36:33,400 Speaker 5: pardon himself. Additionally, if anyone thought the president could pardon himself, 591 00:36:33,400 --> 00:36:35,359 Speaker 5: then they would have talked about restricting that, not saying 592 00:36:35,400 --> 00:36:38,040 Speaker 5: he couldn't pardon traders, but that he couldn't pardon himself. 593 00:36:38,680 --> 00:36:42,680 Speaker 5: But they didn't. They did they say the president can 594 00:36:42,719 --> 00:36:46,080 Speaker 5: pardon himself. No, but I think that that little piece 595 00:36:46,080 --> 00:36:48,960 Speaker 5: of evidence shows that they thought that. It literally went 596 00:36:49,040 --> 00:36:53,400 Speaker 5: without saying that a self pardon is not possible. I 597 00:36:53,440 --> 00:36:56,240 Speaker 5: think that there is an argument on the other side 598 00:36:56,239 --> 00:37:01,719 Speaker 5: of this, which is that the president is both the 599 00:37:01,840 --> 00:37:06,160 Speaker 5: sovereign and a person, and so he can pardon himself 600 00:37:06,200 --> 00:37:09,360 Speaker 5: because it's it would be Trump, the president giving a 601 00:37:09,400 --> 00:37:13,239 Speaker 5: pardon to Trump the person, and so it's inherently bilateral 602 00:37:13,320 --> 00:37:16,200 Speaker 5: that way. So you know, it's it's not a killer argument. 603 00:37:16,239 --> 00:37:18,040 Speaker 5: Like I said, there are good arguments on both sides, 604 00:37:18,440 --> 00:37:21,200 Speaker 5: but to me, it's a it's a pretty persuasive one. 605 00:37:21,360 --> 00:37:24,200 Speaker 5: I think it's the best argument against self pardons because again, 606 00:37:24,239 --> 00:37:27,400 Speaker 5: it's in the constitution it's inherent in the definition of 607 00:37:27,400 --> 00:37:28,560 Speaker 5: the word parton itself. 608 00:37:29,160 --> 00:37:32,800 Speaker 1: Absolutely, But where does this lead us? Will be back 609 00:37:33,040 --> 00:37:42,800 Speaker 1: after a word from our sponsor. Going off our hypothetical 610 00:37:42,920 --> 00:37:49,040 Speaker 1: pardon me example, let's go into the realm of speculation 611 00:37:49,880 --> 00:37:55,799 Speaker 1: just a bit. Let's imagine that the current president, or 612 00:37:56,320 --> 00:38:05,439 Speaker 1: just any president does some how successfully attempt this move, 613 00:38:06,640 --> 00:38:14,000 Speaker 1: they successfully pardon themselves. What would happen afterward? What sort 614 00:38:14,120 --> 00:38:19,920 Speaker 1: of impact would this have on the US government, on 615 00:38:20,200 --> 00:38:24,200 Speaker 1: the hearts and minds of the public. What kind of 616 00:38:24,239 --> 00:38:30,200 Speaker 1: consequences or implications could we possibly expect if something like 617 00:38:30,280 --> 00:38:31,560 Speaker 1: this were ever to occur. 618 00:38:32,239 --> 00:38:36,600 Speaker 5: Yeah, I think that ultimately that's the most important question, because, 619 00:38:38,920 --> 00:38:43,239 Speaker 5: just like impeachment, the pardon power exists in a political context. 620 00:38:43,600 --> 00:38:46,080 Speaker 5: If the president thinks it's a good idea to pardon someone, 621 00:38:46,480 --> 00:38:49,000 Speaker 5: then he does it, and that's why he has the power. 622 00:38:49,760 --> 00:38:54,440 Speaker 5: And so thinking about how it would look in my 623 00:38:54,600 --> 00:38:59,560 Speaker 5: own writing, I set up this hypothetical example of a 624 00:38:59,600 --> 00:39:03,920 Speaker 5: president and who has been accused of all these crimes, 625 00:39:04,160 --> 00:39:07,160 Speaker 5: and there's some questions whether you can prosecute him while 626 00:39:07,200 --> 00:39:11,520 Speaker 5: they're in office. So he's running for he's in a 627 00:39:11,520 --> 00:39:14,279 Speaker 5: second term, so there's there's an election going on and 628 00:39:14,400 --> 00:39:17,960 Speaker 5: it's very divisive, and the other party is saying the 629 00:39:18,000 --> 00:39:23,480 Speaker 5: president's a crook, and if I get elected, the Kennedy, 630 00:39:23,560 --> 00:39:26,239 Speaker 5: the other party says, if I get elected, I'm going 631 00:39:26,280 --> 00:39:28,880 Speaker 5: to appoint this guy as prosecutor and we're going to 632 00:39:28,920 --> 00:39:31,799 Speaker 5: go after the president, kind of like what Trump was 633 00:39:31,800 --> 00:39:35,280 Speaker 5: saying he would do about Hillary Clinton, although he didn't 634 00:39:35,320 --> 00:39:40,280 Speaker 5: end up doing it, and that person wins the election. 635 00:39:40,920 --> 00:39:43,560 Speaker 5: And the President has been saying all along, I didn't 636 00:39:43,560 --> 00:39:47,560 Speaker 5: do anything wrong, and my people in my administration haven't 637 00:39:47,600 --> 00:39:53,239 Speaker 5: done anything wrong. And so he waits until again he's 638 00:39:53,280 --> 00:39:58,400 Speaker 5: not politically accountable anymore, and he says, well, I'll just 639 00:39:58,480 --> 00:40:01,360 Speaker 5: read here. He says, for ten months, these scurreless accusations 640 00:40:01,400 --> 00:40:04,000 Speaker 5: have paralyzed the country. We've been unable to work on 641 00:40:04,040 --> 00:40:07,000 Speaker 5: the real problems Americans face. That problem was about to 642 00:40:07,040 --> 00:40:10,400 Speaker 5: get worse. Enough is enough with this pardon. I'm ending 643 00:40:10,440 --> 00:40:15,440 Speaker 5: this expensive distraction. Right. He has the power to do this, 644 00:40:15,560 --> 00:40:18,880 Speaker 5: and he's going to use it. So that's how the President, 645 00:40:19,200 --> 00:40:22,960 Speaker 5: i think most likely, would frame it. That he's not 646 00:40:23,360 --> 00:40:29,160 Speaker 5: forgiving himself for doing something wrong, he is preventing these 647 00:40:29,760 --> 00:40:33,560 Speaker 5: runaway prosecutors from doing an injustice to him. That's how 648 00:40:33,560 --> 00:40:38,080 Speaker 5: he would spin it, and a certain percentage of the 649 00:40:38,120 --> 00:40:42,160 Speaker 5: country would probably go along with that. So politically, the 650 00:40:42,239 --> 00:40:46,919 Speaker 5: question would be how many people would buy that line 651 00:40:46,960 --> 00:40:50,959 Speaker 5: of rhetoric. I think it would be a scandalous enough 652 00:40:51,040 --> 00:40:55,520 Speaker 5: act to enough people that the president would wait until 653 00:40:55,560 --> 00:40:57,920 Speaker 5: he was on his way out of office to do it, 654 00:40:58,440 --> 00:41:01,480 Speaker 5: especially if he couldn't be secuted while in office. That's 655 00:41:01,520 --> 00:41:04,400 Speaker 5: an open question too. But if you can't prosecute the 656 00:41:04,400 --> 00:41:07,879 Speaker 5: president while he's in office, and you can, if you're 657 00:41:07,920 --> 00:41:12,719 Speaker 5: the president, pardon someone who hasn't been charged with anything yet, 658 00:41:13,560 --> 00:41:16,880 Speaker 5: then that sets up this potential. So on his way 659 00:41:16,920 --> 00:41:19,680 Speaker 5: out of office he pardons himself. If he's on his 660 00:41:19,719 --> 00:41:24,680 Speaker 5: way out of office, then the political fallout as much less. So, 661 00:41:25,400 --> 00:41:28,279 Speaker 5: to answer your question, if the president's not on his 662 00:41:28,360 --> 00:41:31,040 Speaker 5: way out of office, if they're pursuing him and he 663 00:41:31,080 --> 00:41:33,880 Speaker 5: says I'm I'm just gonna pardon myself, I think the 664 00:41:33,880 --> 00:41:38,439 Speaker 5: political follow would be tremendous. I think the prosecutor who 665 00:41:38,520 --> 00:41:41,080 Speaker 5: was pursuing him would not just say, oh, I guess 666 00:41:41,160 --> 00:41:43,239 Speaker 5: I can't prosecute you. Then he would challenge it in 667 00:41:43,320 --> 00:41:46,320 Speaker 5: court because it's not clear that the president can pardon himself. 668 00:41:47,120 --> 00:41:50,879 Speaker 5: It would be swiftly appealed up to the Supreme Court, 669 00:41:51,000 --> 00:41:53,960 Speaker 5: I think, but it would. It would It would be 670 00:41:54,000 --> 00:41:56,520 Speaker 5: a divisive issue, and the people who agree with the 671 00:41:56,520 --> 00:41:59,479 Speaker 5: president that he didn't do anything wrong would think it's great, 672 00:42:00,040 --> 00:42:02,600 Speaker 5: and the people who disagree with the president and think 673 00:42:02,680 --> 00:42:07,000 Speaker 5: that he's a crook would think that it's terrible. And 674 00:42:07,040 --> 00:42:08,440 Speaker 5: I think there'd be a lot of people in the 675 00:42:08,440 --> 00:42:10,920 Speaker 5: middle who would say, I don't know what happened, if 676 00:42:10,960 --> 00:42:12,640 Speaker 5: he's a crook or not. But I don't think that 677 00:42:12,719 --> 00:42:17,719 Speaker 5: pardoning yourself is okay. I think, you know, you need 678 00:42:17,760 --> 00:42:19,719 Speaker 5: to not put yourself above the law. You need to 679 00:42:19,800 --> 00:42:22,880 Speaker 5: let other people make that decision. And that takes us 680 00:42:22,880 --> 00:42:25,719 Speaker 5: back to Nixon. I mean, talk about what would have 681 00:42:25,760 --> 00:42:28,200 Speaker 5: happened if Nixon had pardoned himself. We can only speculate, 682 00:42:28,520 --> 00:42:31,040 Speaker 5: but we do know what happened after Nixon resigned and 683 00:42:31,080 --> 00:42:35,680 Speaker 5: shortly thereafter Gerald Ford, who came into office untouched by 684 00:42:35,680 --> 00:42:39,360 Speaker 5: the whole Watergate scandal. He had very high approval ratings 685 00:42:39,800 --> 00:42:43,680 Speaker 5: and he decides he's going to pardon Nixon and immediately 686 00:42:44,480 --> 00:42:48,440 Speaker 5: very controversial decision. His approval ratings drop most of the 687 00:42:48,600 --> 00:42:51,080 Speaker 5: data that I've seen suggest it cost him the election 688 00:42:51,160 --> 00:42:54,120 Speaker 5: in nineteen seventy six. Two years later, he's running for reelection. 689 00:42:54,200 --> 00:42:59,879 Speaker 5: He are not reelection, but to stay in office for 690 00:43:00,160 --> 00:43:04,560 Speaker 5: more years, and he narrowly loses. He it was a 691 00:43:04,600 --> 00:43:07,960 Speaker 5: close election, and if you look at the data what 692 00:43:08,000 --> 00:43:10,080 Speaker 5: people thought about that part and that pardon cost him 693 00:43:10,120 --> 00:43:14,200 Speaker 5: the election. So you can only imagine how much worse 694 00:43:14,239 --> 00:43:17,880 Speaker 5: it would be if Nixon had done it himself. Ford said, 695 00:43:17,960 --> 00:43:19,640 Speaker 5: we've got to move on. This is the right thing 696 00:43:19,680 --> 00:43:22,000 Speaker 5: to do. If Nixon had said that, it wouldn't have 697 00:43:22,040 --> 00:43:28,640 Speaker 5: been convincing at all. So politically, if the president's still 698 00:43:28,640 --> 00:43:31,480 Speaker 5: in office, it would be a it would be throwing 699 00:43:31,520 --> 00:43:34,920 Speaker 5: a bomb. If he's on his way out of office, 700 00:43:36,120 --> 00:43:38,800 Speaker 5: it would be controversial, but he wouldn't be president anymore, 701 00:43:38,800 --> 00:43:42,880 Speaker 5: so it wouldn't It would be tabloid fodder, right, it 702 00:43:42,880 --> 00:43:46,000 Speaker 5: would be cable news fodder, but it wouldn't. It wouldn't 703 00:43:46,040 --> 00:43:49,280 Speaker 5: have the same sort of political impact. I think everyone 704 00:43:49,320 --> 00:43:50,719 Speaker 5: would just wait and see what the courts had to 705 00:43:50,760 --> 00:43:51,319 Speaker 5: say about it. 706 00:43:51,560 --> 00:43:56,400 Speaker 1: But then on the flip side of the speculative world, 707 00:43:56,440 --> 00:44:01,640 Speaker 1: we're exploring here, what if a standing president or president 708 00:44:01,640 --> 00:44:05,359 Speaker 1: on the way out attempts to self pardon, and that 709 00:44:05,800 --> 00:44:13,239 Speaker 1: attempt fails, wouldn't they still encounter the same enormous potential 710 00:44:13,320 --> 00:44:16,520 Speaker 1: for backlash because I imagine a lot of people who 711 00:44:16,520 --> 00:44:19,520 Speaker 1: were going back to what you said about the supporters 712 00:44:19,680 --> 00:44:22,200 Speaker 1: thinking it's a good idea, the opponent's thinking it's a 713 00:44:22,200 --> 00:44:26,960 Speaker 1: bad idea. Wouldn't a lot of people in the anti 714 00:44:27,280 --> 00:44:34,200 Speaker 1: administration side see that as a smoking gun, more or 715 00:44:34,320 --> 00:44:38,320 Speaker 1: less indicating some sort of truth to all the problems 716 00:44:38,320 --> 00:44:39,719 Speaker 1: they had with that administration. 717 00:44:40,920 --> 00:44:42,840 Speaker 5: Well, I think they could. They could look at that 718 00:44:42,920 --> 00:44:44,920 Speaker 5: and say, see, see what kind of person this is. 719 00:44:45,719 --> 00:44:49,759 Speaker 5: But I think that supporters would say what they've been 720 00:44:49,800 --> 00:44:52,600 Speaker 5: saying all along, if they if they have supported them 721 00:44:52,600 --> 00:44:56,680 Speaker 5: this long in saying that the accusations against him are fause, 722 00:44:56,760 --> 00:44:59,799 Speaker 5: they would probably go along for the ride there too. 723 00:45:00,840 --> 00:45:03,719 Speaker 5: And and that's an important thing about pardons that I 724 00:45:03,960 --> 00:45:07,040 Speaker 5: think has overlooked a lot. I had a piece. I 725 00:45:07,080 --> 00:45:09,440 Speaker 5: don't know if anyone saw it, but I I but 726 00:45:09,520 --> 00:45:11,160 Speaker 5: I liked it. It was in the New York Daily 727 00:45:11,200 --> 00:45:16,600 Speaker 5: News a few weeks ago, where you hear people say 728 00:45:16,600 --> 00:45:20,440 Speaker 5: this a lot, that a pardon is a declaration of guilt, 729 00:45:20,680 --> 00:45:23,759 Speaker 5: and that accepting a pardon is an admission of guilt, 730 00:45:24,600 --> 00:45:29,520 Speaker 5: and so you, yeah, you might. You might have people saying, uh, see, 731 00:45:29,280 --> 00:45:32,440 Speaker 5: he pardoned himself. That means he's admitting he was guilty. 732 00:45:32,480 --> 00:45:36,080 Speaker 5: But that's that's actually not right. That notion that a 733 00:45:36,120 --> 00:45:39,239 Speaker 5: pardon is an admission of guilt, accepting a pardon is 734 00:45:39,239 --> 00:45:44,560 Speaker 5: an admission of guilt is taking this one line from 735 00:45:44,560 --> 00:45:49,360 Speaker 5: this one Supreme Court case out of context and reading 736 00:45:49,360 --> 00:45:52,680 Speaker 5: it into a completely different one and and really missing 737 00:45:52,680 --> 00:45:58,440 Speaker 5: the point. Presidents almost always use pardons to forgive guilty 738 00:45:58,480 --> 00:46:01,919 Speaker 5: people who may don't deserve the punishment that they got, 739 00:46:03,840 --> 00:46:07,040 Speaker 5: but they can also Presidents can also use the pardon 740 00:46:07,080 --> 00:46:11,680 Speaker 5: power to exonerate people, and it's not the most usual 741 00:46:11,760 --> 00:46:14,879 Speaker 5: use of it, but sometimes they do. President Ford pardon 742 00:46:15,000 --> 00:46:18,440 Speaker 5: Nixon for giving someone who is guilty. He also pardoned 743 00:46:18,840 --> 00:46:25,000 Speaker 5: Tokyo Rose. She had been convicted of making propaganda broadcasts 744 00:46:25,040 --> 00:46:29,640 Speaker 5: during World War Two, and she was an American citizen 745 00:46:29,719 --> 00:46:33,160 Speaker 5: living in Japan, and they said, oh, she was broadcasting 746 00:46:33,200 --> 00:46:36,720 Speaker 5: these terrible things. Turns out sixty minutes does his story. 747 00:46:36,719 --> 00:46:39,440 Speaker 5: It turns out the case against her was based on 748 00:46:40,200 --> 00:46:45,239 Speaker 5: perjury and it was totally trumped up. Charges against her 749 00:46:45,320 --> 00:46:49,600 Speaker 5: and she was completely innocent, and sixty minutes had this 750 00:46:49,880 --> 00:46:52,480 Speaker 5: big story about it, and President Porziella, this is terrible. 751 00:46:53,120 --> 00:46:55,880 Speaker 5: Let's do what we can to pardon her, and he 752 00:46:55,960 --> 00:46:59,279 Speaker 5: did not because she was guilty. It wasn't a declaration 753 00:46:59,320 --> 00:47:02,520 Speaker 5: of guilt because she wasn't guilty. And when she accepted 754 00:47:02,520 --> 00:47:05,239 Speaker 5: the pardon, she wasn't admitting she was guilty. She was 755 00:47:05,280 --> 00:47:09,840 Speaker 5: accepting it because she wasn't. And Trump himself just pardoned 756 00:47:10,280 --> 00:47:14,960 Speaker 5: Jack Johnson posthumously, the boxer again, not because he was 757 00:47:15,520 --> 00:47:18,400 Speaker 5: guilty but should be forgiven, but because he wasn't guilty. 758 00:47:18,440 --> 00:47:23,960 Speaker 5: The case against him was bogus. So this notion that 759 00:47:24,040 --> 00:47:26,400 Speaker 5: he won't do it because it would require him to 760 00:47:26,440 --> 00:47:29,400 Speaker 5: admit guilt, I think is wrong, and people are missing 761 00:47:29,400 --> 00:47:31,480 Speaker 5: the potential for a president to put it in the 762 00:47:31,560 --> 00:47:34,440 Speaker 5: language that I had it in my book, where he says, 763 00:47:35,080 --> 00:47:38,719 Speaker 5: I'm not guilty, I'm innocent, and these people are coming 764 00:47:38,719 --> 00:47:40,680 Speaker 5: after me anyway even though I'm innocent. But I have 765 00:47:40,719 --> 00:47:42,279 Speaker 5: the power to stop that, so I'm going to use 766 00:47:42,280 --> 00:47:45,840 Speaker 5: that power. That's what he would say, and so any 767 00:47:45,880 --> 00:47:51,640 Speaker 5: political reaction would have to reflect that context. If the 768 00:47:51,680 --> 00:47:56,360 Speaker 5: president was saying I'm guilty, but Hey, it's good to 769 00:47:56,400 --> 00:47:59,440 Speaker 5: be the king and pardon himself. That would be much 770 00:47:59,480 --> 00:48:03,400 Speaker 5: more controversal, much more unacceptable, but I think also, as 771 00:48:03,400 --> 00:48:04,960 Speaker 5: a result, much less likely to happen. 772 00:48:05,640 --> 00:48:11,120 Speaker 3: So let's talk kind of an out there hypothetical strategy, Noel, 773 00:48:11,160 --> 00:48:14,840 Speaker 3: that you were talking about earlier. Would it be possible 774 00:48:15,000 --> 00:48:19,360 Speaker 3: for a sitting president to use one of the clauses 775 00:48:19,520 --> 00:48:23,920 Speaker 3: to step down as president temporarily accept a pardon from 776 00:48:23,960 --> 00:48:29,000 Speaker 3: the person who is then president in that momentary timeline, 777 00:48:29,280 --> 00:48:30,359 Speaker 3: and then step back in. 778 00:48:31,840 --> 00:48:36,120 Speaker 5: Yes, so, I guess that's what you were referring to 779 00:48:36,480 --> 00:48:40,520 Speaker 5: Section four and twenty fifth Amendment about Yes, the president 780 00:48:40,560 --> 00:48:44,000 Speaker 5: could do that. Now, it's important to make a distinction 781 00:48:44,120 --> 00:48:48,360 Speaker 5: about whether such a pardon would be valid and whether 782 00:48:48,640 --> 00:48:52,759 Speaker 5: such a pardon would be able to be done with impunity, 783 00:48:53,280 --> 00:48:56,360 Speaker 5: because if the president did that, and then presumably you know, 784 00:48:56,400 --> 00:49:01,399 Speaker 5: once he's back, he pardons the vice president quid pro quo, 785 00:49:03,360 --> 00:49:07,040 Speaker 5: those pardons would be valid. Right when you're the president 786 00:49:07,120 --> 00:49:09,759 Speaker 5: or when you're the acting president, you pardon someone that 787 00:49:09,760 --> 00:49:14,120 Speaker 5: that pardon sticks, But you also can be impeached for that, 788 00:49:15,120 --> 00:49:17,399 Speaker 5: and you can be prosecuted for it too, if it's 789 00:49:17,440 --> 00:49:21,680 Speaker 5: part of a criminal enterprise. So if if I give 790 00:49:21,719 --> 00:49:24,120 Speaker 5: the president a million dollars in exchange for pardon and 791 00:49:24,160 --> 00:49:27,799 Speaker 5: he pardons me, that pardon is valid, but we're both 792 00:49:27,800 --> 00:49:32,280 Speaker 5: going to go to prison for the bribe. And because 793 00:49:32,320 --> 00:49:35,160 Speaker 5: you can only pardon something that's already been done. If 794 00:49:35,200 --> 00:49:37,799 Speaker 5: the pardon is this criminal, you can't pardon yourself for 795 00:49:37,880 --> 00:49:40,360 Speaker 5: pardoning yourself, right the last one. They'll always get you 796 00:49:40,400 --> 00:49:45,320 Speaker 5: for the last one. So yeah, the president could could 797 00:49:45,600 --> 00:49:48,480 Speaker 5: hand over power to the vice president, the vice president 798 00:49:48,520 --> 00:49:52,239 Speaker 5: pardons him, hands power back, he returns the favor, or 799 00:49:52,280 --> 00:49:56,560 Speaker 5: he could resign. That's that's basically what Nixon and Ford did. 800 00:49:56,640 --> 00:50:00,400 Speaker 5: Nixon resign, Ford pardon Nixon for didn't need a pardon, 801 00:50:00,480 --> 00:50:02,600 Speaker 5: So there is no sort of quid pro quo there. 802 00:50:04,280 --> 00:50:08,319 Speaker 5: If it's part of a corrupt conspiracy, then it would 803 00:50:08,360 --> 00:50:10,680 Speaker 5: be punished as part of a corrupt conspiracy, even though 804 00:50:10,680 --> 00:50:15,000 Speaker 5: the pardons themselves would probably stick. I don't think there's 805 00:50:15,000 --> 00:50:18,080 Speaker 5: any question about that. There are some people who would 806 00:50:18,120 --> 00:50:22,920 Speaker 5: say that a court would refuse to honor such a pardon, 807 00:50:22,960 --> 00:50:25,400 Speaker 5: but I based on the case, I don't see that happening. 808 00:50:26,200 --> 00:50:28,279 Speaker 5: I think it's also worth mentioning how this would play 809 00:50:28,320 --> 00:50:31,719 Speaker 5: out if you have a pardon, it doesn't actually mean 810 00:50:31,760 --> 00:50:34,279 Speaker 5: anything unless someone tries to do something to you that 811 00:50:34,320 --> 00:50:36,520 Speaker 5: the pardon says they can't. So if you have a 812 00:50:36,560 --> 00:50:39,520 Speaker 5: pardon and they say, well, I'm going to prosecute you say, 813 00:50:39,520 --> 00:50:41,920 Speaker 5: well you can't because I have a pardon. Then they 814 00:50:41,920 --> 00:50:44,160 Speaker 5: try to prosecute you anyway, then the court has to 815 00:50:44,200 --> 00:50:47,759 Speaker 5: decide whether the pardon is valid or not. If no 816 00:50:47,800 --> 00:50:51,160 Speaker 5: one tries to pardon the president, he pardons himself, or 817 00:50:51,200 --> 00:50:53,440 Speaker 5: the vice president pardens him and no one tries to 818 00:50:53,600 --> 00:50:56,560 Speaker 5: prosecute him, then we don't know if it's valid or 819 00:50:56,600 --> 00:50:59,280 Speaker 5: not because it doesn't matter. It's only when he tries 820 00:50:59,320 --> 00:51:02,480 Speaker 5: to do something that would only be he'd only be 821 00:51:02,520 --> 00:51:04,520 Speaker 5: able to do if the pardon were valid, that we 822 00:51:04,520 --> 00:51:09,680 Speaker 5: would find out. There's there's you know, a lot of 823 00:51:09,880 --> 00:51:11,759 Speaker 5: a lot of things would have to happen before a 824 00:51:11,840 --> 00:51:15,200 Speaker 5: president would get prosecuted. It's not just the self pardon 825 00:51:15,920 --> 00:51:19,520 Speaker 5: being a remote hypothetical, it's it's also the prosecution itself 826 00:51:20,000 --> 00:51:24,600 Speaker 5: that was remote. So, you know, I love talking about 827 00:51:24,600 --> 00:51:31,279 Speaker 5: these hypotheticals, but it's it's also hard to imagine the 828 00:51:31,640 --> 00:51:35,800 Speaker 5: vice president wanting to get his hands dirty in that way. 829 00:51:36,840 --> 00:51:38,840 Speaker 5: I'm not saying that it would never happen. I'm just 830 00:51:38,880 --> 00:51:41,520 Speaker 5: saying that the more things you add in that make 831 00:51:41,600 --> 00:51:46,480 Speaker 5: it unlikely, the more hypothetical it is, the less instructive 832 00:51:46,520 --> 00:51:49,600 Speaker 5: it is. It's hard to draw lessons from it. 833 00:51:49,719 --> 00:51:52,879 Speaker 4: Ford Nixon. To me, that's like a backroom conversation where 834 00:51:52,960 --> 00:51:57,000 Speaker 4: Nixon is like, no, that's how I see it. Why 835 00:51:57,080 --> 00:51:59,320 Speaker 4: did Ford parton Nixon knowing there would be political fallout. 836 00:51:59,400 --> 00:52:00,759 Speaker 4: It seems like it was something he was like doing 837 00:52:00,760 --> 00:52:02,440 Speaker 4: a favor for for Nixon. 838 00:52:03,120 --> 00:52:04,759 Speaker 5: Yeah, there are there are a lot of people who 839 00:52:04,760 --> 00:52:08,640 Speaker 5: think that Nixon made a deal with Ford. I'll resign 840 00:52:08,680 --> 00:52:11,719 Speaker 5: and then you pardon me. And I think Ford was 841 00:52:11,760 --> 00:52:14,600 Speaker 5: inclined to pardon Nixon because that's just the kind of 842 00:52:14,640 --> 00:52:18,719 Speaker 5: guy that Ford was. He he didn't he didn't think 843 00:52:18,800 --> 00:52:23,360 Speaker 5: that we needed to continue beating up on Nixon. He 844 00:52:23,400 --> 00:52:27,399 Speaker 5: thought that losing the office was punishment enough, all that 845 00:52:27,440 --> 00:52:31,960 Speaker 5: sort of stuff. And I don't I don't think that 846 00:52:32,080 --> 00:52:35,680 Speaker 5: Nixon really had any leverage over Ford. Like if he says, well, 847 00:52:35,719 --> 00:52:39,320 Speaker 5: I'll resign, but only if you promised to pardon me. Ford, 848 00:52:40,280 --> 00:52:42,120 Speaker 5: if he was if he was answering honestly, he said, well, 849 00:52:42,120 --> 00:52:43,480 Speaker 5: I was going to pardon you anyway? Why are you 850 00:52:43,480 --> 00:52:48,600 Speaker 5: saying that? Or or he could say why I which 851 00:52:48,640 --> 00:52:50,919 Speaker 5: which he actually did say. This is all in in 852 00:52:51,280 --> 00:53:00,200 Speaker 5: his autobiography, and it's been reported and al Haig's book. Well, 853 00:53:00,200 --> 00:53:04,840 Speaker 5: Haigu came to Ford before Nixon resigned. Haigu was Nixon's 854 00:53:04,920 --> 00:53:10,480 Speaker 5: chief of staff and said will you will you commit 855 00:53:10,560 --> 00:53:16,960 Speaker 5: to pardoning Nixon? And Ford didn't say yes, and he 856 00:53:17,000 --> 00:53:19,600 Speaker 5: didn't say no. And when he told his people later, 857 00:53:19,600 --> 00:53:21,000 Speaker 5: they said, well, you need to be more clear. You're 858 00:53:21,040 --> 00:53:22,919 Speaker 5: not committing to anything. So he called up hag He said, 859 00:53:22,920 --> 00:53:26,480 Speaker 5: I'm not committing to anything. But Nixon didn't have any leverage. 860 00:53:26,520 --> 00:53:31,120 Speaker 5: He was going to get impeached and removed. He was 861 00:53:31,160 --> 00:53:33,320 Speaker 5: going to have to resign anyway, pardon or no pardon. 862 00:53:33,440 --> 00:53:35,799 Speaker 5: Did he really want to pardon? Sure? Was Ford going 863 00:53:35,880 --> 00:53:37,959 Speaker 5: to pardon him anyway? Sure? But was there a deal? 864 00:53:38,320 --> 00:53:38,920 Speaker 5: I don't think so. 865 00:53:39,120 --> 00:53:40,560 Speaker 4: I think what I was getting at was that it 866 00:53:40,600 --> 00:53:43,239 Speaker 4: was more of a courtesy. And I'm wondering why the 867 00:53:43,280 --> 00:53:47,200 Speaker 4: conversation now isn't like, well, of course, Pence will pardon Trump. 868 00:53:47,360 --> 00:53:50,600 Speaker 4: Why are we talking about Trump pardoning himself when the 869 00:53:50,640 --> 00:53:53,600 Speaker 4: president has kind of been that has a courtesy, your 870 00:53:53,800 --> 00:53:55,680 Speaker 4: VP will pardon you anyway. 871 00:53:56,840 --> 00:53:59,040 Speaker 5: Well, I think maybe Pence will look at what happened 872 00:53:59,040 --> 00:54:02,719 Speaker 5: to Ford when Ford pardon Nixon, and say, if I 873 00:54:02,880 --> 00:54:07,680 Speaker 5: want to get elected in twenty twenty or whatever the 874 00:54:07,680 --> 00:54:10,560 Speaker 5: next election is, if this happened, I would have to 875 00:54:10,600 --> 00:54:13,319 Speaker 5: think seriously about whether to do this or not. And 876 00:54:13,719 --> 00:54:16,520 Speaker 5: if whatever it is that he's partnering Trump for is 877 00:54:16,520 --> 00:54:21,520 Speaker 5: something that involves himself as well, then that would be 878 00:54:22,040 --> 00:54:25,640 Speaker 5: politically difficult for him to do. Ford had the political 879 00:54:25,760 --> 00:54:29,239 Speaker 5: space because he hadn't been mixed up in Watergate. He 880 00:54:29,760 --> 00:54:31,920 Speaker 5: had the space to do that and not have it 881 00:54:31,960 --> 00:54:38,320 Speaker 5: look like an inside deal. In the same way, when 882 00:54:38,400 --> 00:54:43,120 Speaker 5: Bush pardoned the Iran contract defendants, that was controversial for 883 00:54:43,160 --> 00:54:45,840 Speaker 5: that reason because Bush was one of them. It looked 884 00:54:45,880 --> 00:54:49,960 Speaker 5: like he was helping them out of a mess that 885 00:54:50,120 --> 00:54:54,960 Speaker 5: he was in. Two So, yeah, a lot would turn 886 00:54:54,960 --> 00:54:58,040 Speaker 5: on that is Pence involved in whatever he's partnering him 887 00:54:58,080 --> 00:55:01,440 Speaker 5: for or not As far as courtesy is concerned, you know, 888 00:55:01,520 --> 00:55:04,000 Speaker 5: it's it's a political question. He would he would look 889 00:55:04,000 --> 00:55:07,120 Speaker 5: at the polls and they would they would survey people 890 00:55:07,200 --> 00:55:12,880 Speaker 5: and he wouldn't have to decide right away. This all 891 00:55:12,920 --> 00:55:16,000 Speaker 5: turns on the notion that the president is being prosecuted 892 00:55:16,040 --> 00:55:21,320 Speaker 5: for something, though, and I think, yeah, that's that's possible 893 00:55:21,360 --> 00:55:24,239 Speaker 5: that a former president would be pursued by a prosecutor. 894 00:55:24,320 --> 00:55:29,400 Speaker 5: But without knowing exactly what the case is and exactly 895 00:55:29,480 --> 00:55:31,680 Speaker 5: what the what the dynamics of it all are, it's 896 00:55:31,680 --> 00:55:33,640 Speaker 5: hard to say what Pence would or wouldn't do in 897 00:55:33,640 --> 00:55:36,840 Speaker 5: that situation. Because if if there's a smoking gun and 898 00:55:36,880 --> 00:55:39,880 Speaker 5: he looks guilty and it looks bad, then a pardon 899 00:55:39,920 --> 00:55:43,879 Speaker 5: would look bad. And if it looks like it's some 900 00:55:44,000 --> 00:55:47,279 Speaker 5: technical thing or some disputable thing, and Pence wants the 901 00:55:47,320 --> 00:55:49,640 Speaker 5: country to move on and he thinks that he can 902 00:55:49,719 --> 00:55:52,640 Speaker 5: sell that idea that this is about moving on, then 903 00:55:52,640 --> 00:55:55,719 Speaker 5: maybe he would. But he would he would have to 904 00:55:55,760 --> 00:55:58,239 Speaker 5: look at what happened for it and and realize that 905 00:55:58,640 --> 00:56:02,480 Speaker 5: unless he has thirty points of approval ratings to the spare, 906 00:56:02,840 --> 00:56:05,400 Speaker 5: he probably has to be real careful about. 907 00:56:05,200 --> 00:56:09,600 Speaker 1: That, because it's tantamount to political suicide, or at least 908 00:56:09,640 --> 00:56:14,160 Speaker 1: it seems that's the That's the way the average voter 909 00:56:14,680 --> 00:56:17,600 Speaker 1: would would look at a vice president right there, would 910 00:56:17,800 --> 00:56:22,239 Speaker 1: gaze unfavorably upon that, regardless of the circumstances that led 911 00:56:22,320 --> 00:56:23,200 Speaker 1: to that decision. 912 00:56:24,080 --> 00:56:25,920 Speaker 5: Well, I think that's the main thing that's different between 913 00:56:25,920 --> 00:56:30,040 Speaker 5: now and Watergate. You can talk about an average voter 914 00:56:30,960 --> 00:56:34,799 Speaker 5: in the seventies, and we were still being governed from 915 00:56:34,840 --> 00:56:37,799 Speaker 5: the center at that point, and now things are so 916 00:56:37,920 --> 00:56:44,359 Speaker 5: polarized and we've got two sides that have completely irreconcilable 917 00:56:44,920 --> 00:56:48,319 Speaker 5: versions of reality, and so there isn't an average voter 918 00:56:48,400 --> 00:56:52,120 Speaker 5: really like there isn't anyone in the middle. So I'm 919 00:56:52,200 --> 00:56:56,839 Speaker 5: not sure that I'm not sure that the political suicide 920 00:56:57,120 --> 00:57:02,440 Speaker 5: notion is something that translates exactly from the seventies. I mean, 921 00:57:02,920 --> 00:57:05,120 Speaker 5: he would have to take that seriously, he'd have to 922 00:57:05,160 --> 00:57:08,560 Speaker 5: look at what the poles say, but it would it 923 00:57:08,600 --> 00:57:13,399 Speaker 5: would play out in a weirdly different way. The same 924 00:57:13,440 --> 00:57:18,960 Speaker 5: with impeachment. Nixon didn't go until the Republicans turned on him. 925 00:57:18,960 --> 00:57:21,600 Speaker 5: The Democrats were in control of Congress. It looked like 926 00:57:21,800 --> 00:57:24,080 Speaker 5: they were going to drive the impeachment forward, but it 927 00:57:24,120 --> 00:57:26,720 Speaker 5: wasn't going to be successful until and unless the Republicans 928 00:57:26,720 --> 00:57:29,600 Speaker 5: turned against him. Well, that's the same situation now. You 929 00:57:29,640 --> 00:57:32,040 Speaker 5: don't get two thirds to vote to convict in the 930 00:57:32,080 --> 00:57:36,560 Speaker 5: Senate unless both parties agree. But you don't have anyone 931 00:57:36,600 --> 00:57:40,200 Speaker 5: in the middle anymore, and the Republicans have to pay 932 00:57:40,200 --> 00:57:44,960 Speaker 5: attention to the Republican primary voters. And with that polarization, 933 00:57:46,480 --> 00:57:51,440 Speaker 5: it's harder to paint a picture where something happens and 934 00:57:51,520 --> 00:57:55,120 Speaker 5: everyone agrees that it's bad, like it was in the seventies. 935 00:57:56,200 --> 00:58:00,920 Speaker 1: And I, you know, I'm having a hard time emphasizing 936 00:58:01,120 --> 00:58:06,560 Speaker 1: how much I appreciate that point about polarization, because for 937 00:58:06,640 --> 00:58:11,480 Speaker 1: everyone listening, regardless where you find yourself falling in your 938 00:58:11,880 --> 00:58:17,560 Speaker 1: own personal, political or ideological stances, the fact of the 939 00:58:17,560 --> 00:58:24,080 Speaker 1: matter is that the public in general is increasingly polarized. 940 00:58:24,080 --> 00:58:28,440 Speaker 1: And although precedent does exist, Professor cult, I think you 941 00:58:28,560 --> 00:58:35,320 Speaker 1: make some fascinating, fantastic, and to some degrees disturbing points 942 00:58:35,360 --> 00:58:40,360 Speaker 1: about the differences between previous decades and the age in 943 00:58:40,400 --> 00:58:46,360 Speaker 1: which we live today. Before we conclude today's episode, Professor, 944 00:58:47,280 --> 00:58:50,760 Speaker 1: we have a question for you that we are certain 945 00:58:51,040 --> 00:58:53,959 Speaker 1: is on the minds of our fellow audience members here, 946 00:58:54,240 --> 00:58:58,960 Speaker 1: and that is this, where can where can listeners go 947 00:58:59,160 --> 00:59:02,800 Speaker 1: to learn more about your work and to learn more 948 00:59:02,960 --> 00:59:09,040 Speaker 1: about the concept of pardoning or self pardoning specifically, So. 949 00:59:09,480 --> 00:59:14,240 Speaker 5: I would recommend if people are interested in my book. 950 00:59:14,440 --> 00:59:18,560 Speaker 5: That Chapter two of the book is the most comprehensive 951 00:59:18,600 --> 00:59:24,000 Speaker 5: treatment that I've produced on the self pardon question. For 952 00:59:24,000 --> 00:59:26,240 Speaker 5: twenty years, I was the only person talking about it. 953 00:59:26,680 --> 00:59:29,200 Speaker 5: Most of the discussion in the last year and a 954 00:59:29,240 --> 00:59:33,160 Speaker 5: half has drawn on the things that I've said, whether 955 00:59:33,160 --> 00:59:35,080 Speaker 5: they cited them or not. I think the book is 956 00:59:35,120 --> 00:59:39,000 Speaker 5: the best place to go. Just go to Amazon, type 957 00:59:39,000 --> 00:59:44,680 Speaker 5: in my last name, Kalt and constitutional cliffhangers, and it 958 00:59:44,720 --> 00:59:46,960 Speaker 5: should come right up. I think they've sold out of 959 00:59:47,000 --> 00:59:49,680 Speaker 5: the hardcovers, but the paperbacks are still available, and the 960 00:59:51,240 --> 00:59:54,920 Speaker 5: ebook version is still there. If they want to read 961 00:59:55,000 --> 01:00:01,840 Speaker 5: the original article in the Yell Law Journal nineteen ninety six, again, 962 01:00:01,920 --> 01:00:11,320 Speaker 5: google my name Calt and pardon me and SSRN. It'll 963 01:00:11,320 --> 01:00:14,880 Speaker 5: come up there and you can download the original article. 964 01:00:15,120 --> 01:00:17,439 Speaker 3: Awesome, We'll get out there on Amazon. Find that book, 965 01:00:17,520 --> 01:00:20,960 Speaker 3: check it out. There's all by the way, Professor called 966 01:00:21,000 --> 01:00:24,760 Speaker 3: you are all over just the Washington Post and the Internet. 967 01:00:24,800 --> 01:00:27,960 Speaker 3: When people are talking about this subject, you get a 968 01:00:27,960 --> 01:00:28,840 Speaker 3: lot of calls, don't you. 969 01:00:29,720 --> 01:00:33,360 Speaker 5: I do. It's a nice change from twenty years of 970 01:00:33,400 --> 01:00:36,040 Speaker 5: people thinking that it was ridiculous to even be talking 971 01:00:36,040 --> 01:00:39,720 Speaker 5: about this. Probably my highlight was in the preface of 972 01:00:39,760 --> 01:00:42,320 Speaker 5: the book, I talk about how I'm writing this book, 973 01:00:42,320 --> 01:00:45,360 Speaker 5: and I'm at this reception and I'm talking to this 974 01:00:45,440 --> 01:00:49,080 Speaker 5: prominent legal thinker and he asked me what I'm writing about, 975 01:00:49,120 --> 01:00:50,480 Speaker 5: and I tell him, and he looked at me and says, 976 01:00:50,480 --> 01:00:54,240 Speaker 5: why are you writing about that? And fast forward to 977 01:00:54,280 --> 01:00:59,200 Speaker 5: twenty eighteen and he has a piece in the Washington 978 01:00:59,480 --> 01:01:01,760 Speaker 5: Post about out whether the president can part himself. 979 01:01:01,920 --> 01:01:07,400 Speaker 3: So, oh man, it's a little terrifying that you're you know, 980 01:01:07,800 --> 01:01:09,000 Speaker 3: you were on the right track. 981 01:01:09,560 --> 01:01:13,720 Speaker 1: But it's a prescient as well. And we would like 982 01:01:13,800 --> 01:01:18,040 Speaker 1: to thank you again for being so generous with your 983 01:01:18,160 --> 01:01:22,480 Speaker 1: time with us today and for correcting or clarifying some 984 01:01:22,560 --> 01:01:26,720 Speaker 1: of the misconceptions regarding pardons in general that are so 985 01:01:27,160 --> 01:01:31,440 Speaker 1: common in the US, and I would say in larger 986 01:01:31,520 --> 01:01:36,480 Speaker 1: international context as well. So ladies and gentlemen, thank you 987 01:01:36,640 --> 01:01:41,360 Speaker 1: for tuning in. Please let us know further questions that 988 01:01:41,440 --> 01:01:44,920 Speaker 1: you may have while you're listening to today's episode regarding 989 01:01:44,920 --> 01:01:49,200 Speaker 1: the concept of self pardoning. You can find Matt Nole 990 01:01:49,280 --> 01:01:52,040 Speaker 1: and I on Instagram. You can find us on Facebook, 991 01:01:52,080 --> 01:01:54,240 Speaker 1: you can find us on Twitter, you can find us 992 01:01:54,240 --> 01:01:57,640 Speaker 1: on our fan page. Here's where it gets crazy. 993 01:01:57,480 --> 01:01:59,040 Speaker 4: And boy does it ever get crazy. 994 01:01:59,360 --> 01:02:02,240 Speaker 3: In that fan page, Professor called do you have a 995 01:02:02,280 --> 01:02:04,480 Speaker 3: Twitter that you'd like to plug here? 996 01:02:05,760 --> 01:02:10,360 Speaker 5: Yes, I'm on Twitter. I'm at Profbrian Cault. 997 01:02:11,240 --> 01:02:16,080 Speaker 3: There you go, prepare yourself for a lot of inquisitive minds. 998 01:02:16,520 --> 01:02:18,560 Speaker 5: Well, you know Twitter brings out the best in people, 999 01:02:18,560 --> 01:02:19,040 Speaker 5: doesn't it. 1000 01:02:19,360 --> 01:02:22,840 Speaker 3: Yes, that's what I hear. And that's the end of 1001 01:02:22,960 --> 01:02:26,919 Speaker 3: this classic episode. If you have any thoughts or questions 1002 01:02:27,040 --> 01:02:30,320 Speaker 3: about this episode, you can get into contact with us 1003 01:02:30,400 --> 01:02:32,439 Speaker 3: in a number of different ways. One of the best 1004 01:02:32,560 --> 01:02:34,320 Speaker 3: is to give us a call. Our number is one 1005 01:02:34,480 --> 01:02:39,040 Speaker 3: eight three three STDWYTK. If you don't want to do that, 1006 01:02:39,320 --> 01:02:41,320 Speaker 3: you can send us a good old fashioned email. 1007 01:02:41,600 --> 01:02:45,760 Speaker 1: We are conspiracy at iHeartRadio dot com. 1008 01:02:45,880 --> 01:02:47,960 Speaker 3: Stuff they don't want you to know is a production 1009 01:02:48,080 --> 01:02:52,600 Speaker 3: of iHeartRadio. For more podcasts from iHeartRadio, visit the iHeartRadio app, 1010 01:02:52,680 --> 01:02:55,720 Speaker 3: Apple Podcasts, or wherever you listen to your favorite shows.