From Nixon To Turkeys, A Look At Pardons

This week on Freak Out And Carry On, Ron Suskind and Heather Cox Richardson talk with Andrew Rudalevige, Professor of Government at Bowdoin College. They discuss presidential pardons throughout American history and examine whether President Trump could pardon himself, if necessary.

Ron Suskind: This summer, President Trump controversially pardoned his political ally,  Joe Arpaio, the former anti-immigrant Arizona sheriff who was found guilty of criminal contempt because he defied a court order to stop detaining immigrants on suspicious that they were simply in the country illegally. This week he granted a much less controversial pardon, to turkeys! A tradition that dates back to Harry Truman. So pardons are on our mind. Andrew, can the president pardon himself?

Andrew Rudalevige: It's a tricky question. The constitution is silent on that particular question and so there has been a new wing of the internet opened up to debate it after President Trump's statement, talking about his "complete power to pardon." There were a lot of questions about what that included. Did it include, notably of course, the power to pardon himself. Well, this is unclear. Back at the Constitutional Convention, James Wilson, who was a delegate from Pennsylvania, assured his fellow delegates, who were nervous that if the president himself were guilty of treason that he would then use that pardon power to shield his accomplices, from punishment. Wilson said, "Well, no if the president is himself a party to the guilt he can be impeached and prosecuted."

Heather Cox Richardson: So much of the Constitution was set up in such a way that it would have checks and balances on every potential misuse of power. And it sounds from what you're saying that there is not any kind or a check or a balance on the president's power to pardon. Is that true?

Andrew Rudalevige:  Well, there are two. One is that it's crimes against the United States, so that that's only federal crimes. And so the president can't pardon people for state level crimes. Which could become important if you think about some of the arguments around financial misdeeds that might be connected to Russian money laundering or something like that. The other place is that the president can't pardon somebody so they can't be impeached. Impeachment is a separate political process. It is a pretty serious check on executive officers in the Constitution. But again, beyond that, it's pretty broad there aren't. It's one of the few really uncheckable powers by Congress or by the courts.

Ron Suskind: So in that architecture, Andrew, where would a Russia investigation as to the misuse of presidential pardons--where would it fit? The Russian investigation deals with [events] prior to his election, during the campaign, and seems to be bleeding over a bit to indicate obstruction of justice during his presidency. Where would this map out in terms of the the power to pardon, as conceived by the founders?

Andrew Rudalevige: A couple of things I think are relevant here. One is that the pardon power is something that can be exercised anytime after a crime is committed. The person being pardoned does not have yet been prosecuted for that crime. And of course the famous Nixon pardon is a good example of that. And so it is possible that if we presume the crimes have been committed somewhere relating to the you know investigation undergoing by Mr. Mueller. If we assume that crimes have happened then in principle the president could pardon anybody involved in those now or after charges are announced or any time in the future even after conviction. The second piece though is that the framers were particularly concerned about foreign interference. Because the United States at that time was far away, it was weak, but it was strategically located and had lots of resources. It was an interesting target for foreign opportunists.

Heather Cox Richardson: But can't we just establish right here and right now that from the very beginning the founders--if you know their papers as you and I do and the way they talk about the strength of the executive--that they did not intend for a president to be able to pardon himself.

Andrew Rudalevige: Yes, philosophically, I think that is correct.

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