- Thanks to Ting Mobile for
keeping legal legal in the air. In the waning days of
the Trump presidency, people are wondering if president Trump is going to exercise the pardon power to pardon himself and his family. Well, yeah, probably. Good night everyone. Oh, you want to know
if there are any limits on the presidential pardon power, or if there's anything that can be done to stop the president using
the pardon power for himself and potentially co-conspirators. Well, the US Constitution
gives the president the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,
even pardon the Turkey. - Drumstick. You are here by pardoned. - But could President
Trump pardon this Turkey? Could he pardon his family
in potential co-conspirators? Could he step down and
have President Mike Pence pardon him before he leaves office? (introductory music) Hey LegalEagle, It's time
to think like a lawyer for the president. The pardon power is kind
of like a magic eraser that sets aside punishment
for federal crimes. But that doesn't mean that
there are no limits whatsoever to the power to pardon. The text of Article II, Section 2, establishes a few
limitations to be broad grant of pardon power. For example, the pardon
power does not apply to state crimes. Why? Because the
constitution explicitly says that, "the president may only give pardons to offenses against the United States." And that means federal crimes. People often mistakenly
believe a president can pardon or commute the sentences of people convicted of state
crimes, but that can't be done. People with state convictions have to look to their governors for reprieve. The pardon power also cannot be used to set aside impeachment. There is some disagreement
about what this really means, but at a minimum, the president
cannot pardon an executive or judicial officer from
an impeachment conviction. In all likelihood, if President
Trump had been convicted in the Senate, he could
not have pardoned himself in order to remain in office. And depending on how the
conviction was stylized by the Senate and the particular
punishment that was given, the conviction would
have immediately removed the presidential power anyway. But there's still some
ambiguity about the phrase in cases of impeachment as a limit on a presidential pardon power. Especially for president pardons, people who helped him
commit impeachable offenses. Some people believe that
the constitution imposes other limits on the pardon power. They generally pointed
the president's Article II duties to faithfully execute the laws. When a president takes the oath of office, he or she must affirm their
commitment to the rule of law. So we could argue that a
president who pardons himself has co-conspirators or
accepts favors in exchange for pardons is not
faithfully executing the laws or the duties of the office as a whole. These arguments certainly make sense, but they're completely untested and could be completely unconstitutional. The most common response would probably be that if a president is acting
as if they're above the law, then the remedy is impeachment and the founders wrote
at least one limitation into the pardon power. If they wanted to write more, they could have put in
those limitations directly into the document. But let's take a step back
and talk about the origins of pardon power. And the pardon power was adopted
from an English tradition known as the Royal
Prerogative of English Kings, which gave the King the ability
to overturn any sentence. It might seem counterintuitive that the American founders
adopted the pardon since they had just revolted
against King George III, because they thought
he had too much power. And James Madison wrote that, "giving one person legislative, executive and judicial powers was the
very definition of tyranny." So why does the constitution
give the president the ability to quickly reverse a court's judgment? Well, ask Alexander Hamilton, who argued that the pardon power was a tool a president could use to swiftly diffuse tensions
during times of national crisis. George Washington immediately
use the pardon power to end the Whiskey Rebellion. And giving the tax
protesting farmers a pardon rather than sentencing them to death actually worked out pretty well. But Hamilton trusted the pardon because he thought it would be used only by the most virtuous of men. But we are a long, long way
from George Washington now. But one of the issues
that perennially comes up, especially in the context
of a potential Trump pardon is whether a pardon is
an admission of guilt. If someone accepts a
pardon, does he or she admit that they were guilty
of the underlying crime? Whether accepting a pardon is an admission of guilt under the law is actually an open question. In the 1800s after the Civil
War in Ex parte Garland, the Supreme Court said that, "a pardon blots out
the existence of guilt, so that in the eyes of
the law the offender is as innocent as if he'd
never committed the offense." This sentence suggests
that a pardon wipes away any person's guilt, yet the court seemed to back
off of this interpretation in the 1915 case, Burdick
versus the United States. In Burdick, the court
observed that a confession of guilt may be implied in
the acceptance of a pardon. But Burdick was about whether a recipient could turn down a pardon. As some have argued, the court meant that as a practical matter, because pardons make people look guilty. A recipient might not want to accept one, but arguably pardons have
no formal legal effect of declaring guilt. In fact, many people have been
granted pardon specifically, because they're innocent. There isn't much case
law directly on point, but recent lower court cases seem to align with Burdick statement
that a person admits guilt when they accept a pardon. President George H.W Bush
pardoned Elliott Abrams for his role in the Iran-Contra scandal. But the DC bar initiated
disciplinary proceedings against Abrams for lying to Congress during its investigation of that scandal. Abrams challenged the
proceedings on the grounds that the pardon not only erased
his criminal convictions, but it meant he couldn't
be sanctioned by the bar for lying under oath. The DC circuit disagreed holding, "because a pardon does not blot out guilt, one can conclude that a pardon does not blot out probable cause or guilt, or expungement indictment." So the pardon didn't force the DC bar to treat Abrams as lying under oath is something that never happened. But could the president issue a pardon that is so open-ended and broad that it doesn't actually
specify who the recipient is? Could a president issue a mass pardon to all people who meet certain criteria? The answer to that is probably yes, there's no limitation on broad pardons. For example, Andrew Johnson pardoned all ex Confederate soldiers in 1868. Benjamin Harrison, pardoned all
members of the Mormon church who had committed polygamy. And Jimmy Carter, pardoned
all who had evaded the Vietnam War in 1977. So if historical precedent
is any indication, if President Trump wanted to pardon, let's say every person who
had ever been convicted of a federal drug crime,
he could probably do it. He does not have to specify
each individual person by name. But by the same token, he could probably specify
that anyone involved in any crime related to the "Russia Hoax" could also receive a pardon and effectively end
investigations of that. Which brings us to another one of the perennial questions about pardons, which is can a president
grant a perspective pardon where there's been no conviction or even indictment for a crime? We expect President Trump
to issue many pardons on his way out of office. But can he pardon people
who have yet to be indicted or even investigated for a federal crime? And the answer to that is a
clear, yes, he can do that. It appears that the
president can issue a pardon before any criminal proceeding against that person has been initiated. This is a prospective pardon. And in the 1866 case, Ex parte Garland that we just talked about, the Supreme Court announced
that the pardon power, "extends to every offense known to the law and may be exercised at the
time after its commission, either before legal proceedings are taken, or during the pendency or
after conviction and judgment." This basically means that
the president only needs to know a crime has been committed. He doesn't have to wait until
after the authorities indict or arrest a person in order
to grant them a pardon. The most famous perspective pardon is when President Gerald
Ford pardoned Richard Nixon for, "all offenses
against the United States, which he has committed
or may have committed or taken part in during the period from January 20th, 1969
through August 9th, 1974." Nixon had not been indicted for any crimes and resigned before he
could even be impeached. The pardon shielded him
from any future prosecution based on any criminal
acts he might've committed during his time specified in the pardon. But that takes us to a more
insidious potentials situation, a quid pro quo pardon. The phrase quid pro quo,
as you probably now know is something for something
or give and take. So can a president dole out pardons to people who offer him gifts, money, or other things of value? Well, the law at 18 U.S.C 201 makes it illegal to
bribe a public official. Now it's an open question, whether it applies to the president. But putting that aside for the moment, the bribery statute doesn't necessarily make a quid pro quo pardon illegal. In 2020, the House Democrats
introduced legislation that would make it illegal for a president to give a pardon in exchange
for something of value. The same proposed legislation
also made it illegal for a president to pardon himself. Although it's sort of an open question, whether this law itself
would be constitutional. The Congress can't pass
a law that conflicts with the constitution itself. Interestingly, Bill Barr,
yes, that Bill Barr, is on record as saying that a
president who sells a pardon is guilty of a crime, quid pro quo crime. - Do you believe a president
could lawfully issue a pardon in exchange for the recipient's promise to not incriminate him? - No, that would be a crime. - And he went on to
say that if a president gave away a pardon in
exchange for someone's silence that could be obstruction of justice. - Oh, a quid pro quo to change testimony could potentially be obstruction. - And that makes sense because
there's plenty of things that someone can do as
a governmental employee that you're authorized to do, but under certain
circumstances can be illegal. For example, if your job is
to sell military equipment if you choose to sell military
equipment to North Korea. Well you're authorized to do
it but it can still be a crime. And selling a pardon as president is one of those classic
examples that you use to say that yes, the president has that authority but there are circumstances
that can give rise to illegality. Now query what would happen
under those circumstances in terms of whether the pardon would still be in effect or not. These are things that
would need to be litigated and hopefully they'll
never need to be litigated. But the bottom line is
that the most likely remedy for a quid pro quo pardon
is probably impeachment, not criminal prosecution. And speaking of quid pro quo.(laughs) I was checking my YouTube stats and only 30% of this audience
is subscribed to this channel. So if you're getting value,
the quid from this channel, please subscribe and
hit the bell, the quo. And as the president says, but first I'd like you
to do me this favor. Which takes us to the question of whether the president
can pardon his own family. And the answer there is probably yes. There's no law or rule that says President Trump can't
pardon his family members. In 2001, former President Bill Clinton pardoned his brother,
Roger, who was convicted for cocaine possession in Arkansas. But there's nothing in the
text of the constitution or the case law surrounding
the pardon power that would seem like it would limit President Trump's ability to
pardon members of his family, whether it appears proper or not. But if you're talking about
President Trump's family that's a natural segue way to the question of whether the president can
pardon his co-conspirators. President Trump has been
implicated in many federal crimes that took place before
and after he took office. We've done several videos
about that in the past. And in one particular instance, President Trump's former
lawyer and fixer, Michael Cohen was sentenced to three years in prison for several crimes, including
using campaign funds to pay off women who had
affairs with the president. Federal Judge, William H
Pauley III said in open court that Trump had directed Cohen
to commit a federal felony. Trump was referred to in this proceedings as individual number one and
unindicted co-conspirator. And that's just one particular instance. There are lots of the
president's associates who have been implicated in crimes that he was either
involved in or directed. Can the president pardon these people? Well, it's certainly
possible that President Trump will pardon people who are
considered his co-conspirators. And I hate to tell you, but
it's actually happened before. In 1987, an independent counsel
was investigating crimes committed by members of
the Reagan Administration for violating federal law
by selling weapons to Iran. And then illegally funneling the money to Contras in Nicaragua. - For 18 months now, we have had underway a secret
diplomatic initiative to Iran. - For all you kids out there, this was the Iran-Contra scandal. Attorney General William Barr, yes, that Bill BARR helped
President George H.W Bush stop this investigation
by pardoning six people, including former Defense
Secretary, Caspar Weinberger, who was about to go on trial to face charges about lying to Congress. So you can chalk this one
up to the pardon power being very, very broad. There's probably nothing
that would stop the president from pardoning people
who have committed crimes at the president's own behest. And of course the first but
not the last lame duck pardon has been given to former
general Michael Flynn in an insanely broad pardon. I've covered the Michael Flynn situation in the past in a different
video, you can check that out. But many people are
outraged by the Flynn pardon and what arguably makes this different from some of President
Trump's other pardons is that the criminal
conduct lying to the FBI was arguably designed to
protect President Trump himself from prosecution or impeachment. So here we have Trump pardoning a person who may have helped him
hide his criminal conduct. Does this actually matter though, when it comes to assessing the
legality of the Flynn burden? Probably not. Although law professors
like Mark Ostler have said the Flynn pardon is a despicable
use of an awesome power. Even he agrees that this is
part of the broad expression of the pardon power presidents enjoy. That to be clear, this
is bad news for democracy if a president can use
pardons the way a mafia don would wield them as a
carrot to ensure loyalty from the don soldiers. But if you have a problem with
it, amend the constitution. No, seriously, amend the constitution. President Trump could
pardon Jared Kushner's dad, Steve Bannon, Paul Manafort,
and even Rudy Giuliani, who's allegedly being investigated for breaking lobbying laws. But does Congress just have
to sit back and take it? Can Congress investigate
the use of a pardon? Although Congress probably lacks direct legislative authority to limit the pardon power
via federal statute, it does have other constitutional
tools for regulating and overseeing the
president's pardon authority. Congress has the right to
use its oversight powers to investigate. They can issue subpoenas and hold hearings on the matters of presidential pardons. Admittedly, it's sort of an
open question in this era just how powerful
congressional subpoenas are, and whether Congress has the ability to enforce those subpoenas
against the executive. But I suspect that out of the wash the courts will affirm Congress's ability to enforce subpoenas
into matters like these. And when President Bill Clinton
pardoned about 450 people at the end of his second term, Republicans and Congress were outraged. And many of these pardons
were controversial, such as his pardon of Democratic
party donor, Marc Rich, who had fled the country
because of tax evasion charges. But congressional committees
held oversight hearings to assess whether these pardons were for lack of a better word, bad. But the bottom line was that
even if the pardons looked bad or rewarded people who had
connections to President Clinton, Congress lacked the authority to do anything about
whatever it uncovered. Although presidents have
complied with subpoenas and witnesses have testified. The Department of Justice has said that such compliance was voluntary and could not necessarily
be compelled by a court. It would certainly be
an interesting test case for the Supreme Court, which has expressed some
skepticism about the scope of how subpoenas into President
Trump's financial records. But it seems like it has to
be the case that if the remedy for improper use of a
pardon is impeachment, then Congress has to have the ability to investigate the use of those pardons. But that takes us to the penultimate issue with respect to pardons. Which is, what would happen if
President Trump stepped down and allowed Mike Pence to pardon him? Many people wonder if Donald
Trump could resign at 11:59 AM on January the 20th, making
Mike Pence the president for just a few minutes, just long enough to
pardon President Trump. Yes, this is the scenario that led to Gerald Ford's pardon of Richard Nixon. For years, people have claimed that Nixon and Ford made a deal
that Nixon would resign if Ford agreed to pardon him. This sounds like a sleazy deal, but there doesn't seem to be
any evidence of wrongdoing or shady dealing by Ford. But at the end of the day, Trump could effectively
do the same thing instead of leaving office two
years before his term is up as Richard Nixon did. Trump could effectively step down with just a few minutes
left in his presidency, turn it over to Mike Pence and ask for a pardon from
President Mike Pence. Of course, President
Trump has already stated that he could pardon himself. So he doesn't actually need to do that. But the question is, can the president actually pardon himself? President Trump certainly
thinks he has that power. He said on more than one occasion, "I have the absolute
right to pardon myself." But it's an open question, because obviously no one
has ever done this before. So it's uncharted territory. And as with most things
with constitutional law. First, we look to the
text of the constitution. And as we've discussed, the constitution gives
the president the power to grant reprieves and pardon for offenses against the United States, except in cases of impeachment. So at first blush, it
doesn't contain a limitation that says, unless you are the President of the United States. But that's not necessarily
the end of the question. In particular, because
I think a lot of people consider the idea of a
president pardoning him or herself to be so odious. Another prudential argument is that if the president
could pardon himself, he would forever be above the law. Many believe that a sitting
president cannot be indicted. If the president could pardon himself before he leaves office, he'd be immune from all
federal crimes while in office and then forever when he leaves. And in at least one part
of the constitution, the framers clearly
intended criminal penalties after office. Article I, Section 3 declares, "judgment in cases of impeachment shall not extend further
than to removal from office and disqualification to
hold and enjoy any office of honor, trust or profit
on the United States. But the party convicted
shall nevertheless be liable and subject to indictment,
trial, judgment and punishment, according to law." Many argue that the constitution says that the Congress may not
impose criminal penalties on a president, but the president is still nonetheless subject
to federal criminal prosecution through ordinary courts and allowing a self
pardon would eviscerate that clause of the constitution. And one of the canons of construction, the rule against surplusage
would lend credence to the idea that a self-dealing pardon is void. Other strict textualist
argue that the plain meaning of the pardon clause
doesn't actually allow for a self-dealing pardon, specifically because of the word, grant, as it's used in that clause. The constitution says, "the president shall have
power to grant reprieves and pardons for offenses
against the United States." The grant of a pardon
implies the transferring of one thing to another. The constitution uses the
word, grant five other times, always in the context of one person or body granting something
to another person or body. For example, Article I says, "the legislative power herein
granted shall be vested in the Congress of the United States." Here the people of the United States are granting Congress
the right to make laws. Also, Article I says, "Congress may grant letters of mark and reprisal." This man Congress can give private ships the right to start wars
against ships of other nations. This was an important grant
of power back in the day since it protected private vessels against accusations of piracy. Notice again, that Congress
is transferring a thing, letters of mark and
reprisal to another entity. It seems to imply to people
or at least a separate grantor and the grantee, kind
of like a kidney donor. You can have the power to give a kidney but you can't give it to yourself. LegalEageley speaking,
that's not a good idea, but I'm skeptical of this argument. For one, regular people and lawyers do use grants in a reflexive way. For example in property law, a person might grant him
or herself an easement or a life estate. A life estate is a property
that an individual owns only through the duration
of their lifetime. You don't see life estates all that often, but I assure you they do exist. And law students hate them because they make property
law really complicated and annoying. But the point is you can
grant yourself a life estate. So it's not clear which
way this argument would go. Which is one of the reasons why the Office of Legal
Counsel of the White House has opined on this particular
issue several times. And there's a general principle in U.S law that a person cannot be the
judge in their own case. Which would argue against
the president being able to pardon him or herself. And in 1974, when President Nixon asked the Office of Legal Counsel, the OLC to determine if he could pardon himself, the OLC relied on that principle in saying that President Nixon
could not pardon himself. And in the famous August
5th, 1974 memo of the OLC, Mary Lawton, the acting
assistant attorney general wrote, "under the fundamental rule
that no one may be the judge in their own case, the president
cannot pardon himself." And four days later,
Nixon resigned in disgrace possibly because he didn't think that he was legally
allowed to pardon himself. So given the President Nixon staff opined that he could not pardon himself, and often people complain that the OLC is really beholden to the presidency and aren't really giving
objective opinions. And even Nixon himself would not go so far to issue a self pardon. That's potentially persuasive authority that the president doesn't
have the power to self pardon. And there is some authority
from the Supreme Court that's persuasive because the
Supreme Court hasn't ruled on this precise issue of the
president pardoning himself. So it's not dispositive, but
it might help in this analysis. There's really only one Supreme
Court case that's on point, and that is Ex parte
Garland case from 1866, which we've talked about now
twice in this same video, because there aren't that many cases. And the Ex parte Garland case
concerned Congress's ability to exclude members of the Confederacy from practicing federal
law after the Civil War and whether the president could pardon a Confederate soldier. Again, going back to the idea of whether the pardon expunges everything, or whether there's some remaining residue from the prior crimes
that have been committed. And the Supreme Court held five to four that the president could
pardon the Confederate Senator. But more importantly, the
court held unanimously that the Supreme Court has the authority to interpret the scope
of the pardon power. And like the bedrock Supreme Court case of Marbury versus Madison, Ex parte Garland is
probably less important for the actual outcome of the case. Then for the principle
that the Supreme Court has the overview authority
to interpret the constitution in this case and make a
decision one way or the other about the president's pardon power. So this probably means
that if President Trump tried to pardon himself, he could do it in the first instance. He might be able to file
the paperwork for himself, but under a Supreme Court case law, the Supreme Court has the
power to review that pardon. And it's possible that the Supreme Court could review the case and actually nullify the president's self pardon on the grounds that the
president cannot be the judge in his own case or that the
impeachment exception applies, which prevents the president's pardon from going into effect. But the Ex parte Garland
case was 150 years ago. So there's no telling that
the current Supreme Court is actually even going
to take up the case. But the way that you would test it is if a certain president pardoned himself and then a new president
whether a prosecutor or the attorney general
himself decided to indict and move forward with charging
that president with a crime. Well, that former president
would then be able to challenge the
prosecution on the grounds that he had received and
granted his own pardon. And that would certainly go all the way up to the Supreme Court, almost guaranteed. It's possible that if
a case did make its way up to the Supreme Court and query who even has standing
to bring this challenge to the president's self pardon that the court would look at it and say, "look, this is a political question." We've seen the modern Supreme Court punt on a lot of questions claiming
this is a political question left for the legislative
and executive branches, and the separation of powers. And that there's a roundy
in the constitution that the president can be impeached and removed even up to
the last day in office. So if people find his behavior so odious, they can impeach him and
remove him from office. And that is the political
resolution to all of these things. So there's no telling what
a Supreme Court would do, whether they would follow
the guidance of the OLC, which is not binding precedent or whether they would allow
the self pardon to stand. Of course, if President Trump is indicted, he'll need to call it a
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and I'll see you in court.
It's almost as if the Constitution was meant as an updatable set of guidelines to protect people rather than an infalible holy text for the powerful to use to escape justice.
tl;dr: the president can fucking pardon literally anything with half a pulse.
Shit, he already pardoning all of his criminal friends and family.