Politics

Presidents Can Pretty Much Pardon Whomever They Want

Donald Trump holds his hands out as he sits at a desk.
President Donald Trump at the White House on Nov. 26. Erin Schaff/Pool/Getty Images

When it comes to Donald Trump’s pardons, “we likely ain’t seen nothing yet,” Jack Goldsmith said last month in the New York Times. “Now that he has lost the election, Mr. Trump will likely pardon himself, friends, family members and Trump business entities and employees for any crime they might have committed before or during his presidency,” wrote Goldsmith, who is a Harvard Law professor and the co-author of After Trump: Reconstructing the Presidency.

On a recent episode of Amicus, Dahlia Lithwick spoke with Goldsmith about how broad the power of presidential pardon is, how much deference the president is likely to receive, and whether Trump can pardon himself—and whether that plan might backfire. A partial transcript of their conversation, which has been edited and condensed for clarity, is below.

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Dahlia Lithwick: What, if any, are the actual limits to the presidential pardon power?

Jack Goldsmith: So the pardon power is found in Article II of the Constitution. It is very broadly conferred. It gives the president broad and, with two exceptions, unqualified power to pardon. The exceptions are: One, he’s limited to pardoning federal crimes. He can’t excuse or pardon state crimes. So, for example, Trump has no ability to stop the prosecution in New York, the investigation into the Trump Organization. Second, pardons cannot be used in the context of impeachments, which is no longer relevant, but a president can’t avoid an impeachment by issuing a pardon to someone. Other than that, Article II states no limits. And the Supreme Court has basically stated, for hundreds of years, that the pardon power is very broad and has really countenanced very few, if any, restrictions by Congress on it.

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And presidents have, in the past, used it very broadly. Trump is not the first president to potentially pardon family and friends, or associates involved in criminal cases. He has done so at a much higher rate and has much more aggressively used the pardon power thus far in self-serving ways. And I think he’s going to continue to in the next three weeks. Which is not to say there are no limits on the pardon power, but basically that’s the doctrine.

You’ve already said this implicitly, but let’s just spell it out: There’s no problem with pardons qua pardons. Presidents have used them for good and for ill. We’ve seen very broad pardons. George Washington pardoned the plotters of the Whiskey Rebellion, Jimmy Carter pardoned draft dodgers, famously Gerald Ford pardoned Richard Nixon. So the problem is not that Trump has already pardoned and will continue to pardon, it’s how he’s using them, right?

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Well, he presents the possibility potentially of using a pardon in a way that may be subject to crimes. But let’s set that aside for a second. Yes, the problem here is not one primarily of illegality; the problem is one of abuse. So the pardon power is really this extraordinarily broad, unchecked, almost unqualified power. Presidents have used it mostly for good. The Framers thought that there should be an act of grace possible somewhere in the Constitution. And they also believed that there should be a way of using pardons for community healing, amnesties, and the like. So they thought it was very important that the president had this power. There was debate about it. But it has been subject to abuse by past presidents. Bill Clinton, famously, at the end of his term, pardoned his brother, pardoned Marc Rich, pardoned Susan McDougal, who was involved in the Whitewater matter. And Clinton was actually investigated in the Southern District of New York, where there was an investigation of these pardons to Marc Rich out of concern that they may have been secured by bribes. In any event, the pardon power has been abused by past presidents. I’ve analyzed the 45 or so pardons that Trump has issued. By my count, 40 of them are personally or politically self-serving. And that’s a rate and a percentage of self-serving pardons that no president has come close to matching. So like most things, Trump has ramped up the presidential extremes on using these powers.

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And to be clear, it’s not the number of pardons, right? It’s actually been a relatively small number. It’s partly, as you say, he pardons famous people. He pardoned heroes of denialism or people who may have obstructed justice for him. He pardons people because Kim Kardashian pops her head into the Oval and says, “Hey, here’s the thing.” So the problem isn’t that he’s using pardons; it’s that he seems to be using them in ways that are profoundly different from what you’re describing as healing purposes. And then I think connected to that is the fact that the process has dropped out, right? That there is a pardons department. There is supposed to be scrutiny and clear agreement from various other entities. All that’s gone too, right?

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Exactly. So there’s a process that’s supposed to take place that involves the Justice Department. There’s someone called the pardon attorney in the Justice Department. There is an elaborate set of regulations. For Trump’s 45 pardons, he has skirted the pardon attorney procedures in 40 of them. He’s not the first president to skirt those procedures. And, again, Clinton did too with his controversial pardons at the end of his term. Again, Clinton, George H.W. Bush, George W. Bush all had a small percentage of what might be deemed self-serving pardons and a small percentage of cases where they skirted the pardon attorney. Trump has basically flipped that and made what was the exceptional case the rule. And I think we’re just seeing the beginning. He’s got several weeks in which once he starts doing it, I think it’s going to be quite a cascade of pardons.

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I know Trump’s been saying from the get-go that he can pardon himself. It seems to me the academic literature is mixed on whether presidents can self-pardon. What are your thoughts?

It’s an entirely novel, unaddressed question. I will tell you one place it’s been addressed. At the Justice Department, my old office, the Office of Legal Counsel, in one sentence in a 1974 opinion, said, and this is almost a quote, Because no man can be a judge in his own case, the president cannot self-pardon. And that was a throwaway sentence without analysis, but that’s basically the only official word we have on the self-pardon power. It’s never been tested in court. As you say, the scholars have a mix of views. Most of them think it’s not possible, but quite a few think it is. And the truth is that the Constitution is entirely silent on it. And you have to make an argument based on different kinds of principles, like structure or purpose and the like. And the argument is kind of cutting both ways. It’s never been tried before.

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But these things are not self-effectuating. It would require somebody to investigate and determine, and then, I guess, litigate. And then the Supreme Court would at some day, in 12 years, determine that self-pardons are either permissible or not. But this is not something that resolves itself based on a lot of academics fighting.

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Absolutely right. It would only be resolved, if at all, by court, probably by the Supreme Court. You might not have to wait until prosecution. Trump might be able to bring a case to resist even investigation for crimes that are covered. Possibly, I’m not sure. It would be premised on someone in the next administration going after Trump. For example, let me give you an example: Ford gave a blanket pardon to Nixon. He didn’t even specify the crimes. He just said for every crime possibly committed during Nixon’s presidency, he was pardoned.

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Some scholars think that’s not specific enough. But it was never challenged. And so that now actually counts as a precedent. And so you’re right, he might do it, and it might stand. There’s been speculation that a self-pardon might be self-defeating because a self-pardon might actually force the Biden administration’s hands to bring an investigation, to test the proposition. But it can only be tested and resolved definitively if an investigation is brought against Trump.

You mentioned the Nixon pardon and the ways in which it was very, very broad. It didn’t specify crimes. It just said this is a blanket pardon for this entire period of the presidency. In some ways that sounds in the key of the Michael Flynn pardon, where it’s very broad—anything within the scope of the Mueller report. And I guess it leads to this question you’ve now said, Nixon becomes the predicate for doing things like Flynn. Does that all become the predicate for the inchoate future crime, preemptive pardon that is now being talked about? There’s a discussion of future pardons for things that haven’t even been investigated or charged yet.

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Let me try to make some distinctions there. So I don’t think that there could be a pardon for crimes committed after the pardon is issued. I don’t think that’s what you were saying. You were talking about a pardon for crimes for investigations that haven’t even begun. And with regard to that category, there are more precedents than just the Nixon precedent. And there’s dicta in the Supreme Court that suggests that you can pardon for a crime, and a lot of amnesties do this, even if there hasn’t been an investigation brought at all for the crime. The crime has to have been committed at the time of the pardon if it’s covered, but there need not have been an investigation. Some scholars still debate this, but at least according to dicta and a couple of Supreme Court cases, and more importantly for these purposes, there’s a lot of practice of presidents issuing pardons, and especially amnesties covered by the pardon power, for actions where the actual crime was not specified. It’s not just the Ford pardon of Nixon. There are many more precedents than that.

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So that’s like the draft dodgers—

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Draft dodgers by Carter, the Whiskey Rebellion case that you mentioned, the Iran-Contra pardons by George H. W. Bush were actually like the Flynn pardon, as I recall. So what happened with Flynn has precedent behind it. And I have to say, in this context, when it gets to court, if it does, presidential practice will count a lot for constitutional meaning.

Which is essentially just saying that we defer, defer, defer, defer largely on these, right? There just is a general sense that pardons are going to be OK.

Well, that has been the practice in the Supreme Court so far. This is so for several reasons. One, as I said at the beginning, the pardon power is very broad. Two, the Supreme Court has always read it to be a broad power. And three, in contexts like this, where the text doesn’t really speak to the issue, the court tends to look at historical practice. Now, this is an historical practice that’s only by the executive branch. There hasn’t really been anything we can call acquiescence by Congress. So they might not give the practice as much weight as they normally would, but I think in fact, they would give it weight. And in these contexts, as you know, when the executive branch does something in an area where the constitutional meaning is unsettled, the more precedents it can support to and the further the precedents go back, the stronger the arguments end up being. For good or bad, that’s the way it works.

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So in a weird way, this goes back to the through line in your book, which is so much of this is constrained by norms and past practices, and just a general sense that the government is working to check and balance itself. And so in some sense, in this last coda to the story, we’re going to be the victims of just a whole bunch of presumptions of good faith and deference to the president.

In the pardon context, I do think that the president will receive deference. I also think that, yes, the main thing I have learned from the Trump presidency—and it’s a little embarrassing since I’ve been studying the presidency for 25 years, and I kind of knew this but didn’t appreciate it because it was never really called into question—is the amazing extent to which many of the constraints on the presidency kind of assume good faith, reasonableness, a sense of decorum, a sense of shame, and all of those things Trump has exploded.

To hear the rest of their discussion, listen below, or subscribe to the show on Apple Podcasts, Overcast, SpotifyStitcherGoogle Play, or wherever you get your podcasts.

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