Subtitles section Play video
-
So recently, President Trump made an odd comment about the presidential pardon.
-
“The pardons are a very positive thing for a president.
-
I think you see the way I'm using them.
-
And yes, I do have an absolute right to pardon myself.
-
But I'll never have to do it because I didn't do anything wrong."
-
As bizarre as that may sound, Trump isn't entirely wrong.
-
Since taking office, Donald Trump has pardoned five people.
-
The act of pardoning criminals doesn't create many political allies.
-
So presidents usually wait until later in their term to issue pardons.
-
The past two presidents only began granting pardons late in their second year.
-
Trump, on the other hand, has already begun to exercise his pardon power.
-
And with several people close to the president being investigated by the special council, Trump's
-
pardon power might come in handy.
-
Some argue that by issuing pardons this early in his presidency, Trump is sending signal
-
that he is willing to bail out any of his political allies that might be targeted in the future
-
by the Russian investigation.
-
So what does the US Constitution have to say about the president's power to pardon?
-
The Constitution provides specifically for the president's pardon power.
-
It says that the president may pardon individual offenses —
-
federal offenses, not necessarily state offenses
-
and he cannot use the pardon power to avoid impeachment.
-
But as with most powers bestowed by the US Constitution, the presidential pardon comes
-
with checks and balances.
-
One of the principles underlying a separation of powers is that no one should be a judge
-
in his own cause.
-
So we have a system with a separation of powers and that separation of powers is one of checks
-
and balances.
-
The first possible check to Trump's pardoning power could come through the judicial branch.
-
When presidents take office, they're bound by the Constitution to take
-
the “oath of office."
-
And in that oath, they make a promise to:
-
“Faithfully execute the office of President of the United States."
-
That language of faithful execution — the idea is that this language migrated from private
-
law documents that limited trustees,
-
limited corporate executives, that they couldn't embezzle
-
they couldn't self deal, they couldn't use their powers to benefit themselves to the
-
detriment of others.
-
A future prosecutor could go into court,
-
Trump would walk in and say look I signed the pardon, with the papers then say look, look at my
-
signature, the way he always does. And the judge says sorry that piece of paper is not legally
-
valid, because it violated the part of the Constitution that requires faithful execution.
-
The next check to Trump's pardoning power could come from the legislative branch
-
— from Congress.
-
There's a clause in the Constitution that basically says Congress has the power
-
to make laws to ensure that the Constitution is followed by all branches of the government.
-
So the argument is that if Congress has the ability to regulate the means they cannot
-
take away the pardon power, but they may be able if it's necessary and proper to limit
-
for example, corrupt pardons or illegal pardons that would otherwise be unconstitutional, for example.
-
It's possible, let's say the president pardoned everyone,
-
who was white because for racist reasons. For example, that would clearly violate the Constitution.
-
There's almost no way to get that into court.
-
The only response here can actually come from Congress.
-
The most obvious check to Trump's pardoning power, though, is one that Trump's own legal
-
team has publicly recognized:
-
"The president of the United States pardoning himself would just be unthinkable
-
and it would lead to probably, an immediate impeachment.
-
Trump can pardon whoever he wants — even if that means shielding his political allies
-
from the Mueller investigation and even, plausibly, himself.
-
But he would almost certainly face impeachment hearings in Congress for doing so.
-
And as the Constitution makes clear — that pardoning power cannot be used to shield from
-
impeachment.
-
So in some ways voters themselves serve as a powerful check against the president's pardoning power.
-
But of course this all depends on Congress's willingness to move forward with impeachment,
-
should the need arise.
-
Elections are a crucial check because all of the departments are the people's servants, ultimately.
-
I think it's a tremendous political mistake myself for him to have urged that he has the
-
absolute power because no one in America thinks we have a monarch
-
whether you love Donald Trump or not.