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The Presidential Pardon Power: What Are Its Limits?


President Trump recently tweeted an unusual suggestion - all agree the U.S. president has the complete power to pardon. Which raised the question, can the president pardon himself? Legal affairs correspondent Nina Totenberg went to find that out.

NINA TOTENBERG, BYLINE: No president in the history of this country has ever pardoned himself, though President Nixon and perhaps others may have contemplated it. Presidents Clinton and George H.W. Bush were each under investigation by a special prosecutor as their terms drew to a close, but neither chose to pardon himself.

President Trump's tweet responded to a Washington Post story reporting that he had discussed with his lawyers whether he could pardon himself. His tweet said, while all agree the U.S. president has complete power to pardon, why think about that when only crime so far is leaks against us? His new communications director, Anthony Scaramucci, appearing on CBS's "Face The Nation," confirmed that the president had discussed the pardon question.


ANTHONY SCARAMUCCI: He just doesn't like the fact that he has a two-minute conversation in the Oval Office or in his study and that people are running out and leaking that.

TOTENBERG: The president does indeed have broad, but not unlimited, pardoning power. The Constitution gives the president the power to grant pardons, quote, "for offenses against the United States except in cases of impeachment." So he can't pardon himself from impeachment, can't pardon anyone from state charges. And most, but not all, constitutional law experts believe he cannot pardon himself on federal charges either.

BRIAN KALT: A self pardon would be politically a disaster. The main check on the pardon power is political accountability.

TOTENBERG: Brian Kalt, author of "Constitutional Cliffhangers," says that President Nixon decided against pardoning himself because he feared his reputation would be left in tatters. In the end, Nixon was prepared to keep fighting, but his base in Congress was not.

KALT: It was when the Republicans in Congress told Nixon that he had to go that he knew that his time was up.

TOTENBERG: But Kalt, who's been writing about presidential pardons since 1996, knows that when Nixon faced impeachment neither Congress nor the electorate was so dug into partisanship as they are today. And he worries that those Republicans willing to defy Trump, if there were to be an impeachment proceeding, could pay a political price. The framers of the Constitution put the presidential pardoning power into the founding document in order to correct unjust prosecutions or convictions, both of which had occurred frequently in England.

At the Constitutional Convention there was a proposal to exempt treason from the president's pardoning power, the notion being that if a president conspired with subordinates to commit treason he should not be able to protect himself by pardoning fellow conspirators. But Professor Kalt of Michigan State University notes that the founders rejected the proposal because they said there were and are other remedies.

KALT: If he does that, we impeach him and we prosecute him. Now, that last bit - and we prosecute him - is one of my pieces of evidence that the president can't pardon himself.

TOTENBERG: The Justice Department did issue a legal opinion during the Nixon administration saying that the president could not pardon himself because under long-established legal principles no person can be the judge of his own case. On some pardon questions there is no dissent. A president can issue a pardon for past actions but not for future actions. He can pardon a person pre-emptively for past actions even if there's no charge or conviction. That's what President Ford did when he pardoned Nixon. It's what President Carter did when he pardoned all Vietnam War draft evaders, even though few had been charged.

And it's what the first President Bush did when he pardoned his former defense secretary on Christmas Eve, 10 days before his trial was to start, in connection with the Iran-Contra affair. In the current circumstance, President Trump could pardon any of the individuals under scrutiny in the Russia investigation. And that would make life very difficult for investigators, depriving them of their leverage to get at the truth. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.

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