Today I will have the pleasure of participating in a debate titled Civil Disagreements: Presidential Self Pardons. I will be debating Professor Brian Kalt, who believes that the presidents do not have the authority to pardon themselves. I will be taking the opposing position. The debate will be held entirely online. The debate is sponsored by Reform for Illinois, the American Bar Association, the Chicago Chapter of the American Constitution Society, and the Chicago Lawyers Chapter of the Federalist Society
I have long maintained that presidents do have the authority to grant self-pardons. That does not mean that I approve of the practice as a policy matter, but the question, in my view, rests with a president in using the authority granted under Article II, Section 2, of the Constitution, which defines the pardon power as allowing a president to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
I value the effort of these two legal groups to foster civil and substantive dialogue on these questions and look forward to the debate with Professor Kalt.
The debate will began at 1pm (ET) and participants can register here.
A huge thanks to GEB. What he stated in point 3 is what has been referred to as “The Deep State”. Republicans have been fighting this for years to no avail. Michael Flynn saw this problem and the nation witnessed what happened to that great man. It was only a foretaste of what was to come. Now, Mr. Comey states that Mr. Trump will be “Going after the DOJ”. There is nothing wrong with a good housecleaning. If folks working in the federal government are unable to support the new administration, then leave and get another job.
Comey is trying to “get ahead” of his coming arrest and incarceration to frame it as “coming after the good guys.”
DOJ and FBI are not good guys.
Comey is very right to be scared, as he is a key criminal operative to be prosecuted.
It does not matter whether they are the good guys or not.
We need very very little federal criminal law, There is very little the FBI does that should not be done by the states.
There is no general police power for the federal government in the constitution.
The FBI should be shrunk to the minimum necescary to enforce the very few federal criminal laws that are required.
There should be almost no overlap between federal criminal law and state criminal law. Where there is now – with few exceptions the federal law should be void.
While Federal law should have supremecy over state law – where there is a constitutional asignment of a power to the federal government, it should NOT even exist anywhere else.
John Say said: “The FBI should be shrunk to the minimum necescary to enforce the very few federal criminal laws that are required.”
I could support making the FBI a subordinate branch of the IRS. To be followed by repeal of the 16th Amendment.
Repealing the 16th amendment would not get rid of the IRS, or the income tax.
Remember that the tax on wages, which is the bulk of taxed income, was never questioned and never needed any amendment to permit. The 16th’s only purpose was to allow taxing income from property, such as rent, interest, and dividends.
And the current understanding of the direct taxation clause is so different from what it was 100 years ago that the 16th is probably no longer necessary even for that.
I’ll do you 1 better – FBI should be dissolved and any “useful” functions merged into US Marshals.
FBI cannot continue to exist.
Forget “going after the DOJ,” Comey, or anyone else; America must be repealed back to the Constitution, Bill of Rights, and Naturalization Act of 1790, of the American Founders and Framers, understanding that reprehensible slavery has been excised irrevocably from American history. Actual Americans must finally be allowed to enjoy their Constitution, Bill of Rights, and Immigration Law—they must be allowed to enjoy the complete America established by its Founders.
Lincoln ignored fundamental law, imposed martial law, seized power, suspended habeas corpus, smashed presses, threw opponents in prison, etc., to “Save the Union.”
Trump must pull a full “Lincoln” to “Save the Nation.”
George – the irony is that Presidents who were closest to being dictators – Lincoln, Wilson, F. Roosevelt, Biden – are rarely called authoritarian, whereas Presidents who exercised power cautiously – Nixon and Trump, for example – are called criminals. Thus it is shown that words are more important than facts.
How fast would Turley claim Bill Clinton was out of his mind if Bubba told the nation he would self-pardon. How fast if Obama said so…..How fast if President Biden said so……….Now since Turley believes Trump is above the law, it’s just fine with Turley.
FW – The pardon power is part of our legal system, not outside of it.
Self-pardon is the issue, not pardon power. The closest we ever heard that from a President was Nixon, who said if the President does it, it’s not illegal. And he was run out of town. To bad he didn’t have FOXNEWS or Turley, because being republican, Turley would have his back. Not so much a democratic President.
FW, Turley is a life-long Democrat but that aside, you misunderstand the issue. The issue is the scope of the pardon power vested in the President by the Constitution. And the particular question is whether the scope is broad enough to include self-pardoning. So, pardon power is the issue.
DoubleDutch,
The scope is laid out in the Constitution. Impeachments CANNOT be pardoned.
You are Welcome
Have been reading Mr. Turley’s writings for a few years.
Haven’t seen him say he felt Trump (or anyone) was ‘above the law’.
Why try to smear him with false accusations?
If the president can self-pardon, that would make them above the law.
A pardon is not above the law. It is the law
How fast would Turley claim Bill Clinton was out of his mind if Bubba told the nation he would self-pardon. How fast if Obama said so…..How fast if President Biden said so
Bulldust. The answer is the same no matter who the president is. The constitution gives the president the absolute and unlimited power to pardon. Therefore he has that power. It doesn’t matter whether it seems like a good idea or a bad one, it is the law.
Americans used to be opposed to third world nations that simply made up their own laws. Simply legalizing criminality and legalizing abuses of power.
Republicans almost successfully transformed the federal justice system into a “Dukes of Hazard” series, getting rid of all checks & balances and creating a “Rule of Man” (Constitution be damned) instead a “Rule of Law” (operating inside constitutional lines).
Nixon said presidents are above the law. George W. Bush simply renamed the war crime of torture and overturned the 4th Amendment without a constitutional amendment process. Trump is similar to the “Boss Hogg” character – basically the law is what Trump says it is, not laws passed by the Legislative Branch Congress. We have a conservative member of the U.S. Supreme Court desecrating an American flag, then blaming his wife for it.
Any other American couldn’t disrespect any judge and disrespect American government the way Trump has. In fact the vast majority of defendants in the United States don’t receive a trial at all. Most defendants are coerced into plea bargains. Trump has received softer treatment than any other defendant in American history.
The real danger here is the perception by average citizens. The rich and powerful elites are above the law, laws only apply to us lowly citizens. Regular citizens rarely receive a fair trial and regular citizens would go to jail if they did what Trump did.
Now we are considering self-pardons to pardon elite rich people. Why even vote anymore?
+100
I wish that SCOTUS would hurry up and rule on the Presidential immunity issue.
I am hoping they rule that Presidents do enjoy complete and total immunity.
Then Biden can order a cruise missile strike on Mar-a-Lago and rid us forever of the orange scourge.
Brandon doesn’t have the balls
Besides, Mar a Lago has missle defense systems purchased and deployed
Jared acquired them from Trump ally, Israel, when he officially declared Jerusalem the capital
Well, if you know that, let me ask you a question……how does Santa come down the chimney? Or does he have the codes.
One thing that the proponent of self-pardons will have to address is the idea that someone cannot be the judge of his own cause. Obviously, that isn’t dispositive, but .. ..
so much for seperate but equal
But isn’t it akin to crowning oneself emperor, as Napoleon had done? Wasn’t the United States committed against doing what monarchies do?
BugAnon – please name a monarch or eve emperor who has ever pardoned himself.
They pardon themselves every minute that they don’t lock themselves in jail.
Edward, please read history, all absolute monarchies are above the law. Key word, absolute.
But isn’t it akin to crowning oneself emperor,
Impeachment, and defined length of term is the remedy
I beg your pardon. I never promised you a rose garden.
Conservatives do realize that allowing self-pardons is the fastest way to lose your 2nd Amendment gun rights? Any president, of any party, could simply seize your guns. Then that president could be convicted of violating the U.S. Constitution and federal statutes like 18 US Code 245 (federal laws defining constitutional rights).
A president convicted could simply self-pardon. You would lose your gun rights in less than 10 years. Trump may be good at business…actual governing not so much!
how is anyone going to seize my guns, when I am pointing a loaded one at that person ?
They can wear an Iron Man suit.
Democrat Presidents would have already done that if they could.
How is “the govt” going to “take” guns? LEO’s will NOT. The feds going door to door? Are you insane, delusional, stupid?
The President can issue an EO, but who to implement? Is the EO going to STOP the sale of guns? That wont last till sundown of the following day, before its stayed.
The President has lots of power. TO DIRECT others in the Executive Branch. The Feds worker bees cannot “take” guns. It has to be done by the regulatory state. Which means appeals and judicial. That’s assuming super majority in both houses. Congess can step in.
As long as the president spells out in detail what crimes he is has committed, then he should be able to pardon himself for those crimes.
Anything else, he could be prosecuted for.
No blanket pardons!
Now, Therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974
I don’t think that decision is up to you.
OK
This is exactly the nub of it.
Who can make the decision?
Yes, no pardons for blankets!
The constitution has no such limit on pardons. So you can’t impose one without amending it. Good luck with that.
This matter of Presidential Self-Pardons is another reason the US Constitution should be changed to adopt the Swiss style of Federal Council of Presidents.
In the immediate argument, a Federal Council of Presidents would consider the Pardon and grant it or not.
[In the Swiss system there is one Council chair that is ‘1st. among equals’. The Chair rotates once a year, so that a new ‘President’ hold the position per annum.]
The Swiss system could be modified to adopt the American at-large election of Chairs and Term Limits, etc…
So in essence the new system would effectively have 7 Presidents of which could hold office for two 4yr. terms (8yrs) and would act as Head (1st among Equals once).
It would put a lot of the shenanigans we have today out of business.
Time to evolve America.
https://en.wikipedia.org/wiki/Federal_Council_(Switzerland)
https://www.admin.ch/gov/en/start/federal-council/members-of-the-federal-council.html
If anything this Election Year has proven beyond all the other past election years, is how Flawed the system really is.
“The Presidency” has become embattled and held so by Our Keepers permanently.
The Time-to-Evolve has been proven.
The Swiss system could be modified to adopt the American at-large election of Chairs and Term Limits, etc…
The US does not have any at large elections.
We are closing in on 24 years existence. we have had less than 50 Presidents, I cant think of any harm done by Pardons.
I feel that ‘Diversity’ is an inherent in Democracy. Presidential Pardon’s (Self or Successor) are subject of the Uni-Party (today at least).
So when I think of the Presidency (a single seat) it gybes with Democracy.
Look , you can look at it in two ways: E pluribus unum Latin for “Out of many, one”
A. Out of many of the same thing, one (Uni-Party)
B. Out of many a diverse field, one (American Democracy)
A Federal Council of Presidents (in my opinion) fits the Executive Branch definition better than what We have today. (To sever the People)
I’ll grant you that the ‘Modifications’ (hybrid) of the How the Federal Council is derived and maintained is open to design (Holding at-large elections or Electoral elections, etc.), so long as considerations to it’s perversion can be determined and avoided.
This Election Year has been perverted beyond all others (IMO).
> The US does not have any at large elections.
Got it, I don’t feel the Electoral Collage is necessary, but that’s a different argument (and you can still hold as evidence against it, this years shenanigans to abolish it).
Got it, I don’t feel the Electoral Collage is necessary,
That’s because you ignore the fact we are Federalist form of Govt.
A federal govt that answers to the People and the States.
We are a union of states.
Yes, we differ on that
You differ from the Constitution. Not me.
Yes, I’m remiss. I differ with the Constitution in regards to the current Executive branch design and the election of it’s Officer(s).
I feel 7 Presidents (a Federal Council of Presidents ) is better than 1 President. Regardless of how they are elected (the Constitution and You can have your Electoral College).
7 heads are better than 1, and if it takes a Constitutions Convention to change things I would think that it could also address other problems with Elections [the EC].
It’s not going to happen – but you know there’s an abyss of thought between ‘it’s Not Going to Happen’ and ‘It Should Happen’.
I like Swiss cheese on my cheeseburgers instead of American cheese.
Anonymous said: “the US Constitution should be changed to adopt the Swiss style of Federal Council of Presidents.”
Even if that were 100% justified, you would never get the enabling Amendment ratified. In fact, I very much doubt that there is any chance of getting any Amendment of any kind ratified at the current state of the nation. That conclusion does not lend itself to a great deal of optimism about its future.
We should also adopt the Swiss system of making chocolate. It seems to be better.
Respectfully, Professor Turley, after today’s debate, I’d find it illuminating if tomorrow, you and Professor Kalt exchanged positions. Then you argued against self-pardon while he argued the affirmative. Afterwards, an interview with the two of you by a 3rd party (or or a group) to see what comes out of it, e.g. has either changed views/position and why.
1-Well Nixon was under threat of impeachment so I don’t believe he could have self pardoned by the criteria of the Pardon power as described in the constitution.
2nd-only a minuscule number of executive dept employees are “his employees” as being appointed by the President. If the president could hire and fire every executive dept employee at will then they might be “his employees”. I remind the Anonymous at 7:38 that it was an employee of the executive dept who instigated Trumps 1st impeachment. Although I would characterize Vindman as a mutineer.
3-I would not want to return to the “spoils system” but Obama instigated a spoils system in reverse to protect himself and to hinder every Republican President that subsequently came along after him by packing his partisans into “non appointed “ civil service jobs. That might be why the city of DC has grown even more Democratic. If we were going to have term limits, then maybe civil service employees should have 10 year employments (total and cumulative) limits then they would have to enter the private sector (gads!) after their time was up, so to speak.
4-Move DC to a cornfield in central Kansas. More central to the country with no beaches or boating for yachts. Strict building codes. Also the resulting co2 levels in Kansas would probably lead to a boom in corn growth. We might see cornstalks of such height as never seen before.
re: GEB
It’s unanimous among Watergate experts (both Republican and Democrats) that federal judge John Sirica was on track to convict Nixon of felony crimes and put Nixon in jail. Judge Sirica was nominated by Republican icon Dwight D. Eisenhower (Allied commander of the D-Day invasion during World War Two).
Republican Gerald Ford then granted a pardon to Nixon. Anyone that accepts a pardon also agrees that they were guilty of committing crimes.
Personally, the Watergate breaking wasn’t Nixon’s biggest felony. Nixon ordered the wife of his Attorney General John Mitchell (Martha Mitchell) to be kidnapped, drugged and falsely imprisoned. Martha Mitchell was a private citizen that never joined Nixon’s goon squad. There’s a great series starring Julia Robert’s titled “Gaslit” about Nixon’s violent felony crimes.
Nixon also wanted to purchase a fire truck and then fire-bomb the Brookings Institution in downtown Washington DC – commit a terrorist act in downtown DC. Nixon’s attorney, John Dean, warned Nixon that if anyone got killed in the arson attack, that Nixon himself could be convicted on negligent homicide charges.
If a self-pardon power existed Nixon likely would have carried out the arson attack in downtown DC.
Nixon committed felony crimes far worse than the Watergate burglary and he knew only a future president (Republican Gerald Ford) could pardon him for betraying his oath of office. Not a self-pardon.
WOW that is some major league yammering
GEB,
I’ve been advocating for decades to start moving the cabinet level agencies across Nation to all the States
What that would do is create a communication trail between the agencies and the White House. Shuts down one on one meetings, plotting mischief
GEB said: “If the president could hire and fire every executive dept employee at will then they might be ‘his employees’.”
You stimulated my curiosity with that assertion. My assumption would have been that the President can fire any Executive Branch employee that he can hire without Senate confirmation, or that such an employee can himself hire. However, the Constitution only specifically mentions “Officers”, and it seems a bit vague on the hiring and firing of same. First, it does not appear to do a very good job of defining “Officer”, and from context, the term as used seems to denote several different roles that could occur in each of the three Branches. Article II, Section 2, seems to state that the President can appoint “Officers” only with Senate confirmation (“consent”) but that Congress may pass laws delegating to him the appointment of “inferior Officers” (also not therein defined), which I assume means waiving the confirmation process for those employees. Article II, Section 4, describes removal of “Officers”, but seems even more vague regarding scope of application. Has the power of the President to arbitrarily dismiss Executive Branch employees absent a formal impeachment process been tested to any significant extent? Is the concept of “Officer” as expressed in the Constitution possibly derived from the Articles of Confederation, or prior practice in British law?
re: Number6
You might want to research the “Monica Goodling scandal” in the early 2000’s. I actually met Ms. Goodling once and she seemed like an otherwise nice well-intentioned person. Simply a well-meaning official that wasn’t properly educated on her Oath of Office employment contract. Congress could mandate that education in the future.
Goodling was probably well-meaning but just graduated from Bible college without much real world experience and no governing experience.
Goodling’s was the White House liaison to the U.S. Department of Justice. Goodling supported the foreign concept of theocratic-governing in violation of the First Amendment. Trying to impose George W. Bush’s religious interpretation onto federal employees at the U.S. Department of Justice.
Basically Goodling was trying to purge (fire) federal employees that were loyal to their Oath of Office to follow the U.S. Constitution and only keep federal employees that adopted the loyalty oath of 1940’s Germany – loyalty to a single person George W. Bush. Only keep federal employees disloyal to their Oath of Office. Trump seems to have continued this foreign practice demanding disloyalty to the American Oath of Office of all federal employees, adopting Germany’s WW2 system of government.
The big mistake Goodling made was trying to fire federal prosecutors that attended America’s best law schools. Apparently Bible college didn’t teach them that.
To avoid criminal indictment, Goodling provided full testimony to Congress about Bush officials trying to illegally purge the U.S. Department of Justice. It’s a great series of articles covered by most newspapers in the early 2000’s.
Anonymous said: “You might want to research the ‘Monica Goodling scandal’ ”
I refreshed my memory on that controversy, and, while it was an interesting read, since David Iglesias and the others held positions that were among those that do require Senate confirmation (and would presumably likewise require impeachment for involuntary removal from office) it really did little to answer my fundamental question. In the process of that research, I also did some reading on the Lloyd-La Follette Act, and the Civil Service Reform Act of 1978 which supplanted it. Also interesting reading (both) but did little to demonstrate for me the Constitutional basis for restricting the President from teminating his own Executive Branch employees (other than those requring Senate confirmation) at will. Perhaps those restrictions are considered to be an extension of the Constitutionally-authorized delegation by Congress to the President of powers over hiring “inferior Officers”, but that would seem to be a stretch. Since I saw no mention of a SCOTUS decision in any of those analyses, I assume that either the Court was never asked to decide the matter, or never accepted such a case.
GEB said: “Move DC to a cornfield in central Kansas.”
Why not return to a rotating capital location? Seems very much in keeping with the concept of reigning in the administrative state.
1. is incorrect. There is nothing in the constitution to prevent a pardon while under threat of impeachment. It just wouldn’t stop the impeachment from happening.
2. ALL executive workers are the president’s employees, right down to the janitor at a post office, because the president IS the executive branch. There is no executive power other than in the president; therefore there is no executive branch other than the president. Whether he can hire and fire them at will isn’t relevant.
The correct word is power. Not Authority
Does the President have the Power to pardon himself?
Close, but not the proper question.
Who has the Power to challenge a Presidential Pardon?
Get back back to me with your answer.
A self pardon is having the power of a king. To be above the law. That’s not what the founders envisioned since they were setting up the constitution to avoid the same kinds of abuses kings have always been able to get away with.
If Turley really believes a president can self pardon. Then why didn’t he advise Trump to self pardon before he left office? The moment a new president takes office the former becomes a private citizen subject to the full force of the law as it applies to everyone else. Trump believes he has full immunity because he WAS a former president. Trump believes he’s truly above the law, because everything not going his way is unfair and unjust. But I digress.
If Turley really believes a president can self pardon then Biden can pardon his son, himself and anyone republicans are prosecuting and there’s nothing they can do. They have already failed at impeaching him. So in reality there’s really not much they can do other than harrass and investigate for eternity.
George. – what King pardoned himself?
Then why didn’t he advise Trump to self pardon before he left office?
Turley says in the body of this post, he believes a President should not pardon himself.
That is not the Debate question
Seize the Moment & Enjoy the Day Jonathan 🙂
“The debate will began (sic) at 1pm (ET)…”
Let me take a wild guess here and try to predict what will begin at 12:30 PM (ET), give or take a few minutes or so.
The “it’s not free speech unless it’s our free speech” crowd will give a practical demonstration on how it works. Complete with legal examples and cites…
And I hope that Professor Turley doesn’t roll his eyes when the demonstrators try to impose their point of view.
It might get his entire dissertation stricken from the record…
Sorry….forgot….
Sieg Heil!
(insert rolling eyes emoji here)
Respectfully disagree with Turley on this one.
The purpose of our U.S. Constitution was to only make presidents powerful enough to correct the weaknesses of the Articles of Confederation (governing by committee) – not to create a King George monarchy in America (the theocratic monarchy we declared independence from).
The Framers of the Constitution wanted Congress (representing the people) to be the most powerful, so Congress’ authorities are listed first under Article I powers. To make clear America has no kings or dictators, presidents were listed second in Article II powers.
When the original Constitution was ratified in 1789, the “Anti-Federalist” states were concerned that the federal government might try to assume domain (abusing their authority) over state governments. So part of the deal was a Bill of Rights would be added soon after ratification. No Bill of Rights meant no constitution.
In order to ratify in 1789, a Bill of Rights would be added 2 years later in 1791. For so-called originalist folks, the purpose of the Bill of Rights was to “restrain” government authority. To clearly define authorities that no government official has over citizens.
For example: unlike King George of England, no American president or agency has the authority to violate the 4th Amendment search & seizure (to search one’s home, car or computer) without applying for a search warrant approved by a judge. The most important part is the government official risks penalty of law (even prison) for misleading a judge when applying for the judicial warrant. Bush’s “Preemption Doctrine” was a blatant violation of the 4th Amendment since search & seizure is only granted based on evidence of “past” crimes, not preventing future crimes.
Self-pardons also don’t make logical sense, since presidents control the Executive Branch U.S. Department of Justice. Presidents control federal prosecutors and the federal attorney general. Why would presidents need protection from his or her own employees?
If pardons are even necessary at all, they would be used for legitimate weaknesses and injustices of the American Justice System. Nixon would have never resigned if he could have simply self-pardoned himself.
So-called Conservatives should ask themselves if they manufacture a self-pardon authority under Article II powers, what happens when the next Obama or Hillary becomes president. Remember that, making up lies about Obama and Hillary trying to lock them up.
What about 2nd Amendment gun rights? Any president could seize your guns and then self-pardon themselves. Self-pardons would cut both ways!
If Turley considers the letter & spirit of the whole U.S. Constitution – in full context – the Framers never intended for any president to have self-pardon power.
@Anonymous,
Great post!
Anonymous said: “so Congress’ authorities are listed first under Article I powers. To make clear America has no kings or dictators, presidents were listed second in Article II powers.”
I wouldn’t go so far as to state that your conslusions are completely implausible, but neither do I find tham compelling. You claim that the States ratified the Consitution because of a stated (unenforceable) committment to enact a Bill of Rights limiting its power at a later date? I have no doubt that trust in leaders was much greater then, but that still seems a bit naive. And I think that making an inference that the relative positions of Artcles I & II within the document is an explicit expression of priority of power is hightly questionable.
It doesn’t matter what the purpose of the constitution was. All that matters is what it says. Since it puts no limit on the pardons power, there cannot be any limit.
Is there a link?
lets debate why Democrats Fascists are funded by Republicans?
It is clear the rule of law is dead.
Ever since Hillary and Democrats across government worked with a Russian, foreign spy and 1/2 the US government to create a hoax to prevent Trump from being President and jailing people around him!
Not ONE Democrat went to JAIL
We need to DEFUND Democrats…end all Federal Aid to cities, states, colleges and non-profits….cut Federal Spending by 50%…take away the Centralized Power destroying America!
7O% of the federal budget is mandatory spending, which cannot be cut without Congressional action. This includes Medicare and Social Security.
5% of the budget goes to interest payments on the debt
So that leaves 25% in “discretionary” spending, which includes defense (11% of the entire budget).
So you want to eliminate the defense budget?
Seek mental help.