Constitution expert: President’s power to pardon largely unfettered

More from this show

TED SIMONS: WHAT DOES THE CONSTITUTION SAY ABOUT PRESIDENTIAL PARDONS? ESPECIALLY THOSE THAT PARDON SOMEONE CONVICTED FOR BEING IN CONTEMPT OF ANOTHE" BRANCH OF GOVERNMENT? FOR THE ANSWERS, WE WELCOME CONSTITUTIONAL EXPERT ROBERT MCWHIRTER, AUTHOR OF "BILLS, QUILLS AND STILLS," AN ILLUSTRATED HISTORY OF THE BILL OF RIGHTS. GOOD TO HAVE YOU BACK.

ROBERT MCWHIRTER: GOOD TO SEE YOU.

TED SIMONS: WE HAVE SO MUCH TO TALK ABOUT HERE AND NOT A HECK OF A LOT OF TIME. ACCORDING TO THE CONSTITUTION, WHAT POWER DO PRESIDENTS HAVE TO PARDON?

ROBERT MCWHIRTER: EXTRAORDINARILY BROAD POWER TO PARDON. ANY CRIME AGAINST THE UNITED STATES, THE PRESIDENT CAN ISSUE A PARDON OR AN EXECUTIVE CLEMENCY.

TED SIMONS: EVEN BLOCKING A FEDERAL JUDGE’S EFFORTS TO ENFORCE THE CONSTITUTION?

ROBERT MCWHIRTER: YUP. THERE IS A SPECIFIC CASE IN 1925, WITH PHILIP GROSSMAN, EXACTLY THAT CAN BE DONE. AND ANOTHER CASE ON THIS CAME FROM 1866 WITH A.H. GARLAND, PRESIDENT ANDREW JOHNSON PARDONED A CONFEDERATE SENATOR WHO BECAME THE ATTORNEY GENERAL OF THE UNITED STATES UNDER PRESIDENT CLEVELAND.

TED SIMONS: SO IT'S AWFULLY BROAD AS WE UNDERSTAND IT. WHAT ARE THE LIMITS AS FAR AS THE CONSTITUTION AND PRESIDENTIAL PARDONS?

ROBERT MCWHIRTER: HISTORY AND CUSTOM, BUT THERE IS NO OTHER LEGAL LIMIT, REALLY. FOR INSTANCE, A PRESIDENT CAN'T PARDON SOMEONE FROM A STATE OFFENSE, ONLY FEDERAL OFFENSE. WHAT THE CONSTITUTION SAYS, EXCEPT IN CASES OF IMPEACHMENTS. SO THE LIMIT IS, YOU CAN PARDON, BUDDY, BUT YOU COULD FACE AN ARTICLE OF IMPEACHMENT FOR IT. PRESIDENT TRUMP COULD FACE AN ARTICLE OF IMPEACHMENT FOR PARDONING JOE ARPAIO.

TED SIMONS: THESE PARDONS CAN OCCUR ANY TIME AFTER AN ARREST OR CONVICTION?

ROBERT MCWHIRTER: YES, EVEN BEFORE. REMEMBER, IN 1974 GERALD FORD PARDONED RICHARD NIXON BEFORE THE CRIMINAL CASE HAD EVEN BEGUN. HE DID PAY A PRICE FOR THAT. HE LOST THE ELECTION TO JIMMY CARTER.

TED SIMONS: CAN A PRESIDENT PARDON THEMSELVES?

ROBERT MCWHIRTER: THERE IS NO PRECEDENCE FOR A KING TO PARDON HIMSELF OR A PRESIDENT TO DO SO, BUT THE WORDING OF THE CONSTITUTION DOESN’T DEFINE IT. CAN A PRESIDENT PARDON HIMSELF? I WOULD SAY IF A PRESIDENT DOES, THAT IS AN ARTICLE OF IMPEACHMENT.

TED SIMONS: YOU WOULD THINK SO, BUT IT HAS TO BE THE ACTIONS OF THE CONGRESS. IF THE CONGRESS DECIDES WE'LL LET IT SLIDE, NO IMPEACHMENT. IT CONTINUES.

ROBERT MCWHIRTER: IN 1972, THEN SPEAKER OF THE HOUSE GERALD R. FORD WHO LATER BECAME PRESIDENT SAID THE GROUNDS OF IMPEACHMENT FOR HIGH CRIMES AND MISDEMEANORS ARE WHATEVER A MAJORITY OF CONGRESSMAN THINK IT IS AT THAT POINT IN HISTORY.

TED SIMONS: THUS WE HAD THE CLINTON IMPEACHMENT IN THE ‘90S.

ROBERT MCWHIRTER: TRADITIONALLY, IF YOU GO TO THE IMPEACHMENT PART OF THE CONSTITUTION, IT SAYS TREASON AND HIGH CRIME AND MISDEMEANORS. THE TERM MISDEMEANOR IS ONE WE USE TO DEFINE A CONVICTION THAT IS NOT A FELONY. BACK AT THE FRAMER'S TIME, A MISDEMEANOR WAS BAD BEHAVIOR. BAD DEMEANOR. MIS-DEMEANOR. SO ANY BAD BEHAVIOR, LIKE PARDONING JOE ARPAIO, COULD BE AN ARTICLE OF IMPEACHMENT.

TED SIMONS: I DON'T UNDERSTAND HOW YOU CAN GUARANTEE A NEUTRAL JUDICIAL PROCESS IF THE EXECUTIVE HAS THE RIGHT TO STEP IN ANY TIME, FOR ANY REASON, TO SAY, IT'S DONE. DID THE FOUNDERS INTEND THAT?

ROBERT MCWHIRTER: THE FOUNDERS PROBABLY NEVER THOUGHT ANYONE WOULD BE SO AUDACIOUS AND LACK OF ANY REFLECTIVE ABILITY TO DO SOMETHING LIKE THIS.

TED SIMONS: WOULD IT SURPRISE YOU IF PRESIDENT TRUMP, ONCE THE MUELLER INVESTIGATION, RUBBER MEETS THE ROAD THERE, JUST PARDONING ANYONE AND EVERYONE INVOLVED IN THAT THING.

ROBERT MCWHIRTER: IT WOULD HAVE SURPRISED ME THAT ANYONE WOULD HAVE DONE IT. IT IS NOT SURPRISING THAT PRESIDENT TRUMP WILL DO IT.

TED SIMONS: AGAIN, HE PARDONED SOMEONE -- WE TALKED ABOUT THIS WITH THE LAST GUEST IN CONTEMPT OF ANOTHER BRANCH OF GOVERNMENT. IS THAT LEGAL? IT SEEMS LIKE THE SEPARATION OF THE BRANCHES, THERE IS NO SEPARATION THERE.

ROBERT MCWHIRTER: AGAIN, GROSSMAN 1925, JUSTICE HUGHES’ OPINION SAID YES, THAT IS LEGAL. THE PRESIDENT CAN PARDON IN A CONTEMPT SITUATION WITH THE COURT. IT IS EXTRAORDINARY. EXTRAORDINARILY BAD FOR THE REPUBLIC. IT'S A POWER THE PRESIDENT HAS AND IT SEEMS TO BE AN UNFETTERED POWER.

TED SIMONS: WE HARKEN BACK TO EARLIER IN THE CONVERSATION WHEN I NOTICED THAT SOME SUPPORTERS SAID THE PEOPLE VOTED FOR ARPAIO, VOTED HIM OUT. THE COURTS MADE THEIR SITUATION KNOWN, THEY CONVICTED HIM, AND NOW THE EXECUTIVE BRANCH HAS MADE ITS OPINION KNOWN, THEY’VE PARDONED HIM. THAT'S IT. IT'S OVER. AGAIN, DID THE FOUNDERS INTEND FOR THAT KIND OF TIMELINE?

ROBERT MCWHIRTER: I DON'T THINK THEY INTENDED IT, BUT THEY WROTE SOMETHING THAT WAS BROAD AND ALLOWS IT TO HAPPEN. THERE IS NOTHING I CAN SEE THAT IS CONSTITUTIONALLY IMPROPER ABOUT WHAT PRESIDENT TRUMP DID WITH JOE ARPAIO. IT'S INCREDIBLY BAD. IT'S INCREDIBLY DISRESPECTFUL. BUT THERE IS NOTHING IN THE CONSTITUTION THAT YOU CAN LEGALLY BRING TO CHALLENGE THIS.

TED SIMONS: REGARDLESS, AS LONG AS IT'S FEDERAL CRIME HERE, NOT STATE STATUTES. FEDERAL CRIME REGARDLESS OF WHO IT IS, WHAT IT WAS, WHEN IT WAS, THE PRESIDENT CAN PARDON AT ANY TIME AND NOT GIVE A REASON?

ROBERT MCWHIRTER: RIGHT. THAT'S WHY WE SHOULD PICK OUR PRESIDENTS BETTER.

TED SIMONS: THANK YOU VERY MUCH. GOOD TO SEE YOU. VERY ENLIGHTENING. TUESDAY ON "ARIZONA HORIZON," A CLOSER LOOK AT THE HISTORY OF CONFEDERATE MONUMENTS IN THE STATE, AND A NEW REPORT DETAILS THE ECONOMIC IMPACT OF LOCAL NON-PROFIT ARTS AND CULTURE ORGANIZATIONS. THAT'S TUESDAY AT 5:30 AND 10:00 RIGHT HERE ON "ARIZONA HORIZON.” THAT IS IT FOR NOW. I'M TED SIMONS. THANK YOU SO MUCH FOR JOINING US. YOU HAVE A GREAT EVENING.

Robert McWhirter: Constitutional expert

Illustration of columns of a capitol building with text reading: Arizona PBS AZ Votes 2024

Arizona PBS presents candidate debates

Graphic for the AZPBS kids LEARN! Writing Contest with a child sitting in a chair writing on a table and text reading: The Ultimate Field Trip
May 26

Submit your entry for the 2024 Writing Contest

Rachel Khong
May 29

Join us for PBS Books Readers Club!

Super Why characters

Join a Super Why Reading Camp to play, learn and grow

Subscribe to Arizona PBS Newsletters

STAY in touch
with azpbs.org!

Subscribe to Arizona PBS Newsletters: