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What The Constitution Says About The President's Pardoning Power

STEVE INSKEEP, HOST:

And let's continue this discussion with Kim Wehle, who is a law professor at the University of Baltimore and author of the book "How To Read The Constitution--And Why." Ms. Wehle, welcome back.

KIM WEHLE: Good morning.

INSKEEP: The president has said under the Constitution, his pardoning power is absolute. Is he right about that?

WEHLE: Well, that specific question hasn't been answered by the Supreme Court. The Supreme Court has construed the language very, very broadly. The - Article II says the president shall have power to grant reprieves and pardons, except in cases of impeachment. But in theory, for example, if a president were to pardon only Caucasian prisoners across the United States and leave all people of color in prison, that could be a violation of the Equal Protection Clause. Someone - a person of color could say, listen; that violates other parts of the Constitution, can't use the pardon power that way.

INSKEEP: Well, is there some part of the Constitution that could be used to say this was a corrupt pardon and, therefore, illegitimate?

WEHLE: Well, you could argue here that the pardon power was used potentially to cover up or legitimize wrongdoing in connection with the White House or that the pardon power here was used in a way that gives the president the judge - the power to judge himself in his own case.

These are more abstract arguments. There's not exactly any express part of the Constitution. But surely, if this were to get before a court, I think there'd be an argument made that this was an abuse of the pardon power. The question really comes down to how to get the question itself before the court. If it can't get before the court, however the president uses the pardon power becomes the new standard, the new normal.

INSKEEP: Is the simplest way we get before a court the fact that Flynn is before a court now? Judge Emmet Sullivan has already been reluctant to go along with the Justice Department dropping the case because it seems he wanted to know if there was a corrupt motive. Could he somehow resist this pardon in the same way?

WEHLE: He could. I mean, remember here, as Ryan said, General Flynn actually pleaded guilty. He knowingly, before the court pleaded guilty to this crime. So the notion that somehow this was a, you know, a crime that doesn't have a basis for conviction makes little sense. And in this instance, the judge said, I need to hear from someone on behalf of the government and the people who prosecuted this case on behalf of the people through the Mueller investigation, and then actually appointed a retired judge to make those arguments. He - because the Justice Department had basically gone in tandem with General Flynn himself.

He could say that again here. He could say, listen; I'm not going to dismiss this case unless we have a discussion around the constitutionality and legitimacy of this pardon 'cause, remember, this conviction came through the Mueller investigation. Former Deputy Attorney General Rod Rosenstein appointed Bob Mueller to be independent of the president of the United States. And now that independence has been completely shattered. And so that could be a question, although Judge Sullivan has a discretion to say, listen; I'm out. I'll move on. I'm going to respect the pardon power here and not even get into this.

INSKEEP: So we'll see what Judge Sullivan did. And now there's this question of other pardons, including the possibility of the president pardoning himself. I've heard different things about whether that is something that is forbidden or not. What does the law say? What does anything say that's relevant here?

WEHLE: Yeah. So, again, the question is how to get this before a court. So if Donald Trump were to pardon himself, there really isn't anybody else who would have what we call standing to go in and complain about that. We saw Gerald Ford pardoned Richard Nixon for all crimes, even crimes that were not actually charged within a certain date. That now has become the precedent. That is, no court has said that that's OK to have unlimited prospective, unidentified sort of crimes that were - that could be pardoned, but Gerald Ford did that.

So with respect to Donald Trump, you know, if he decides to do something like that, the only resolution to get that before court would be probably if the Biden administration decided to prosecute him, and then he would go before the court and say, listen; I pardoned myself. That is illegitimate.

INSKEEP: And...

WEHLE: But without that, we won't know.

INSKEEP: And is there a case to be made, in about 10 seconds, that you can't pardon yourself?

WEHLE: Sure. The impeachment clause - or, excuse me, the pardon clause says you can't pardon in cases of impeachment. That, I would say, is an indication that self-pardoning is a problem because impeachment, of course, is the way a president essentially gets fired.

INSKEEP: Kim Wehle, thanks very much for the insights. Really appreciate it.

WEHLE: Thank you for having me.

INSKEEP: She is a law professor and the author of "How To Read The Constitution--And Why." Transcript provided by NPR, Copyright NPR.

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