Trump’s preemptive pardons are ‘clear evidence that crimes have been committed’

Rutgers Law School Professor Stacy Hawkins joins Yahoo Finance's Kristin Myers to discuss the constitutional aspects of the alleged White House bribery-for-pardon scheme.

Video Transcript

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KRISTIN MYERS: The Department of Justice is investigating a potential bribery-for-pardon scheme involving presidential pardons. This is a developing story right now, and the DOJ says that no White House officials are under investigation. That is also including the president, but the president is reportedly mulling over potential pardons for friends and family. So there are questions about what is and isn't allowed, really, when it comes to presidential pardons.

So let's go now to Stacy Hawkins. She's a Rutgers Law School professor. Constitutional law is one of her specialties, which is very good because I have many questions about what is allowed in the Constitution, professor. So I want to start first with this little bit from the Constitution. It's in Article II, Section 2, Clause 1. It says-- well, it goes on to say, "He shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment."

So we're already seeing here that there's built in some kind of limitations to presidential pardon powers. I'm wondering if this was the only limitation, as the framers saw it. Is the president allowed to pardon whomever for, essentially, whatever except for in cases of impeachment?

STACY HAWKINS: That is, essentially, true. And there were some concerns about how broad the presidential pardon power is in the Constitution, but those concerns were resolved by suggesting that, if there was any impropriety in the exercise of the presidential pardon power, that impeachment was really the remedy for that, that the president could be impeached for abusing his pardon power. But the pardon power was broad-- broadly granted, and the only thing excluded is impeachment itself.

KRISTIN MYERS: OK, so I hear what you're saying that, if the president decides to use this power with reckless abandon, essentially, Congress could come in and impeach him. However, right, we're at the end of the president's term. I think impeachment is incredibly unlikely. I don't even know how feasible it would be with just weeks left in his term. He could, essentially, pardon someone right before, the day before, he leaves office.

So, I mean, is there no sense of-- there's no recourse? Is that what you're saying? Does Congress have no ability to really limit the president's powers of pardons, especially, as we see this president using some of these powers in ways that have never been used before?

STACY HAWKINS: Absolutely, and that's exactly why because it is one of the fairly unfettered powers of the executive under the Constitution. And so Congress does not have any ability to limit the pardon power, nor does the court really have much authority to review the exercise of the president's pardon power. It's one of those political powers that really the court has said is vested in the discretion of the executive and is only accountable in his political capacity. That means, you know, voters can elect him out, but there's really no other political or judicial accountability.

KRISTIN MYERS: So President Ford pardoned the former President Nixon, even though, he had not yet been charged with a crime. Although, everyone knew what the crimes were. It was well documented and well reported. And we now hear President Trump considering giving pardons to his children, to his lawyer, Rudy Giuliani.

You know, leaving that example of President Ford and President Nixon to the side, how unusual is it for a president to use this pardon of-- power of pardons, I should say, as kind of a get out of jail free card for crimes that have not yet been prosecuted or, frankly, even alleged? Because I'm not entirely sure what crimes his lawyer or his children could have even committed. So it seems a little bit unusual to me for him to be handing pardons out.

STACY HAWKINS: That is very true. And what will happen is that there will be a bit of a tell by these pardons that there have been some criminal acts committed because what we do know, since the very early days of the presidential pardon, is that they can only be exercised for actual crimes. So wrongdoing has to have occurred, even if it has not been charged, and someone has not been convicted of a crime, but the crime has to have been committed.

And so, if he pardons people preemptively, he's, essentially, telling the public that these people have committed crimes. And we may not be aware of what they are, but the pardon is clear evidence that crimes have been committed.

KRISTIN MYERS: Is a pardon a blanket get out of jail free card? Or does it have to specifically refer to one particular crime or crimes?

STACY HAWKINS: Yeah, so it does go to particular crimes. Although, you know, multiple crimes can be pardoned. And, again, it has to be something that has actually been committed. It does not have to be charged or convicted, but it has to be specific in terms of there has to be an actual crime that is committed.

I mean, so, like I said, it will be a tell if the president pardons these individuals in so far as what is-- what is criminal wrongdoing that we may not have been aware of, but we will become, you know, aware of, should these pardons issue. The other thing--

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STACY HAWKINS: --that it's only applicable to federal offenses. And so, for instance, the Trump family and the Trump Organization is subject to criminal investigation in the state of New York. Those would not be subject to the presidential pardon.

KRISTIN MYERS: I have one really quick question for you here, professor. I'm wondering if you see this as, potentially, resulting in some sort of constitutional amendment if Congress sees-- if he does go through with some of these pardons, and Congress and the judicial branch see how it's being used and say we need to make sure this never happens again.

STACY HAWKINS: I'm not optimistic on that front. Again, we did contemplate this. At least, the founders did contemplate the abuse of the presidential pardon power during the original Constitutional Convention. And it was believed that it should be left to the exercise of executive discretion, and that, otherwise, the remedy of impeachment was sufficient to check the abuse of the pardon power.

So I'm not sure that those considerations have changed. I'm not sure that just because-- I mean, because, again, Trump has challenged a lot of our constitutional norms. He has engaged in unprecedented behavior that we have not really had to contemplate in the past, but I don't think that many people are contemplating vast constitutional amendments in order to remedy what they believe to be the challenges to our constitutional order that he's provoked.

So I don't expect that this one will pose a constitutional amendment, especially, because it's an extraordinarily difficult process to get passed. It has to be passed first by 2/3 of Congress and then by 3/4 of the states. And so that's a really high hurdle when we can barely get, you know, a majority of Congress to agree on anything these days.

KRISTIN MYERS: All right, well, that was a great breakdown for those of us who our civics lessons might be a little bit dusty in the back of our minds. Stacy Hawkins, Rutgers Law School professor, thanks so much for joining us.

STACY HAWKINS: Thanks for having me.