Civics on the Rocks: Pardon Me?

By Anne Trominski:

In case you were unaware, things are a bit crazy in the United States right now. In an era of shocking news stories, unheard of court cases, and generally unprecedented political events, discourse has gotten a tad tense . . . some might even say divisive.

Can we still discuss the events of the day over the dinner table? Can we realistically look to the past to deal with the problems of today? Is there an appropriate cocktail to serve for the end of times?

Three friends tackle these topics and distract themselves with other tangents in their podcast Civics on the Rocks. Steve’s an engineer, Mack’s a history teacher, and Anne’s just trying to get the mics to work correctly (with varying amounts of success). The long-form episodes are released at the beginning of each month. Living in Texas, they have plenty of political fodder to chew on, but topics cover all types of history and government. The hosts are unrepentant geeks, so they are just as likely to drop movie references as knowledge bombs but, ultimately, their goal is to try and figure out how to be engaged citizens in modern America. They’re also drinking and making cheesy jokes while doing it.

Full episodes with citations (geeks, I say) are available on their website, CivicsOnTheRocks.podbean.com, as well as all the major podcast carriers and socials.

In this episode, the trio discuss the use and limits—or lack thereof—of presidential pardon powers.

Read the edited transcript or listen to the entire episode below. And click here for references to the facts and topics discussed throughout.

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This episode originally aired July 7, 2025.

Anne: The question of the day: Pardon me?

Steve: I'm sure I would if I could, but I don't have that power.

Anne: Who does have the power?

Mack: The president.

Anne: Only the president? Because it seems like pardons are handed out left and right these days.

Mack: At the state level. And it depends on each state and each state's constitution what pardon power each state governor has. And it's usually a state governor because a lot of the state constitutions sort of parallel the U.S. Constitution. But yeah, for the president of the United States, the president has the power to grant reprieves and pardons.

Steve: And commutations.

Mack: Well, no, it just says reprieves and pardons.

Steve: Yeah, but they do commute, so I think that counts.

Mack: Well, that acts like a reprieve or something.

Anne: What’s the difference between a reprieve, a pardon, and a commutation?

Steve: Commutations is a really, really long word and begins with a “c.”

Mack: And it’s got two “n’s.”  

Anne: This is going to go swimmingly tonight, isn't it?

Steve: 100%.

Mack: To commute a sentence is, the conviction stays. The conviction stands, but they get to leave early basically. And presidents will do that when you've had somebody that's been in jail for a while, they're near the end of their life. They're not especially healthy. And they get released to their family.

Steve: They're not a danger. Kind of a mercy kind of thing. We're gonna let you live out your days, sort of thing.

Anne: Right.

Mack: Whereas a reprieve may be like a postponement of when a sentence starts or like a reduction of a sentence. Whereas a pardon: a pardon is an erasure.

Steve: Legal . . .

Mack: It is as if as far as the law is concerned, as if the crime never happened.

Anne: Okay.

Steve: You were never tried, you were never . . .

Mack: It's not even like one of those things, you know, “Have you ever had anything expunged from your record?” It's like, well, okay, if I have, I guess it doesn't matter if I have to answer it in a thing. Not that I've ever had to answer that, but you know . . .

Steve: Because no one's ever asked.

Mack: But yeah, a pardon. It's like PFFT, it's gone.

Steve: Wiping the slate clean.

Mack: I wouldn't say clean.

Steve: Wiping your legal slate clean.

Mack: When you think about some of the people that have been pardoned, especially recently.

Steve: Well, that's why I said legal, because there's this interesting of the . . . And you see this in some people's writing about people who've received pardons recently, as they call them “adjudicated,” you know, terrorist. Or, “adjudicated” whatever. Because, while they may have gotten a pardon, it doesn't change the fact that, you know, that facts were developed, and a jury of their peers found them guilty based on the facts at hand of committing X crime. Yeah, they may have been pardoned from a legal standpoint, but it doesn't mean they didn't do it.

Anne: Right.

Mack: And publicly we still know.

Steve: Yeah. And that’s thing, everybody knows. So in reality, it's still there. And so I've seen some reporters pivot to using terms like “adjudicated” to describe that --

Mack: That is correct.

Steve: Yeah. They were judged to have done this thing. They aren't convicted anymore.

Mack: Formerly convicted. So, there is also the question of, like, why give the president a pardon power? And, specifically, it was meant to be a check on, number one, on the legislature. If there were a law passed by Congress to, you know, criminalize something, and it just seemed, like, conviction under that law seemed just, like, patently unfair, that it is a way to check that. And now, well, then what would be the check on the president? Presumably, I mean, if Congress had enough votes, they could impeach him --

Steve: It was a check, but as I understand it, it was always kind of not intended as a categorical check, but intended more as a case by case, like, oh, Congress wrote this law, but in this circumstance, maybe they didn't foresee, it went horribly awry, and somebody got convicted and they shouldn't. Therefore, in the interests of greater justice, I can pardon this person because they really shouldn't have been convicted. It was just not fair.

Anne: Can you think of an example of that from history?

President Jimmy Carter

Steve: Well, one sort of like that that I can think of is—cuts against my argument, actually—but is Carter's pardon of draft dodgers. Where people were convicted of dodging the draft, but that was because they opposed the war.

Mack: Or some weren't even charged. They had still . . . He just sort of did it in advance.

Steve: And so he categorically said, well, these people, you know, they had an earnest disagreement and were against the went to war, and so we're just going to pardon that so that they don't have to have the stigma  of actual or potential prosecution of dodging the draft.

Mack: Or, like, more of the we need to get Vietnam behind us --

Steve: And move on. Which is actually not dissimilar to the Nixon pardon.

Mack: For the general reason . . .

Anne: I’m sorry. I’m going to tangent, it's my fault, but: what would be the sentence for dodging the draft? I mean, like what --

Mack: Well, we’d have to look it up.

Anne: I mean, what’s the rule?

Mack: Okay, so . . .

Steve: It’s criminal.

Mack: Well, yeah. So if somebody is going to be charged with a crime, federal or state, there is, it's got to be a law. Okay. No, it didn't always have to because you could have common law crimes. And strictly speaking, I think in some states there's still some crimes that are common law crimes. But it is . . . Now, that doesn't mean that you just make up what it is. It's case law that defines what the elements of the crime is. But almost every single crime, state and federal, is defined by statute, by written law. And the punishments available for that crime are also in the statute. Now, the punishments are usually expressed as a range, because it's understood there may be some mitigating circumstances, you want to give the judge, or in some cases the juries, a certain amount of leeway. But no, if somebody is going to be charged with something, that's because it's got to be in a criminal statute that you can be charged with it. And so, we would have to look up dodging the draft. What are the penalties? And I don't know them off the top of my head.

Steve: The other reason that there is a pardon power at all, and partly why it was granted in the Constitution for the president, is just because, like, there's this long historical precedent of kings, monarchs had the ability to pardon people since time immemorial. So given they were coming out of or building on that history, that the executive had a pardon power. And so they kind of to some degree carried that forward and figured out a way to have that capability within the context of the democracy republic, three branches, yada, yada.

Anne: That’s—sorry, I’m doing it again—that’s actually really interesting. I’m wondering if there is a governmental system where they don't have that kind of  . . . if there is no pardon available.

Mack: Well, okay. Let's talk about Texas.

Anne: Okay.

Mack: But first let me say something else about the intention of the pardon power, because, again, part of it was, like, if there was a law that turned out to be applied in a way that was not anticipated or if it was just an unjust law. But then the other main reason was if there was a trial and a sentence that was a miscarriage of justice, because it was recognized that that could happen.

Steve: Yeah. Just because you’ve beaten the law, the law was good, the jury and judge could have gone off the rails.

Mack: And now there's a few other things that we will, that will come up that we'll need to talk about, about the pardon power in the Constitution. But when it comes to is there any

place where there isn't a pardon power? So in Texas, the governor has the power to pardon, but only if there is a recommendation from the State Board of Pardons and Paroles. So,

think about in the past, every time on the news, like, Texas was about to execute somebody, and there's some question as to the facts of the case. And the news, rather than, like, clarify what the actual facts were that were brought out on trial and say, but this person is saying this, and here's what happened on appeal, they just let people shout at one another and film the protests. And that was always really frickin’ annoying when they do that. But, no, the other thing is they sort of treated the governor of Texas, like, the governor of Texas could pardon someone or grant a reprieve just like the president could, and the Texas governor can’t. And we've mentioned this before that the government of Texas, as set up in the constitution of 1876, was kind of meant to be a relatively weak government and especially the governor. And so, there's a Texas Board of Pardons and Paroles, and the governor cannot pardon anyone unless it has been recommended by the Texas Board of Pardons and Paroles. Now, on the other hand, who appoints the Texas Board of Pardons and Paroles? And that's going to be the governor. So there's that.

Steve: Well, and it points out the fact that governors, as the state chief executive, have powers similar to the president, but state by state, it varies. And their pardon powers are not all the same among each other or the same as the president. So you're going to get variation, who they can pardon, how much they can pardon, criteria required, that kind of thing. You know, just footnote disclaimer.

Mack: Now . . . I do believe that the Texas governor has a limited power to grant a 30-day reprieve for, like, a death penalty case, like to give the person, like, for a final appeal. But, like, that's it. You know, he can't commute the sentence. He can't pardon the crime, unless it's been recommended by the Texas Board of Pardons and Paroles.

Steve: So you get into the weeds, and there's some nuance about what exactly they get to do, but the president’s is relatively broad.

Anne: So, I mean, how broad? Are there any specifics put on it?

Mack: Absolutely broad, almost absolutely broad. Because I’m going to make an argument about something that isn't written down.

Steve: Well, okay. Yeah, I think I know what that is. Before you go to that: crimes. Not civil judgments, first of all.

Mack: Oh yeah, it's only criminal.

Steve: If you break a, if you go against a law, and it's a civil-penalty-type case, like let's say --

Mack: If you're sued for something.

Steve: Sued for something, or the government pulls you up and fines you for something or whatever, the president can't just make that go away with a pardon. That doesn't work. It's only if you've committed a criminal offense as defined in the law. And on the individual, then you're potentially pardonable.

Anne: So like tax evasion.

Mack: That's a crime.

Anne: Okay. So what's a civil penalty under the . . .

Steve: I mean, like, environmental laws, usually. If you spill a bunch of oil in a river, you're civilly liable for damages.

Anne: And the president can't say . . .

Steve: He can't pardon you from that. Doesn't mean he couldn’t, like --

Anne: You still have to pay $1 million.

Steve: Yes. Now, it doesn't mean he couldn't, like, make it go away by messing with the administration somehow of it, like leveraging his authority over the EPA, for example.

Anne: Well, yeah, but if the conviction’s already gone through. Even if they change . . .

Mack: It’s not a conviction.

Steve: Yeah, it’s not a conviction because convictions only in criminal cases.

Anne: Right, but if the fine’s already been levied . . . like if they've already said you owe this, and then the law changes . . . they still owe it, don't they?

Mack: Yes. Okay. Wait. So this gets into something that I was actually going to talk about before as an example.

Anne: Okay.

Mack: To an earlier question. So if you’re—and let's go back to criminal, just for the sake of it—if you're convicted under law, and you’re sentenced to 20 years in prison, and then 5 years later that law is repealed, that means you get out, right? No. Because when you were convicted, that law was, you broke the law. And you were sentenced. And so this is one of those occasions where maybe, you know, and I think this is actually happened. I think Obama did this, but I'm not 100% positive. Where you started having states that said, okay, we're getting rid of our drug laws.

Anne: Right.

Mack: Like you can legally do marijuana. And so on, but the federal law is still in place. And so there was a time, and I know that . . .  So ,I remember this article, but I don't remember the title or where I read it, but I'll look for it. Where you had somebody with a brick-and-mortar pot shop in California. And it was legal under state law. The feds picked him up, and he's going to go to prison. But then, like, the following year, the Obama administration issues guidance—because that's all they can do, guidance—that for federal prosecutors, DEA, don't go after people with legal pot shops that are legal in that state. Let's focus on the transnational crime and the cartels and that kind of thing. And so then you started having more people set up pot shops in California that were not getting prosecuted by the feds. So that's not really fair that this guy is sitting in prison for doing the same thing that the feds are now no longer enforcing against these people. And so that can be another reason for using a pardon.

Steve: And it's always been, that's always when you hear the discussion, it's always the intent is to correct miscarriages, correct unfair situations or mercy or that kind of, like, post-rebellion, post-upheaval, trying to bring, knit people together. That's usually the rationale given for it.

Mack: Yeah, it's often a mistake. Oh, did I say that out loud? I'm sorry.

Anne: Okay. So the president can't pardon a civil . . . ?

Mack: Yeah. Also cannot pardon people convicted of state crimes.

Anne: Well, that was my next question. So if somebody is convicted under a state law . . .

Mack: For instance Donald Trump. Thirty-four convictions under New York state law.

Anne: So another president couldn't pardon him?

Mack: Correct.

Steve: Absolutely not.

Anne: And, then, now you know what the next question is: Can a president pardon himself?

Mack: A president who's convicted of state crimes cannot pardon himself, because it’s state crimes. But, let's say you have a president convicted of a federal crime. Can he pardon himself? The Constitution does not say. But, as a, and I'm going to, and people could probably argue this is a bit of a stretch, but I'm going to go ahead and say a common law principle here. You cannot, the person with the pardon power cannot pardon themselves. Now, for people keeping along at home, they're going to be, like, well, if it's an impeachment . . . Okay, we'll talk about impeachment in a second. Okay. But if a president were, and here's the other thing that we have to set a sort of like the playing field for this. From the early 1970s, the Justice Department issued guidance to federal prosecutors. You cannot indict a sitting president. You can indict everyone else, but you cannot indict a sitting president. And there were reasons, and it has to do with the way the impeachment and expulsion thing is written and what it says afterwards, like, then they will be liable. Okay. So if you have a sitting president, they would not be convicted of a federal crime while they're a sitting president. And so if they were convicted, they would be out of office. Now a couple of things that could change. What if the Justice Department changes the guidance on that? So what if federal prosecutors do charge a president? Well, the president can fire them. You know, I mean, it’s --

Steve: What if the president decides to pardon himself for future acts?

Mack: Now, that's the other thing, is because Ford pardoned Nixon in advance of any charges being brought. The Justice Department was absolutely preparing charges against Nixon.

Anne: Oh, I didn't realize that.

Steve: Yeah, the language is kind of subtle, but yeah, it’s . . .

Mack: Yeah. The Justice Department was absolutely preparing charges against Richard Nixon. And Ford said, I do, by these presidents, I do hereby grant Richard M. Nixon a full free and whatever pardon for, like, anything he might have done. You know, in the White House. And so that was a pardon in advance of even being charged.

Steve: Now that's a good point. It wasn't, I don't think it was for future acts. It was for acts he had done that might in the future be charged.

Mack: Well, no, I think it was for previous. Because otherwise . . . Yeah, previous acts, not future acts.

Steve: Yeah, it was previous acts. But future charging of previous acts.

Mack: Yeah. So what the pardon clause says is “he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” It doesn't say for convictions, it doesn't say, it says for offenses. And so you could read that as suggesting, okay, that doesn't mean there has to be a conviction for there to be a pardon.

Steve: That makes sense. Yeah.

Mack: So then you would be back to what if a president is in the middle of being impeached and expelled and, actually, let me bring this up now. So the pardon power does not extend to cases of impeachment. So if somebody is being impeached . . .

Steve: Before you get to impeachment, I want to underscore one thing on the whole can't pardon himself thing.

Mack: Well, I’m gonna come back to that.

Steve: Okay. So there’s the common law aspect, but also just, like, almost, like, definitional, like, you can't be, underpinning concept, you can't be judge and jury of yourself.

Mack: That's what I meant by the common law aspect.

Steve: But I mean it's like, it's just a foundation. It's not even, like, precedent of it. It's just like, by the definition of the term, pardons for somebody not you. So you'd have to really distort things to justify that.

Mack: Yeah. No. So for impeachment, for cases of impeachment, the president cannot use the pardon power. So let's say a chief justice is getting impeached and expelled. The president cannot pardon them. And that's also, in part, because it is meant for crimes and impeachment and trial of impeachment is not a criminal proceeding. It is a political

proceeding. But in terms of, you know, can the president pardon himself, it would have

President John Adams

been, by the delegates that wrote the Constitution . . . Like, can you imagine John, asking John Adams this, what he would do to your face? Okay. It would have been clearly understood that the president would not have the ability to pardon himself, because that would violate a fundamental underpinning of constitutionalism and rule of law. And it's the kind of thing that we don't have to write that part down, sort of thing. But it's never, like, the Supreme Court has never had an occasion to say that, although they have had a bit of a history of saying of sort of, I don't want to say making up, because sometimes, like “sovereign immunity,” like 200 years ago there was, like, the first case where the Supreme Court was like, no, sovereign immunity is a thing. It may not be written in, but it's a common-law thing that we carry forward. But then there's the whole, well, a president can't really be charged with anything he does while in office.

Steve: There’s any number of things judges have made up that aren't really there, some of which, yes, they've written . . .

Mack: But there are common law things where it's like, no, that is a thing.

Steve: Yeah, there are some. Not qualified immunity.

Mack: No, qualified immunity is something else entirely.

Anne: Right. So you're talking about the Supreme Court ruling last summer.

Mack: Trump v. United States. Yeah. Where basically you would have to say that a president while in office is doing something not pursuant to his office. He's doing, like, he's not exercising a power of the office, and what he's doing is not pursuant to the office. But even then, no evidence could be introduced if it in any way related to a power of the office.

Steve: It was a muddled mess.

Mack: Well, okay, I'm going to I'm going to counterpoint that it wasn't muddled at all. It was pretty clear that their intention was a president could not effectively be charged with anything that he does in office once he's out of office.

Steve: They just didn't have the gumption to say it out loud.

Anne: So, I mean, basically for the current four years of this administration, because it's only gonna be four. We're all going to hold to that, right? Right, everybody?

Mack: Yeah. We can talk about that too later, if you want.

Anne: Like, the chances of him being convicted for anything he does during this four years is slim to none.

Mack: Zero.

Steve: Yeah, it’s not gonna happen.

Anne: But, when he's no longer president, because there will be a day. Right, everybody?

Mack: Yes.

Steve: Yep. For sure.

Anne: And he does some shit, which he's going to do. Then he could be convicted for that in the future.

Mack: Yeah.

Steve: Or old stuff, if the statute of limitations hasn’t run out.

Anne: Because we don't think he can pardon himself for future acts because you can't pardon yourself.

Mack: No. And you can't, like, he could not, because he can't pardon himself, he can't say, “Anything I do for the rest of my life, I pardon myself for.”

Steve: No, no, no.

Mack: You can’t . . .

Steve: Yeah, that’s not a thing.

Anne: And refresh my memory on impeachment. Impeachment . . . it can be, I mean, the Senate—and I know this Senate—but, like, theoretically a Senate could initiate an impeachment charge.

Mack & Steve: House.

Anne: House. Yes, sorry. The House could begin the impeachment charge if they think high crimes or misd . . .

Mack: Absolutely.

Anne: Whether or not a law per se has been . . .

Steve: Correct.

Mack: Oh, yeah, there's . . . and I even, I got into a brief argument with somebody about this online because, and it was related to one of the Trump impeachments. It's like, how can you impeach a president for something when it’s not a violation of federal law? And it's like, no, that's, like, well within the scope of the impeachment, that it doesn't have to be a federal law to be impeachable. I mean, it's treason, bribery, or other high crimes and misdemeanors. And it is what the House defines them as.

Steve: Whatever the House defines, they can be impeached by, and whatever the Senate decides, they can be convicted for. If they want to impeach and convict and remove you from office for wearing a tan suit, they can do that. To make a ridiculous example. Would you kind of expect there be overlap? Like, if he was “criming,” would you want him to be impeached? Well, yes. Is he likely to be impeached for something not a “criming?” Probably not.

Mack: Not if there is “criming.”

Anne: We’re going with “criming” now.

Mack: We’re going with “criming,” sure.

Anne: Okay.

Steve: But it's much easier to hang your hat on that also because also, let's be honest, congressmen are wusses and aren't going to go outside to what a criminal thing is. They're much more comfortable saying, oh, there's this federal crime, and you did it. I’m impeaching you.

Anne: Well, but, like, say both the House and Senate were, like, wholesale voted out in two years. It's possible we could get a whole bunch of people . . .

Steve: The House and a third of the Senate. Yeah. For sure.

Anne: That’s all it would take.

Steve: Or magically give them spines, yeah.

Mack: No, it might, because it's only a third of the Senate every two years, you're not necessarily going to have an outcome that gets you a two-thirds vote in the Senate.

Anne: I understand that. I'm saying --

Steve: Not by election. But honestly though, if you turn over a third . . .

Anne: Yeah, I bet you get quite a few . . .

Steve: But you might stiffen the spines of some of the remainder.

Mack: You could, but I wouldn't bet money on it.

Steve: No, no, no. But for this exercise . . .

Anne: But they tend to follow the strong breeze.

Mack: I'm sorry, but it's a pretty high level of cowardice in there: moral, political, ethical cowardice in Congress right now.

Anne: No, no, no. If they saw a third of their fellows voted out, you don't think they would immediately do whatever they could to stay in power?

Mack: I would not count on . . .

Anne: I'm not counting on it, but I am saying that it is a possibility.

Mack: Sure.

Steve: But I think you were going for some more, theoretical question there about if you had enough people in the Senate . . .

Anne: Yeah, you could impeach and convict the president, and then they would no longer be the president, at which point you could get them for the “criming”—as we say around here on Civics on the Rocks.

Mack: Then the previous vice president would now be president and would also have the pardon power.

Anne: Oh yeah. That sucks.

Steve: Yeah, but . . .

Anne: That’s a fly in my chardonnay.

Steve & Mack: (laughing) How ironic/That’s ironic.

Mack: In stereo.

Steve: Well, but it's also this, like, what's also, I mean putting aside the whole getting pardoned by your vice president thing, which totally could happen.

Anne: No. Honestly, I don't think this one would pardon the current president, quite frankly.

Steve: Well, no. But look at the logistics, like—No, I don't either.

Mack: I think it depends on how much money he gets.

Steve: But if you go through impeachment hearings and you have all these hearings and stuff and all this facts brought forward and evidence and testimony presented and that leads to an impeachment being voted on by the House, and then it goes to the Senate where there's even more evidence in theory they bring up, and the guy gets impeached and kicked out. I mean, honestly, the FBI's suddenly got all this crap handed to them on a silver platter. They're going to do more. I mean, they're going to vet, and they're going to do their own thing. But they got a whole bunch, so, oh yeah.

Mack: Well, and in fact, some of the stuff may have been gathered by the FBI depending upon whatever investigation may have been done.

Steve: Yeah. Independently or in coordination. So it's, they totally can go. . .

Mack: And just a reminder, FBI, usually if the FBI's doing an investigation, it's not public knowledge. If somebody is the target of an investigation, that's not public knowledge, historically, because . . .  No, I know.

Anne: It's not on Signal?

Mack: Hold on.

Anne: No, no, no I know.

Mack: But they do that because, like, they recognize that the result of an investigation could be, “Oh, it turns out this is not the guy.” And so you don't want to have the stigma attached to somebody that, oh, they have an FBI investigation—unless they’re maybe running for president.

Steve: See Mueller report.

Robert Mueller and his report—PBS

Mack: Well, but there's that too.

Steve: But that was his approach was the, I’m not going to say that I'm going to bring charges for any of this because I can’t literally charge him.

Mack: But he literally said everything up to . . .

Steve: Yes, yes. There's these three elements of the crime. All three elements have been fulfilled, but I'm not going to specifically recommend charges because that would be wrong.

Mack: And then when Bill Barr, again, rather duplicitously and cowardly, tried to characterize it as, oh, even Mueller has cleared him of whatever, and then Muller issued a statement basically saying, that's not what I said.

Steve: Yeah, it's not what he said.

Mack: In the most polite way you possibly could. But, I just, I'm going to write it one day. I'm going to write Profiles in Cowardice.

Steve: So, I think  . . . on pardons . . . it's worth noting that, I'm gonna say every president, every recent president, anyway, has given pardons, granted pardons that looked awful dodgy.

Mack: Midnight pardons. All of them. January 19th.

Steve: Yes. Okay, that’s the thing. All the other presidents went and gave all these dodgy pardons on their way out the door, because they knew they were dodgy.

Mack: Politically unpopular, so you do it at the last possible moment where it doesn't matter.

Steve: Yes. Because also then, A) you don't face as much blowback, your party doesn't get as much blowback. You still get to pardon whoever you feel like pardoning, whether it's a family member or a campaign financer or whoever it might be.

Mack: Or a major donor.

Steve: Yeah, exactly. So you get to do all that and still do, help your people out, but at least, it's that, you're helping them and it's just them. If instead you take the tact of, at the beginning of your term, pardoning a bunch of people who committed violence on your behalf, that's a very different dynamic.

Anne: It’s also a different dynamic if you, after doing that, wait a few months and the news cycle is going against you, issue a whole bunch of pardons so people are talking about that rather than what you're actually doing and trying to push through Congress.

Steve: Yeah. Well, yes. Although it's one of those interesting things, you distract from a pile of shit by making another pile of shit.

Anne: Yeah, but it's a pile of shit that—It's small potatoes. It's a small potato pile compared to the giant potato they're trying to shove through Congress right now.

Mack: I’m thinking of a scene from Jurassic Park. “That is one big pile of shit.”

Anne: You ain’t wrong.

Steve: But no, there is a distraction element, but also there's the, it's all also just shit. All of it. But yeah, but it’s, that's one of the things somebody I heard recently kind of made that contrast is that, yes, you can say other presidents have made dodgy pardons, but they didn't do it to ennoble the people to support them while they were in office. Which is really what's going on here. You know, you have people committed violence, and then if you pardon them on your way out, it's a, “Oh, hey, thanks for helping me, guys. Too bad didn't work out. Bye.”

Mack: Instead of pardoning them on your way in. Because you want them.

Steve: Yeah. Because you want them to keep doing that. So, it's a very, very different thing. So, the fact, the mechanism of the pardon, you know, we've covered and talked through, and, yes, you can pardon people, and it's basically an unchecked—they can’t, nobody can undo a pardon. I mean, it’s just a pardon. That’s it.

Mack: Once it's done, it’s done.

Steve: There's no judicial or congressional take backs.

Anne: But they can get arrested again.

Mack: For something different.

Anne: For something different. Well, what if they commit the same, like, let's pick a terrorist—they commit a terrorist act and get pardoned for that particular terrorist act. If they do another terrorist act . . .

Mack: Okay. Well don't confuse the crime with, like, the crime under the law with, like, the actual event. If they commit another terrorist attack, that's another terrorist attack.

Steve: That’s a new crime.

Mack: And so they can be charged with the same, under the same law, but they're not being charged with the same, like, specific crime.

Anne: No. But I'm, that's what I'm saying, is that it’s like, a pardon is for a specific one-time event.

Steve: Yeah. An offense.

Anne: Yeah, offense.

Mack: Well, unless it's, like, Gerald Ford: “for anything he may have done while in office.” But was specified, anything he may have done.

Steve: For an offense or a set of offenses. But not for, you don't get a blanket of, like, everything you committed under, you know, federal code Section 1312. You're pardoned . . .  forever. That's not how that works. It's a, if you did a crime yesterday, you're pardoned. If you did a crime in the last two years, or that one murder you did.

Mack:  Well, if you get new pardons for future offenses, why not?

Steve: Yeah, but you can’t do pardons. It’s not an occurrence.

Anne: Well, that's what I'm asking. Can we? Can he? Can they?

Steve: I’m gonna say no.

Mack: It says . . . “the power to grant reprieves and pardons for offenses against the United States.”

Anne: Okay. So didn’t Biden pardon Liz Cheney?

Mack: Oh, there were people he pardoned in advance in anticipation of the Trump Justice Department going after them.

Anne: Right, but did they actually do any crimes? Like, did Liz Cheney do a crime?

Mack: No. But that's not going to stop—that would not have stopped the Trump Justice Department for charging them and forcing them to go through trial. And even if, even on the thought of, okay, well, this is bullshit, and they would be found not guilty. Even if a judge doesn't dismiss this, still, the act of arresting them and the months it would take before the trial actually starts.

January 6 Committee—CNN

Anne: No. And I get why it was done, and I appreciate why it was done, but if Biden can do that, why can’t . . . ?

Steve: Because what Biden did was a pardon for past acts. It was the acts they did on the January 6th committee. That's what he pardoned them for. Basically anything they did related to that or whatever the topic was. So it was, while there might have been charges, indictments in the future for those acts, what he was pardoning was for past acts. It's the same as with Nixon.

Mack: Now, I did also, I want to bring up, a hypothetical that I will use in class to actually talk about some of the, you know, aspects of the pardon power. So Timothy McVeigh was charged and convicted and was sentenced to death. Federal, federal charges. I mean, federal office building and then the paperwork for the feds. So the feds step in. But he could also have been charged by the state of Oklahoma with 168 counts of murder, including --

Anne: For anybody at home who doesn't know who Timothy McVeigh is.

The Oklahoma City bomber.

Mack: Yeah, who murdered 168 people with a fertilizer bomb, including 13 kids that were on a second-floor daycare. And, so he was charged under federal statutes, and he was found guilty. He was convicted, and he was executed in May 2001. But let's say, hypothetically. Okay, you know, 2001. So let's say, hypothetically, a new president comes into office and in 2001, not George W. Bush, somebody else, because nobody we know would have pardoned him. That's an absurdity. But let's just say hypothetically . . .

Steve: President Bonkers McFace.

Mack: And let's say that that president pardons Timothy McVeigh.

Anne: I think he was running a casino at the time.

Mack & Steve: Running it into the ground.

Steve: (rimshot) How do you bankrupt a casino? I still don’t . . .

Mack: Let's say this president . . .

Anne: Bonkers Face.

Mack: President Jackass pardons Timothy McVeigh. There's nothing you can do. He's out. I mean, it's erased. But . . .  could the state of Oklahoma say, “Not so fast, Hoss. We're charging you with 168 counts of murder”?

But here's the thing there. A few years ago, there was a Supreme Court case that dealt with this. If you are, because it's the same act, but it's federal law versus state law. Could the state prosecute you for the same act, even though the feds have already prosecuted you? Because technically it's different laws. It’s different criminal statutes. And Oklahoma has their own criminal justice system. There was a Supreme Court case on this relatively recently, and I don't remember the outcome. I want to say the outcome was like they punted or something. It was like a procedural thing or something. I don't remember, because it is a possibility that, you know. Yeah. I mean, Timothy McVeigh gets out and he's like, “Hey, I've been pardoned, this great.” And then it's like, no, you’re going to Oklahoma jail.

Steve: There was—I’m gonna have to look this one up for you—there was somebody recently who, I want to say, got a pardon or something happened where they, their federal charges went away, but they were still in prison because they were convicted on, like, 200 years’ worth of whatever on state crimes, something like that.

Mack: On state crimes?

Steve: Yeah. So they were kind of serving concurrently. So it's one of those, like, weird ones where, like, it didn't matter.

Anne: I want to say that, like, there was a serial killer who, like, he murdered people in multiple states, and basically every state wanted to have their own trial.

Mack: Rafael Resendez-Ramirez, the train? The guy on the train?

Anne: Yeah. And they, like, every state was like, no, we're going to have our own court convict him. And then meanwhile, like, he had gone across state lines. So it was also a federal issue. And so it was  . . .

Mack: Well, the minute he goes on the train it was a federal issue.

Anne: . . . it was basically like they were making sure he was never getting out of anything.

---

Steve: So that’s pardons.

Anne: That’s everything on pardons?

Mack: No, there's, I mean, there's other, I mean, well, I mean, we could . . .

Anne: Okay, so --

Steve: Well, it's, the presidential pardon is very wide reaching, and it's not revokable or not reviewable.

Mack: Well, I don't think they really thought that a president would abuse it that much because if the president was going to abuse it, they would have thought, well, Congress will be a check on that because they could impeach him, and he’s a felon. If, I think they were assuming that, you know, you could have politicians that were corruptible, but not the level of cowardice that we have.

Steve: Well, yeah. Well, it's the, yeah. It's the very, the differing motivations, but also the fact you've got so many of them that it's crippled the entire institution. You know, you, sure you expected a couple, but, you know, but the hundreds that you needed to . . . ?

Mack: Not as the policies of one of the parties. Well, and, actually, for that matter, I should not, like, excuse the Democrats or say that or what they're doing is great. I mean, yeah, there's stuff that they're doing, but, like, as a party, they don't seem to be quite as organized as they need to be.

Steve: No, they could be doing better, but this is not their fault.

Mack: Yeah. Well, no, that’s not . . .  No, yeah.

Anne: That's another story. But we're talking about, like, these shady pardons at the end of a presidency, right?

Mack: Yep. Clinton pardoning Marc Rich.

Anne: Right. And, well, even . . .

Steve: That's a classic.

Anne: I mean, I understand why he did it, again, but Biden pardoning his son.

Steve: Yup. No, yeah, you can use that.

Mack: Well, his son also wasn’t going to be prosecuted, but he pardoned his son because, again, the Trump Justice Department was . . . The people that were going to be in the Trump Justice Department were itching to put in it, to put Biden in jail, to put Hunter Biden in jail. Put Liz Cheney in jail.

Anne: Well, okay. But, like, there are examples of presidents doing something not because they're particularly afraid of their political enemies. They’re, but they're doing it as the favor to the political donor. They're doing it as, you know, there are these, quote unquote, shady pardons . . .

Mack: I'm going to say that happens more often in the modern era than it did before. Not that it never happened before. It’s more a common practice, unfortunately.

Anne: And that's fine, but now it's a practice.

Steve: Yeah. Now it's a practice.

Anne: Are we okay with that?

Mack: No, we're not. And there needs to be an amendment that fixes the pardon power.

Anne: So that's my question. Is there a way for us as an American people to do something about it?

Mack: It’s got to be an amendment. We've got to convince two-thirds of Congress to vote out an amendment. And then we got to convince three-fourths of the state legislatures to ratify it.

Anne: And because, you know, when you're going to be running for office soon, are you proposing that we out—I mean, no pardons whatsoever? Or are we saying pardons with more guidelines?

Mack: So I'm going to say that the way that Texas does it is actually not a bad check on that, that a governor can't pardon someone unless it's been recommended by the Texas Board of Pardons and Paroles. I would just have a bit more check and balance on who gets on the Board of Pardons and Paroles. If we're going to do that at a federal level. I don't think I would do that. I think it's actually kind of a, like, a nice way to do it, but it's probably something that realistically would only work at the state level. You could adopt new language that basically starts with this language. And, but that makes clear that the pardon power shall not extend to, because it says except in cases of impeachment or pardoning oneself or pardoning, and we can just exclude some stuff and say there won't be pardons for this, or that, well, and I was gonna say --

Steve: Well, you could build in an override.

Mack: Yeah. Now how would you . . .

Anne: Who would do that?

Steve: Congress. Sort of like a defense.

Mack: Well, yeah. Like usually, it's like a law where you would need a two-thirds vote of Congress to override a veto.

Steve: Yeah. Very similar.

Mack: Like so you could have a two-thirds vote of Congress to override a pardon, which you may very well not get. I mean, it may be very difficult to get that.

Steve: You may, I mean, you're gonna have to have some kind of threshold that probably gonna be . . .

Mack: Because you don't want it to be easy to get. Because, again, one of the purposes of the pardon power is if Congress writes an unjust law. And so you don't want to make it easy for them to just reverse the president.

Steve: You could do three-fifths or, you know, yeah, I mean, you can come up with something if you, if you wanted to.

Mack: Three-fifths is less than two-thirds.

Steve: I know. But it's more than half. So you could come up with, you can come up with numbers. You can come up with some way to have a check. Kind of like overriding a veto. You could have more exclusions in there. There's ways that you, you can also have some . . . I saw somebody throw out some ideas about interesting timings. You know you could put timing restrictions, like, well it wouldn’t go into effect for X time, or . . .

Mack: You could also specify that, you know, no pardon shall be extended to acts committed in the future or to prior acts that have not yet been charged. You could do that if you wanted to. I'm not saying you necessarily should. You could.

Anne: Well, that brings up a good question because, like, take Nixon. I mean . . .

Mack: Nah.

Anne: No really. He's all yours. Ford could have pardoned him, like, after he was charged. Like, he didn't have to do it then.

Mack: Right. Which is why the federal prosecutors are, like, we're just going to let this go then. Because, like, conceivably they might have said, “Well, that's nice, Mr. President, but you're pardoning him for something we haven't charged him with. So we're going to go ahead and charge and get the conviction, and then, you know . . .”

Steve: And get all the facts out there.

Mack: . .  .  and his attorneys can appeal the charges to the, like, an interim thing to go to the Supreme Court to say, “Hey, we  . . . he can't even be charged at all. The president pardoned him.” And see what the Supreme Court says, to have them rule on it. But the point being, the federal prosecutors decided to just, like, yeah, we're done. We're going to drop it. If the president don't want it to happen and either way, even if we get a conviction, he's going to pardon him. We're not going to put all that time and effort in.

Steve: Yeah, what’s the point.

Mack: And besides Ford did make a point that we all know what he did. I mean the tapes. They had him.

Anne: Yes, and at one point, political scandal was enough to keep somebody out of office.

Mack: Well, and even somebody like Nixon could feel a certain amount of shame, for some things.

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[1:04:10]

Mack: Like, okay, if we were going to have a constitutional amendment to fix everything that's at issue or could be misinterpreted about pardons or that could . . . just to make it crystal clear. Or improve the checks and balances involved. Like, what would that language look like?

Steve: For the pardons, I think you're on to, I think the thing you can do to improve pardons is to add some clarity around things, like, you can't pardon yourself and you can't pardon future acts.

Mack: Expand the list of exceptions.

Steve: Add some exceptions to it to something that makes sense. I'd be up for some sort of bar for congressional overturning it. I'm also kind of the, for me, what is really different about the current pardons is less who and more when. The fact that he's pardoning people who can assist him in carrying out his unconstitutional wishes.

Mack: Who've already done that.

Steve: Yes, they have a background, so pardoning them now just enables them to help him continue that effort is bad and categorically different than anybody else's pardons. Other people's pardons smelled bad, but they were on their way out, and that was just granting favors because of their privilege. And that was not great.

Mack: It was shitty.

Steve: It was shitty. But it's a completely different kind of shitty. Yeah, so I'm almost, like, saying you want to do pardons. Cool. The president can do all the pardons they want in the last two months of their term.

Anne: No.

Mack: No, I wouldn’t do that.

Steve: No, but I mean, you know, I'm like something, like, doing some sort of limit would be not the worst thing --

Mack: Well, okay, yeah, some kinda, yeah . . .

Anne: I agree on the limits, but . . .

Steve: Yeah. My biggest thing on the pardons is just . . . Yeah, it's crappy that he's pardoning people to enable them to support him illegally.

Mack: And even violently. Like they did before.

Steve: He’s leveraging pardons in a way we've never seen, which is the clearest call I can think of for pardon reform.

Mack: And even though, I mean, there were a lot of his supporters that, you know, assured people, “Oh, he's not going to pardon the violent offenders. He's gonna just pardon the people that were like trespassing or, you know, spray painting or something or whatever.” And it's like, no, every last one of them. And I know some people were kind of like, some of the people that voted for him, that support him, you know, that gave them a little bit of pause. But it's also not stopping them from saying, like, if it comes right down to it, they’d vote for him again. I mean if it came right down to it, you could ask a lot of them --

Anne: Well, if it didn't stop them the first time, if they were okay with January 6th. If January 6th wasn't enough to stop you from voting for him, why would pardoning the people on January 6th be?

Steve: I think it's a deal breaker for some, but not enough.

Mack: Yeah. Well, I mean, it's, we've always had, like, single-issue voters, where there's one thing, they don't especially care who the candidates are. But like, which party is better on national defense, which party’s whatever. Okay. Well, it's them. So that's who I'm going to vote for. I don't really care about the rest of the stuff. But I think we're also kind of seeing in modern times the degree to which people vote on vibes.

Steve: Vote on vibes, vote on individual. It's not a policy thing. It's an individual/cultish kind of thing of, this is my guy.

Anne: Well, I think there's also the perceived idea of culture. Of the, we’re a certain type of culture . . .

Mack: “American” culture.

Anne: . . . and you're a certain type of culture, and I don't want your culture.

Mack: Diluting my culture. Why did 75 million people vote for him? They didn't all vote for him for the same reasons.

Steve: No, there were 75 million reasons.

Mack: And so that's something to keep in mind that there's a lot. It is, there's more going on than is going to get resolved in one article of some talking head that says, this is really the main thing. It's just a lot. And we just have to keep forging ahead.

Steve: Yes. Yes, that's the key. We've got to keep forging ahead.

Mack: Here’s to forging ahead.

Steve: To forging ahead.

Anne: To forging ahead.

Glasses Clink. 

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Anne Trominski was born and raised in El Paso, Texas, but now resides in San Antonio. She graduated from Trinity University after majoring in English and Communication. She spends her dull working hours as an editor for a major publishing company and her personal time as an oft-frustrated writer and amateur podcast producer. She has written two yet-to-be published novels, countless reams of heartfelt poetry, and has tried her hand at blogging a few times. Anne is also a gastronomist, amateur chef, and student of health science. She is a constant learner and explorer and likes to drop knowledge on others like it’s hot. Most recently, she helps disseminate social science info  through the podcast Civics on the Rocks.