Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. Donald Trump has about six weeks left in office, and one way he may use some of that time is by issuing pardons. It's been reported that he's had conversations about partnering his lawyer, Rudy Giuliani, about partnering his children, and in the background is also something that Trump has said in the past, namely that he would have the power to pardon himself. To discuss presidential pardons and what Trump can and cannot do, I'm joined by Seth Berman. Seth is a former state and federal prosecutor. He's a visiting lecturer at Harvard Law School, and he's a partner at the law firm Nutter, McLennan and Fish, the firm originally founded by Justice Louis Brandon's. Seth was on Deep Background last fall to talk about the impeachment inquiry into Trump's presidency and woe have things changed a lot since then. Seth remains my go to person for all matters criminal and I'm thrilled to have him. Seth, thank you so much for coming back on the podcast, you were a prosecutor for a long time. You were an assistant district attorney in New York, and then you were an assistant US attorney in Boston. How do prosecutors feel about the pardon power? You know, in truth, no, I think most prosecutors feel nothing about it. The pardon is used so rarely that as a normal prosecutor, you almost never come across a pardon as a practical matter. In other words, I think prosecutors have very little contact with the pardon power. To those of us who think theoretically about these things, you know, it's a little odd, and a lot of it depends on, obviously, whether or not you think that a pardon was granted for a good reason or a bad reason. It feels like and it is a get out of jail free card. So if you think that someone shouldn't get out of jail free, the pardon seems wrong. I think that those of us who are thoughtful as prosecutors do understand that there are times when the criminal justice system ends up with results that may not be just, and the pardon power can be a way of addressing that when the system otherwise fails and I think this is particularly important in our system, where appeals are almost always essentially based on legal issues and not factual issues. So once a person has been convicted, the fact that facts themselves may look different years later is not generally a way out of a criminal conviction. So one way that the pardon power can come in handy is when you sort of have an underlying question about a prosecution, perhaps after the fact that the appeal system isn't so well able to handle. There are other ways of handling it, but the pardon power is one safety valve that I think has an important role. There are a bunch of really interesting things you said there. I want to go backwards. You were saying at the end that one of the reasons it's good to have the part in power is that sometimes the system blows it. Sometimes the wrong person gets convicted, stays in prison for a long time, and there's no simple way to get them out by arguing to a court that they were actually innocent the whole time. I think that's kind of counterintuitive to non lawyers. I think they think that, you know, if later on evidence comes up like a cold case, you know, you go to the authorities and they magically spring the person out of prison. But the reality, as you were saying, is otherwise. It's that you really need a legal reason usually to get someone out of prison, and the mere fact that they were wrongfully convicted on the facts isn't usually enough to get them out. That seems like it would be a really good use of the part in power. How often is the pardon power used that way? Rarely, and probably at the federal level even more rarely. The pardon power exists not only for the president, but governors typically also have a pardon power, and since most prosecutions are actually at the state level, the pardon powers probably more often used at the state level than at the federal level. Maybe we should create by legislation some special commission for reinvestigating those rare cases where you can prove that the person didn't really do it, and then we could move away from the pardon power, which you know, as you mentioned, it's to get out of jail free card. And it seems very monarchic or emperor like, and in fact that's where it comes from. I mean the founding fathers when they put the pardon power into the constitution. We're thinking of the King of England and the Kings of England. We're thinking about the Emperor of Rome, and there's a kind of by my Great justice and mercy I hereby pardon new thing going on there which seems really out of step with the idea of democratic or republican government. I certainly agree with that. I mean, the pardon power, at least in its broadest interpretation, seems like it is at least as ripe for abuse as it is for the use that I just described. And I agree that a better way to resolve that would be to institutionalize the safety valve aspect in some other way, which we really haven't done as part of the criminal justice system. And I think partly because of institutions like the Innocence Project. It is something that's now on the radar screen because we now have an understanding that more people are convicted of crimes they didn't commit than we should feel comfortable about. With that fact, it sort of invites a weight what is our long term solution to this. There is some attempt to try to regularize the pardon power, So there's in the Department of Justice a part in office, and if you want a pardon for your client, you're supposed to go to that office and file an official request, and they're supposed to be like an actual bureaucratic process of evaluation and analysis, which would then make its way eventually to the White House worthwhile cases, and if presidents just developed the custom of only pardoning people who'd gone through that process, then we might be able to solve some of the problem of the apparently arbitrary and potentially corrupt use of pardons by presidents. Why hasn't that really worked so far? Well, I think we should actually break that down into two time periods, right, which is like the before Trump time period and what we're worried about now. Before Trump, I think, to some extent that is how pardons worked, but it was never the only way pardons worked. Didn't Bill Clinton get into a lot of trouble At the end of the very last day in office, he pardoned people, including the financier Mark Rich, And then there was a whole investigation run actually by Jim Comey of what had happened. Absolutely so Clint got in trouble for that. He also pardoned his half brother who had been convicted of various drug crimes over the years, and George hw Bush before that pardoned the people who'd been in the Iran contrast scandal, as recommended by Bill Barr exactly. So I think there have always been people close to the president who got pardons as a parting gift, and I think everyone has long understood that the transition period, in the waning days of an administration is a time to start giving these gifts because there's little cost in doing so. You give them, your political career is typically over at that point, so it kind of doesn't matter. And even for the ones that caused an uproar at the time, those uproars go away. And you know, I don't think any historian rights of a president he was a great president except for those pardons he gave at the end of his term. Right, No one thinks of it as that important in the grand scheme of time. So if you're a regular person, you're a drug dealer, let's say, who's reformed, and you're deserving of a pardon in the for the whatever normal reasons one might be deserving of a pardon, that goes to the pardon office. But if you're a friend to the president or the other person Clinton pardoned somewhat controversially was Susan McDougall, who had been called to testify by the Whitewater investigation by Ken Starr, had refused to testify, had gone to jail for refusing to testify, and he ultimately pardoned her, so that Susan McDougall was rewarded for not testifying against Clinton. Interestingly, Susan McDougall's husband had gone the other way. He had cooperated. I think he did actually get convicted of a crime as part of that cooperation, and he was not pardoned by Clinton. Now it sounds like Clinton was really not so much better than we're worried that Trump would be. I mean family members. Check person who stonewalled in an investigation that went directly to criminality by the president. Check Rich Crony, whom we may not have known personally, but who knew people who knew him really well. Check. We have become a customed for four years to saying that Donald Trump is the worst of everything. But this sounds like an instance where it might not be that much worse than Clinton. Well, I think that to some degree it's a difference of degree rather than kind. What feels a little bit different here is that. First of all, Trump has floated publicly the pardon power in ways that seemed like he was publicly saying, if you don't turn on me, I will pardon you. And he has even said things like to agents of ice, he said, you know, you do whatever you want at the border. If you get arrested or you do anything illegal, all pardon you, which begins to feel like it's not just a get out of jail free card for the folks who are around him, but essentially a means of allowing the president to potentially commit crimes and face no consequences. That does sound like a difference of kind rather than of degree. So let's talk about whether the president can get himself into legal trouble around the pardon power. Is there a way that the president could grant a pardon that would itself constitute a crime? So the answer to that is probably yes, although as with everything with the president, you always have at best a probably. So. The easiest and most obvious way to do that is that there are a bunch of different crimes which happen when a public official essentially accepts something of value in return for doing their job or for doing something that they're supposed to do or are able to do. I should say so. For example, if the president decided to take a cash bribe in return for giving out pardons, like you just put them on sale on eBay and said, anyone who wants to pardon, the opening bid is a million dollars and you let me know that presumably would violate the bribery laws that prohibit a public official from taking money in return for doing some good they're allowed to do in their job, something they're allowed to do. You always have the problem with the president that the president is unique in the constitutional structure, and as a result, it's not always perfectly clear that a law that would apply to any other government official also applies to the president. I think that it would, but you can imagine room for a court to say that the president is so unique, the pardon power is so broad that he can do anything even that if he wants to. Although it is hard for me to believe a court saying about a president who's out of all and is being charged with a crime that it was okay for him to take money in exchange for giving a pardon, even if he has the pardon power. I mean, as you were saying the bribery Statute applies ordinarily to people in the government doing things that are within their lawful power, but doing it for corrupt reasons. This is one of the things that immediately came to my mind when I read the story that Rudy Giuliani and the President we're talking about a potential pardon. As I always do whenever I think there's a crime of foot I immediately made my first and only call to you, and I said, wait a minute, isn't this a crime? And you said, yeah, it could be a crime because the President owes Giuliani a lot of money for representation, and that could be construed as in some way a gift. The pardon could be a gift in exchange for the services, the legal services that Giuliani has rendered to the president. I think that that is true. And if you're asking me, as a prosecutor, would I prosecute that case. The answer, depending on the facts, is yes, if I could prove the facts as you just des them. But I still think that there is at least room for the President to argue that the pardon power is not like other powers. You know, if you're the city manager and you can give out permits to build buildings. Right, You're supposed to give out those permits only when they're warranted, not when you get a bribe. But the pardon power is not so limited. It seems to say you could do it anytime you want. Do I actually think that the Supreme Court would hold that that's, you know, crime doesn't cover the president. I highly doubt it, but I can't say that it's impossible to make that argument. And I've been surprised by how many of these expansive presidential arguments seem to have more legs than I thought they would prior to this president. Even if it were a crime to buy a pardon, is it possible that the pardon would still have effect even though a person achieved it and bought it criminally. I think almost any question that starts with would a pardon have power if? And then so hypothetical? The answer to that almost always is no court has ever adjudicated that issue. Right, So we have seen pardons that were given to broad groups of people. Jimmy Carter famously pardoned all of the people who had avoided the draft and fled to Canada. No one had ever pardoned quite that many people. Although I think George Washington actually pardoned people who were involved in the Whiskey rebellion, but it wasn't so many people. Is that absolutely an ironclad pardon? Everyone acted like it was. None of those people got prosecuted, So no judge ever answered whether or not that is a legitimate pardon. I think that that's part of the answer here. We don't really know. I suspect a court would try hard to invalidate that pardon, because how could you let that pardon stand, the bribery pardon. Do we know that it's invalid? I don't think we know that. You're building now to another pardon hypothetical, which is very much on everybody's minds these days, although we've been talking about it now for almost four years, and that is what if on the way out the door, Donald Trump pardons not only his friends, his family, his associates, ice agents, but himself. I have been on the record since the very beginning of this saying again and again in my columns, no, the president cannot pardon himself. A pardon is ultimately something you do to another person. It's a transitive verb. You pardon another person. You don't self pardon it's not logical, and it wouldn't have existed under British law, in part because you couldn't prosecute the king in the first place under a British law. Not everybody agrees with me on this subject, needless to say, where do you come down, Seth. Do you think the president could pardon himself and if so, that it would subsequently be respected by prosecutors so that it never went to court, or alternatively wouldn't be respected by prosecutors, and then a court would have to rule on it. I think the Biden administration, whether the President pardons himself or not, will be under great pressure both to prosecute and not to prosecute the president, and my guess is that they will decide to sidestep the issue and not prosecute him for the same reason that Ford decided to stop all prosecutions against Nixon, which is sort of we need to move on and we can't let the next four years be about the last four years. And I think that will probably carry the day at the federal level. What I actually wonder, though, Noah, is if Trump does pardon himself, I almost feel like at that point you almost have to prosecute him to try to prove that he couldn't pardon himself, because the self pardon is so outrageous as an idea, and the consequence of it is that a president can literally be lawless because while he's president, we say he can't be federally prosecuted, and then after he's president he can pardon himself on the way out the door. He could do anything and pardon himself. He could deal the election, as Trump is trying to do, but perhaps he could succeed and then pardon himself. He could shoot his opponent and pardon himself as long as he didn't violate a state crime in the process. So you're actually saying something counterintuitive that I hadn't really thought of before. You're saying, if the president were to pardon himself, he actually increases the risks that he'll be prosecuted, because if he doesn't pardon himself, the Biden administration will probably, all things considered, say it's time to move on. But on the other end, if he pardons himself, it just looks so outrageous and it creates such a disastrous precedent that if they have something, they can go after him for that would actually give them a reason to go after him. I think that's a fascinating idea. I mean, I think that they may decide to pass on it just the same, but I think the temptation to respond, particularly if there's a big uproar about it, will be much larger, and it'll be a lot easier to say, wait a minute, that's beyond the pail, right, like we're willing to let this slide. Perhaps, but you can't just say I can do anything as president and no one can ever do anything about it. Afterwards, We'll be right back. You mentioned Gerald Ford. He granted the most famous pardon in all of US history when he pardoned Richard Nixon. And the official optimistic version of that is that he wanted the country to move on. The more conspiracy theory view is that, look, Richard Nixon made Gerald Ford his vice president and then he resigned, and then Ford pardoned him. Surely, for someone like Richard Nixon, the fix was in in some way, either an explicit agreement with Ford or an implicit agreement with Ford to pardon him. In retrospect, how does that pardon look to you at a distance now, of you know, pushing fifty years. You know, was that a good thing for the country that we moved on or was it a preposterous thing that one of our most criminal presidents, at least until Donald Trump, just got away with everything. You know. One of the things I think that's very different between Nixon and Trump is that Nixon didn't really get away with everything right Nixon. Nixon had to resign, he lost the presidency and was publicly humiliated as a result. Trump goes out of office, he lost, but he goes out of office beloved by a shockingly high percent of the country, with a political party one hundred percent behind him. So far as we can tell, he hasn't been humiliated at all. He hasn't appeared to lose anything other than an election. But that happens to presidents, not because of this sort of thing. So I think the situation is a bit different, And the argument in favor of letting Nixon not get prosecuted may have been stronger than it is for Trump, because you didn't really think that Nixon got away with it right. He really didn't get way with it. He just didn't go to jail. So on that view, maybe we did it wrong. You know, maybe Nixon needed to go to prison so that future presidents wouldn't think, Okay, I'll be embarrassed, but you know, I won't have to actually pay the price. I basically agree with that, Noah, at least as it looks right now at this moment in history. In fact, I think one can make an argument for many of the pardons that have been used before that in retrospect, they all feel like a stepping stone to the point where we get to where a president thinks he can pardon himself. I think you could say something similar about Jimmy Carter's blanket pardon, or either Bushes or Clinton's pardon of sort of people involved in investigations of them, that it looks more and more deliberate now, and it's kind of become accepted because of those old pardons, Like it feels now like it was a slippery slope that had to end. Here. Seth, as we talk this through characteristically, you're raising issues that really make me think. And here are two thoughts. One is the pardon power isn't just symbolically dangerous. You know, president looks too much like a king. President can put himself above the law. It's very practically dangerous. If a president invited federal government employees to commit crimes on his behalf and publicly or privately promised them pardons, that really would allow a president to break the rule of law system in a pretty totalizing way. So that's scarier than I usually think about it as being. But that leads to a second thought, which is, why didn't Donald Trump really do that? I mean, he did say to the Ice agents, do what you need to do, but that wasn't for personal benefit. That was part of his outrageous antiimmigrant sentiment. He hinted clearly at various associates of his that they shouldn't testify and that he would reward them with pardons. But as far as we know, at least, he didn't directly say to anybody, just go ahead and break the law on my behalf and don't worry, I will pardon you. Why didn't Trump? This is speculative. Why didn't Trump abuse the pardon the system more during his four years in office than he actually did. It's always dangerous before a presidency has even ended to start discussing how historians will look back on it. So with that caveat, I'm going to go ahead and make that statement anyway. I think that when we look back on the presidency of Donald Trump, one thing that will be remembered is how Trump, deliberately or otherwise, was a genius at slowly raising the temperature of his outrageous behavior, and by raising the temperature slowly, he allowed the Republican Party to get used to a higher temperature of outrageousness. I think if on day one he had walked in and said I will pardon you, or you know, if he had fired Muller on day one, he might well have gotten impeached right then, and he might well have been convicted in that impeachment. But over time, as more and more Republicans came of the view that they would pretend not to hear and pretend not to see the stuff that was going on, the level of tolerance for things they were prepared to not hear and see went up. And I'm not sure that prior to the end of his presidency there was that tolerance for an outrageous use of the pardon power. But we've clearly reached the point where there might be. Now do you think we could ever get support for a constitutional amendment to take away or limit the president's pardon power. I mean, let's say Donald Trump pardons himself in ten or twenty years, you know, when Trump himself is no longer on the political scene, and assume, for the sake of argument, that later Republicans end up repudiating Trump, which I understand it seems like wishful thinking right now, but it might turn out to be the case historically. Do you think that would be the kind of act that could actually motivate Americans to vote for an amendment that says none of this anymore, it's not democratic. I think it's possible, but it's pretty hard to know right now. The thing that might make it happen is if a democratic president also use the pardon power in a way that Republicans found outrageous, and some the people could say, gee, you know, that's not so good. I mean, I do think it's going to be interesting to see how a bunch of political actors and judges who've been very deferential to presidential power when it was wielded by Donald Trump. I wonder how deferential they'll be when it's wielded by Joe Biden. And I think to a large extent, they won't be so deferential. So it's possible that when we get past this strange interregnum between presidents and we're fully into a Biden administration, that some of the support for the president can do anything because he's president will start fading from conservative circles. Just as you know, Obama was a tyrant in their view for executive orders that were nowhere near so weeping as Trump's executive orders, and yet when Trump issued them, they were his absolute right as president. You know, it'll be interesting to see how that plays out and whether we see over time a rethinking and maybe even a willingness to work together to reign in the power of the presidency so neither party has to deal with what they believe to be the dictator on the other side, What aspect of the pardon power have we not covered that you can think of? I think there's another what if we haven't covered? Which is one thing that's very unclear as I understand it in constitutional law, though I defer to you on this is how specific need to pardon be. So can you pardon someone for all crimes previously committed against the federal government without at all specifying what those crimes are? That's the so called blanket pardon, right, And I think that that's another thing that we might see tested now, because I'm fairly sure that if Trump decides to pardon people, he's not going to enumera what crimes they may have committed. This will certainly be true for himself or his children, and probably for Giuliani as well. Whether or not you can really say I pardon you for all crimes committed either in the last four years or any time in your life prior to this date, I don't know that courts are gonna like that idea. But isn't that effectively what gerald Ford's pardon of Richard Dixon was. I mean, it didn't detail all of the specific things that Nixon had done wrong. It just said he's off the hook. It absolutely was at least inform but I'm wondering if in practice it wasn't nevertheless, more clear what it was he was actually being pardoned for. If let's say, along the way, it had been discovered that Nixon had also shot the White House butler while he was in office, no one knew about it before, would people have thought that that pardon covered that too, because it was stated in such a general way. I'm not sure you're right. I'm just called up the text of that pardon. It does start by mentioning that there was a committee investigating Nixon for impeachment purposes, that there was a lot of coverage that as a result of acts or omissions as president, Nixon is potentially liable. And it also goes on to say that the trial you would take a long time, and we need to re establish tranquility. That's all the kind of like beginning stuff. But then the punchline, the legal part, says, I, Gerald Ford, do grant a full, free and absolute pardon unto Richard Nixon, I like the unto for all offenses against the United States which he has committed or may have committed or taken part in during the period from January twenty, nineteen sixty nine today he was inaugurated, through August nineteen seventy four. I don't think any lawyer could have read that pardon as excluding an unacknowledged act by Nixon like shooting the White House Butler. It seems about as clear as legal language can get. All. He's pardon for all offenses, right. I agree with you that that's the wording of it. I guess what I'm asking, Noah, maybe you're in a better position to answer this than me, is would the court be open to the view that the preamble in some way limits that and or that a pardon that broad just can't be valid because you can't just give absolution and say this person is permanently above the law for all crimes, whether I knew about them or not. Well, maybe you can. I mean, I guess my own view on the constitutional issue would be, though I would be very very unhappy about it. And although I would love to be able to say that the pardon power doesn't go that far. The origin of the pardon power as precisely a kind of monarchic or imperial get out of jail free card, allows the king, emperor, president to say, yes, you're forgiven for everything. Now. The one limitation that I think constitutional lawyers would accept is that you can't preemptively pardon someone for acts they haven't yet committed. You can't pardon someone or the future. And if you think about it, that's not completely obvious that that should be the case. I think the idea is implicit in the idea of a pardon that you're pardoned for past acts. You've done something wrong and now you're pardoned for it, not I advance pardon you for something that you're about to do in the future. You know, if you're committing new offense, you have to be pardoned for that again. But other than that, I think I'm pretty open to the idea that the grandeur of the pardon power, which I don't like, is nevertheless efficacious under the Constitution. And now, what do you think about the hypothetical wherein the president essentially promises I will pardon you after you commit the crime we're going to do together. That would be an impeachable act, that would be a high crime and misdemeanor. For the president to say that, it would not yet be the pardon. So if the president made that promise to pardon, that's not the same as the pardon. The pardon has to actually be issued, right, I agree that that's not the pardon. But the question is when the pardon comes around. Right, So, six weeks later they've committed the crime, right, is an illegitimate person? Is that pardon still legitimate given that it was agreed to in advance together as essentially a conspiracy to commit the crime? I mean as you said earlier when we were talking about whether an illegally obtained pardon would be valid, that is a really, really hard question, and the reason it's so hard is that it just seems preposterous on its face that something illegally, in this case, criminally obtained would nevertheless be valid. The counter argument, though, is that the whole point of the pardon power is that the president has the capacity to put certain things above the law, and so on that view, you could punish the president for it. He would be impeachable. He would be probably criminally prosecutable, certainly after his impeachment for that, if he were removed from office, or if he left office. But I have an instinct to say that it's possible that the actual issued pardon would still be valid because he was president when he did it, and that's a terrible conclusion. I don't want to reach that conclusion because I don't want the president to be able to effectively put himself outside the law, or to put his accomplices outside the law. But I guess I think probably that the pardon would be efficacious. The difference is that a pardon of himself wouldn't be efficacious, So he would himself still be criminally aliable. Seth. I began by asking you about how prosecutors feel about pardons. I want to conclude by asking you what it's like when you're on the other side of defense, when you're representing people who are charged with crimes, and sometimes even complete guilty to crimes. Does the possibility of pardon enter the minds of your clients? Does it enter your mind when you think, Gosh, that client probably shouldn't have pleaded guilty. Let's go try to get a pardon again. Pardons are fairly rare, so I can't say that it enters my mind as a strategy point, at least during the course of a normal case. In a normal criminal case with a defendant who's not connected to the president or governor, the typical way a pardon comes down is that the person first gets convicted, and then usually some significant time has gone by and the person has somehow proven themselves either to be innocent or reformed, and now you're making a pitch to the governor or the president that that person either should never have been convicted or somehow this needs to be wiped in light of their tremendous and unique service to the community that's happened since they were convicted, so it's typically long after the prosecution has already been concluded. Is it something that people think about? I think even most clients desperate for any port in a storm in the middle of a criminal case usually get that it's so unlikely and so far in the future that that's not the dream they're first thinking of. Do they think about it eventually? I think, particularly for well connected people, and I don't mean people connected directly to the governor or the president, but people who are the kinds of people who are my clients typically, which is to say, well connected, white collar, highly paid professionals. They've grown up their whole life with the understanding and the accuracy generally that if they keep working at something and keep pushing levers, they can make progress at whatever their goals might be. And I think those people also feel that way sometimes about pardons. After the fact, this is the most horrible thing they went through probably in their life. It's the thing that most besmirches their record, and they'd love to get it taken off. And I do think that some of those people do try to work the system, work their connections, work anything to get it removed from their record before they die, or even sometimes after they've died, their errors will try to do that, which is really a symbolic pardon entireleasins it matters no longer. But there are these posthumous pardons also. The answer is it doesn't come up that often, but it is something that people, particularly well connected people, do think about, and it is sometimes used even for the not well connected. For the safety valve reasons. We began the conversation with Seth. I just want to thank you, as always for stimulating my thinking so much, for teaching us so much, and for giving us the perspective from inside the criminal justice system on both sides of the fence. Thank you, Thank you. No as a pleasure speaking to Seth always gets my brain churning. In this conversation, I walked away with a sense that actually the part in power is potentially even worse than I've always thought it was, and that is really saying something. In the past, I've always focused on the undemocratic nature of the idea that the president is like a king or an emperor or a pope and can effectively step outside of the law to pardon people. The counterargument, of course, is that it's good for there to be mercy somewhere in the system. But talking to Seth really made me realize that a president who was clever about it and thought he could get away with it, could use the pardon power much more aggressively even than Donald Trump has done, and could use it to facilitate all kinds of criminal activity, either on his own behalf or on behalf of the policies that he wants by immunizing people against potential criminal prosecution through guarantees to them that he would pardon them. At the same time, Donald Trump hasn't gone quite that far, and even some of the pardons that he's talking about potentially issuing now have some precedent in the last days of Bill Clinson's administration. For the next six weeks, we're all going to be watching closely to see whom Trump pardons. It may come down to his last day in office. Here at Deep Background will keep a careful eye on it and will come back to talk about it more if there are major surprises. Until the next time I speak to you, be careful, be safe, and be well. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Gencott, our engineer is Martin Gonzalez, and our showrunner is Sophie Crane mckibbon. Theme music by Luis Guerra at Pushkin. Thanks to Mia Lobell, Julia Barton, Heather Faine, Carlie mcgliori, Mackie Taylor, Eric Sandler, and Jacob Weisberg. You can find me on Twitter and Noah Rfeld. I also write a column for Bloomberg Opinion, which you can find at Bloomberg dot com slashfeld. To discover Bloomberg's original slate of podcasts, go to Bloomberg dot com slash podcasts, and if you liked what you heard today, please write a review or tell a friend. This is deep background

Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. Donald Trump has about six weeks left in office, and one way he may use some of that time is by issuing pardons. It's been reported that he's had conversations about partnering his lawyer, Rudy Giuliani, about partnering his children, and in the background is also something that Trump has said in the past, namely that he would have the power to pardon himself. To discuss presidential pardons and what Trump can and cannot do, I'm joined by Seth Berman. Seth is a former state and federal prosecutor. He's a visiting lecturer at Harvard Law School, and he's a partner at the law firm Nutter, McLennan and Fish, the firm originally founded by Justice Louis Brandon's. Seth was on Deep Background last fall to talk about the impeachment inquiry into Trump's presidency and woe have things changed a lot since then. Seth remains my go to person for all matters criminal and I'm thrilled to have him. Seth, thank you so much for coming back on the podcast, you were a prosecutor for a long time. You were an assistant district attorney in New York, and then you were an assistant US attorney in Boston. How do prosecutors feel about the pardon power? You know, in truth, no, I think most prosecutors feel nothing about it. The pardon is used so rarely that as a normal prosecutor, you almost never come across a pardon as a practical matter. In other words, I think prosecutors have very little contact with the pardon power. To those of us who think theoretically about these things, you know, it's a little odd, and a lot of it depends on, obviously, whether or not you think that a pardon was granted for a good reason or a bad reason. It feels like and it is a get out of jail free card. So if you think that someone shouldn't get out of jail free, the pardon seems wrong. I think that those of us who are thoughtful as prosecutors do understand that there are times when the criminal justice system ends up with results that may not be just, and the pardon power can be a way of addressing that when the system otherwise fails and I think this is particularly important in our system, where appeals are almost always essentially based on legal issues and not factual issues. So once a person has been convicted, the fact that facts themselves may look different years later is not generally a way out of a criminal conviction. So one way that the pardon power can come in handy is when you sort of have an underlying question about a prosecution, perhaps after the fact that the appeal system isn't so well able to handle. There are other ways of handling it, but the pardon power is one safety valve that I think has an important role. There are a bunch of really interesting things you said there. I want to go backwards. You were saying at the end that one of the reasons it's good to have the part in power is that sometimes the system blows it. Sometimes the wrong person gets convicted, stays in prison for a long time, and there's no simple way to get them out by arguing to a court that they were actually innocent the whole time. I think that's kind of counterintuitive to non lawyers. I think they think that, you know, if later on evidence comes up like a cold case, you know, you go to the authorities and they magically spring the person out of prison. But the reality, as you were saying, is otherwise. It's that you really need a legal reason usually to get someone out of prison, and the mere fact that they were wrongfully convicted on the facts isn't usually enough to get them out. That seems like it would be a really good use of the part in power. How often is the pardon power used that way? Rarely, and probably at the federal level even more rarely. The pardon power exists not only for the president, but governors typically also have a pardon power, and since most prosecutions are actually at the state level, the pardon powers probably more often used at the state level than at the federal level. Maybe we should create by legislation some special commission for reinvestigating those rare cases where you can prove that the person didn't really do it, and then we could move away from the pardon power, which you know, as you mentioned, it's to get out of jail free card. And it seems very monarchic or emperor like, and in fact that's where it comes from. I mean the founding fathers when they put the pardon power into the constitution. We're thinking of the King of England and the Kings of England. We're thinking about the Emperor of Rome, and there's a kind of by my Great justice and mercy I hereby pardon new thing going on there which seems really out of step with the idea of democratic or republican government. I certainly agree with that. I mean, the pardon power, at least in its broadest interpretation, seems like it is at least as ripe for abuse as it is for the use that I just described. And I agree that a better way to resolve that would be to institutionalize the safety valve aspect in some other way, which we really haven't done as part of the criminal justice system. And I think partly because of institutions like the Innocence Project. It is something that's now on the radar screen because we now have an understanding that more people are convicted of crimes they didn't commit than we should feel comfortable about. With that fact, it sort of invites a weight what is our long term solution to this. There is some attempt to try to regularize the pardon power, So there's in the Department of Justice a part in office, and if you want a pardon for your client, you're supposed to go to that office and file an official request, and they're supposed to be like an actual bureaucratic process of evaluation and analysis, which would then make its way eventually to the White House worthwhile cases, and if presidents just developed the custom of only pardoning people who'd gone through that process, then we might be able to solve some of the problem of the apparently arbitrary and potentially corrupt use of pardons by presidents. Why hasn't that really worked so far? Well, I think we should actually break that down into two time periods, right, which is like the before Trump time period and what we're worried about now. Before Trump, I think, to some extent that is how pardons worked, but it was never the only way pardons worked. Didn't Bill Clinton get into a lot of trouble At the end of the very last day in office, he pardoned people, including the financier Mark Rich, And then there was a whole investigation run actually by Jim Comey of what had happened. Absolutely so Clint got in trouble for that. He also pardoned his half brother who had been convicted of various drug crimes over the years, and George hw Bush before that pardoned the people who'd been in the Iran contrast scandal, as recommended by Bill Barr exactly. So I think there have always been people close to the president who got pardons as a parting gift, and I think everyone has long understood that the transition period, in the waning days of an administration is a time to start giving these gifts because there's little cost in doing so. You give them, your political career is typically over at that point, so it kind of doesn't matter. And even for the ones that caused an uproar at the time, those uproars go away. And you know, I don't think any historian rights of a president he was a great president except for those pardons he gave at the end of his term. Right, No one thinks of it as that important in the grand scheme of time. So if you're a regular person, you're a drug dealer, let's say, who's reformed, and you're deserving of a pardon in the for the whatever normal reasons one might be deserving of a pardon, that goes to the pardon office. But if you're a friend to the president or the other person Clinton pardoned somewhat controversially was Susan McDougall, who had been called to testify by the Whitewater investigation by Ken Starr, had refused to testify, had gone to jail for refusing to testify, and he ultimately pardoned her, so that Susan McDougall was rewarded for not testifying against Clinton. Interestingly, Susan McDougall's husband had gone the other way. He had cooperated. I think he did actually get convicted of a crime as part of that cooperation, and he was not pardoned by Clinton. Now it sounds like Clinton was really not so much better than we're worried that Trump would be. I mean family members. Check person who stonewalled in an investigation that went directly to criminality by the president. Check Rich Crony, whom we may not have known personally, but who knew people who knew him really well. Check. We have become a customed for four years to saying that Donald Trump is the worst of everything. But this sounds like an instance where it might not be that much worse than Clinton. Well, I think that to some degree it's a difference of degree rather than kind. What feels a little bit different here is that. First of all, Trump has floated publicly the pardon power in ways that seemed like he was publicly saying, if you don't turn on me, I will pardon you. And he has even said things like to agents of ice, he said, you know, you do whatever you want at the border. If you get arrested or you do anything illegal, all pardon you, which begins to feel like it's not just a get out of jail free card for the folks who are around him, but essentially a means of allowing the president to potentially commit crimes and face no consequences. That does sound like a difference of kind rather than of degree. So let's talk about whether the president can get himself into legal trouble around the pardon power. Is there a way that the president could grant a pardon that would itself constitute a crime? So the answer to that is probably yes, although as with everything with the president, you always have at best a probably. So. The easiest and most obvious way to do that is that there are a bunch of different crimes which happen when a public official essentially accepts something of value in return for doing their job or for doing something that they're supposed to do or are able to do. I should say so. For example, if the president decided to take a cash bribe in return for giving out pardons, like you just put them on sale on eBay and said, anyone who wants to pardon, the opening bid is a million dollars and you let me know that presumably would violate the bribery laws that prohibit a public official from taking money in return for doing some good they're allowed to do in their job, something they're allowed to do. You always have the problem with the president that the president is unique in the constitutional structure, and as a result, it's not always perfectly clear that a law that would apply to any other government official also applies to the president. I think that it would, but you can imagine room for a court to say that the president is so unique, the pardon power is so broad that he can do anything even that if he wants to. Although it is hard for me to believe a court saying about a president who's out of all and is being charged with a crime that it was okay for him to take money in exchange for giving a pardon, even if he has the pardon power. I mean, as you were saying the bribery Statute applies ordinarily to people in the government doing things that are within their lawful power, but doing it for corrupt reasons. This is one of the things that immediately came to my mind when I read the story that Rudy Giuliani and the President we're talking about a potential pardon. As I always do whenever I think there's a crime of foot I immediately made my first and only call to you, and I said, wait a minute, isn't this a crime? And you said, yeah, it could be a crime because the President owes Giuliani a lot of money for representation, and that could be construed as in some way a gift. The pardon could be a gift in exchange for the services, the legal services that Giuliani has rendered to the president. I think that that is true. And if you're asking me, as a prosecutor, would I prosecute that case. The answer, depending on the facts, is yes, if I could prove the facts as you just des them. But I still think that there is at least room for the President to argue that the pardon power is not like other powers. You know, if you're the city manager and you can give out permits to build buildings. Right, You're supposed to give out those permits only when they're warranted, not when you get a bribe. But the pardon power is not so limited. It seems to say you could do it anytime you want. Do I actually think that the Supreme Court would hold that that's, you know, crime doesn't cover the president. I highly doubt it, but I can't say that it's impossible to make that argument. And I've been surprised by how many of these expansive presidential arguments seem to have more legs than I thought they would prior to this president. Even if it were a crime to buy a pardon, is it possible that the pardon would still have effect even though a person achieved it and bought it criminally. I think almost any question that starts with would a pardon have power if? And then so hypothetical? The answer to that almost always is no court has ever adjudicated that issue. Right, So we have seen pardons that were given to broad groups of people. Jimmy Carter famously pardoned all of the people who had avoided the draft and fled to Canada. No one had ever pardoned quite that many people. Although I think George Washington actually pardoned people who were involved in the Whiskey rebellion, but it wasn't so many people. Is that absolutely an ironclad pardon? Everyone acted like it was. None of those people got prosecuted, So no judge ever answered whether or not that is a legitimate pardon. I think that that's part of the answer here. We don't really know. I suspect a court would try hard to invalidate that pardon, because how could you let that pardon stand, the bribery pardon. Do we know that it's invalid? I don't think we know that. You're building now to another pardon hypothetical, which is very much on everybody's minds these days, although we've been talking about it now for almost four years, and that is what if on the way out the door, Donald Trump pardons not only his friends, his family, his associates, ice agents, but himself. I have been on the record since the very beginning of this saying again and again in my columns, no, the president cannot pardon himself. A pardon is ultimately something you do to another person. It's a transitive verb. You pardon another person. You don't self pardon it's not logical, and it wouldn't have existed under British law, in part because you couldn't prosecute the king in the first place under a British law. Not everybody agrees with me on this subject, needless to say, where do you come down, Seth. Do you think the president could pardon himself and if so, that it would subsequently be respected by prosecutors so that it never went to court, or alternatively wouldn't be respected by prosecutors, and then a court would have to rule on it. I think the Biden administration, whether the President pardons himself or not, will be under great pressure both to prosecute and not to prosecute the president, and my guess is that they will decide to sidestep the issue and not prosecute him for the same reason that Ford decided to stop all prosecutions against Nixon, which is sort of we need to move on and we can't let the next four years be about the last four years. And I think that will probably carry the day at the federal level. What I actually wonder, though, Noah, is if Trump does pardon himself, I almost feel like at that point you almost have to prosecute him to try to prove that he couldn't pardon himself, because the self pardon is so outrageous as an idea, and the consequence of it is that a president can literally be lawless because while he's president, we say he can't be federally prosecuted, and then after he's president he can pardon himself on the way out the door. He could do anything and pardon himself. He could deal the election, as Trump is trying to do, but perhaps he could succeed and then pardon himself. He could shoot his opponent and pardon himself as long as he didn't violate a state crime in the process. So you're actually saying something counterintuitive that I hadn't really thought of before. You're saying, if the president were to pardon himself, he actually increases the risks that he'll be prosecuted, because if he doesn't pardon himself, the Biden administration will probably, all things considered, say it's time to move on. But on the other end, if he pardons himself, it just looks so outrageous and it creates such a disastrous precedent that if they have something, they can go after him for that would actually give them a reason to go after him. I think that's a fascinating idea. I mean, I think that they may decide to pass on it just the same, but I think the temptation to respond, particularly if there's a big uproar about it, will be much larger, and it'll be a lot easier to say, wait a minute, that's beyond the pail, right, like we're willing to let this slide. Perhaps, but you can't just say I can do anything as president and no one can ever do anything about it. Afterwards, We'll be right back. You mentioned Gerald Ford. He granted the most famous pardon in all of US history when he pardoned Richard Nixon. And the official optimistic version of that is that he wanted the country to move on. The more conspiracy theory view is that, look, Richard Nixon made Gerald Ford his vice president and then he resigned, and then Ford pardoned him. Surely, for someone like Richard Nixon, the fix was in in some way, either an explicit agreement with Ford or an implicit agreement with Ford to pardon him. In retrospect, how does that pardon look to you at a distance now, of you know, pushing fifty years. You know, was that a good thing for the country that we moved on or was it a preposterous thing that one of our most criminal presidents, at least until Donald Trump, just got away with everything. You know. One of the things I think that's very different between Nixon and Trump is that Nixon didn't really get away with everything right Nixon. Nixon had to resign, he lost the presidency and was publicly humiliated as a result. Trump goes out of office, he lost, but he goes out of office beloved by a shockingly high percent of the country, with a political party one hundred percent behind him. So far as we can tell, he hasn't been humiliated at all. He hasn't appeared to lose anything other than an election. But that happens to presidents, not because of this sort of thing. So I think the situation is a bit different, And the argument in favor of letting Nixon not get prosecuted may have been stronger than it is for Trump, because you didn't really think that Nixon got away with it right. He really didn't get way with it. He just didn't go to jail. So on that view, maybe we did it wrong. You know, maybe Nixon needed to go to prison so that future presidents wouldn't think, Okay, I'll be embarrassed, but you know, I won't have to actually pay the price. I basically agree with that, Noah, at least as it looks right now at this moment in history. In fact, I think one can make an argument for many of the pardons that have been used before that in retrospect, they all feel like a stepping stone to the point where we get to where a president thinks he can pardon himself. I think you could say something similar about Jimmy Carter's blanket pardon, or either Bushes or Clinton's pardon of sort of people involved in investigations of them, that it looks more and more deliberate now, and it's kind of become accepted because of those old pardons, Like it feels now like it was a slippery slope that had to end. Here. Seth, as we talk this through characteristically, you're raising issues that really make me think. And here are two thoughts. One is the pardon power isn't just symbolically dangerous. You know, president looks too much like a king. President can put himself above the law. It's very practically dangerous. If a president invited federal government employees to commit crimes on his behalf and publicly or privately promised them pardons, that really would allow a president to break the rule of law system in a pretty totalizing way. So that's scarier than I usually think about it as being. But that leads to a second thought, which is, why didn't Donald Trump really do that? I mean, he did say to the Ice agents, do what you need to do, but that wasn't for personal benefit. That was part of his outrageous antiimmigrant sentiment. He hinted clearly at various associates of his that they shouldn't testify and that he would reward them with pardons. But as far as we know, at least, he didn't directly say to anybody, just go ahead and break the law on my behalf and don't worry, I will pardon you. Why didn't Trump? This is speculative. Why didn't Trump abuse the pardon the system more during his four years in office than he actually did. It's always dangerous before a presidency has even ended to start discussing how historians will look back on it. So with that caveat, I'm going to go ahead and make that statement anyway. I think that when we look back on the presidency of Donald Trump, one thing that will be remembered is how Trump, deliberately or otherwise, was a genius at slowly raising the temperature of his outrageous behavior, and by raising the temperature slowly, he allowed the Republican Party to get used to a higher temperature of outrageousness. I think if on day one he had walked in and said I will pardon you, or you know, if he had fired Muller on day one, he might well have gotten impeached right then, and he might well have been convicted in that impeachment. But over time, as more and more Republicans came of the view that they would pretend not to hear and pretend not to see the stuff that was going on, the level of tolerance for things they were prepared to not hear and see went up. And I'm not sure that prior to the end of his presidency there was that tolerance for an outrageous use of the pardon power. But we've clearly reached the point where there might be. Now do you think we could ever get support for a constitutional amendment to take away or limit the president's pardon power. I mean, let's say Donald Trump pardons himself in ten or twenty years, you know, when Trump himself is no longer on the political scene, and assume, for the sake of argument, that later Republicans end up repudiating Trump, which I understand it seems like wishful thinking right now, but it might turn out to be the case historically. Do you think that would be the kind of act that could actually motivate Americans to vote for an amendment that says none of this anymore, it's not democratic. I think it's possible, but it's pretty hard to know right now. The thing that might make it happen is if a democratic president also use the pardon power in a way that Republicans found outrageous, and some the people could say, gee, you know, that's not so good. I mean, I do think it's going to be interesting to see how a bunch of political actors and judges who've been very deferential to presidential power when it was wielded by Donald Trump. I wonder how deferential they'll be when it's wielded by Joe Biden. And I think to a large extent, they won't be so deferential. So it's possible that when we get past this strange interregnum between presidents and we're fully into a Biden administration, that some of the support for the president can do anything because he's president will start fading from conservative circles. Just as you know, Obama was a tyrant in their view for executive orders that were nowhere near so weeping as Trump's executive orders, and yet when Trump issued them, they were his absolute right as president. You know, it'll be interesting to see how that plays out and whether we see over time a rethinking and maybe even a willingness to work together to reign in the power of the presidency so neither party has to deal with what they believe to be the dictator on the other side, What aspect of the pardon power have we not covered that you can think of? I think there's another what if we haven't covered? Which is one thing that's very unclear as I understand it in constitutional law, though I defer to you on this is how specific need to pardon be. So can you pardon someone for all crimes previously committed against the federal government without at all specifying what those crimes are? That's the so called blanket pardon, right, And I think that that's another thing that we might see tested now, because I'm fairly sure that if Trump decides to pardon people, he's not going to enumera what crimes they may have committed. This will certainly be true for himself or his children, and probably for Giuliani as well. Whether or not you can really say I pardon you for all crimes committed either in the last four years or any time in your life prior to this date, I don't know that courts are gonna like that idea. But isn't that effectively what gerald Ford's pardon of Richard Dixon was. I mean, it didn't detail all of the specific things that Nixon had done wrong. It just said he's off the hook. It absolutely was at least inform but I'm wondering if in practice it wasn't nevertheless, more clear what it was he was actually being pardoned for. If let's say, along the way, it had been discovered that Nixon had also shot the White House butler while he was in office, no one knew about it before, would people have thought that that pardon covered that too, because it was stated in such a general way. I'm not sure you're right. I'm just called up the text of that pardon. It does start by mentioning that there was a committee investigating Nixon for impeachment purposes, that there was a lot of coverage that as a result of acts or omissions as president, Nixon is potentially liable. And it also goes on to say that the trial you would take a long time, and we need to re establish tranquility. That's all the kind of like beginning stuff. But then the punchline, the legal part, says, I, Gerald Ford, do grant a full, free and absolute pardon unto Richard Nixon, I like the unto for all offenses against the United States which he has committed or may have committed or taken part in during the period from January twenty, nineteen sixty nine today he was inaugurated, through August nineteen seventy four. I don't think any lawyer could have read that pardon as excluding an unacknowledged act by Nixon like shooting the White House Butler. It seems about as clear as legal language can get. All. He's pardon for all offenses, right. I agree with you that that's the wording of it. I guess what I'm asking, Noah, maybe you're in a better position to answer this than me, is would the court be open to the view that the preamble in some way limits that and or that a pardon that broad just can't be valid because you can't just give absolution and say this person is permanently above the law for all crimes, whether I knew about them or not. Well, maybe you can. I mean, I guess my own view on the constitutional issue would be, though I would be very very unhappy about it. And although I would love to be able to say that the pardon power doesn't go that far. The origin of the pardon power as precisely a kind of monarchic or imperial get out of jail free card, allows the king, emperor, president to say, yes, you're forgiven for everything. Now. The one limitation that I think constitutional lawyers would accept is that you can't preemptively pardon someone for acts they haven't yet committed. You can't pardon someone or the future. And if you think about it, that's not completely obvious that that should be the case. I think the idea is implicit in the idea of a pardon that you're pardoned for past acts. You've done something wrong and now you're pardoned for it, not I advance pardon you for something that you're about to do in the future. You know, if you're committing new offense, you have to be pardoned for that again. But other than that, I think I'm pretty open to the idea that the grandeur of the pardon power, which I don't like, is nevertheless efficacious under the Constitution. And now, what do you think about the hypothetical wherein the president essentially promises I will pardon you after you commit the crime we're going to do together. That would be an impeachable act, that would be a high crime and misdemeanor. For the president to say that, it would not yet be the pardon. So if the president made that promise to pardon, that's not the same as the pardon. The pardon has to actually be issued, right, I agree that that's not the pardon. But the question is when the pardon comes around. Right, So, six weeks later they've committed the crime, right, is an illegitimate person? Is that pardon still legitimate given that it was agreed to in advance together as essentially a conspiracy to commit the crime? I mean as you said earlier when we were talking about whether an illegally obtained pardon would be valid, that is a really, really hard question, and the reason it's so hard is that it just seems preposterous on its face that something illegally, in this case, criminally obtained would nevertheless be valid. The counter argument, though, is that the whole point of the pardon power is that the president has the capacity to put certain things above the law, and so on that view, you could punish the president for it. He would be impeachable. He would be probably criminally prosecutable, certainly after his impeachment for that, if he were removed from office, or if he left office. But I have an instinct to say that it's possible that the actual issued pardon would still be valid because he was president when he did it, and that's a terrible conclusion. I don't want to reach that conclusion because I don't want the president to be able to effectively put himself outside the law, or to put his accomplices outside the law. But I guess I think probably that the pardon would be efficacious. The difference is that a pardon of himself wouldn't be efficacious, So he would himself still be criminally aliable. Seth. I began by asking you about how prosecutors feel about pardons. I want to conclude by asking you what it's like when you're on the other side of defense, when you're representing people who are charged with crimes, and sometimes even complete guilty to crimes. Does the possibility of pardon enter the minds of your clients? Does it enter your mind when you think, Gosh, that client probably shouldn't have pleaded guilty. Let's go try to get a pardon again. Pardons are fairly rare, so I can't say that it enters my mind as a strategy point, at least during the course of a normal case. In a normal criminal case with a defendant who's not connected to the president or governor, the typical way a pardon comes down is that the person first gets convicted, and then usually some significant time has gone by and the person has somehow proven themselves either to be innocent or reformed, and now you're making a pitch to the governor or the president that that person either should never have been convicted or somehow this needs to be wiped in light of their tremendous and unique service to the community that's happened since they were convicted, so it's typically long after the prosecution has already been concluded. Is it something that people think about? I think even most clients desperate for any port in a storm in the middle of a criminal case usually get that it's so unlikely and so far in the future that that's not the dream they're first thinking of. Do they think about it eventually? I think, particularly for well connected people, and I don't mean people connected directly to the governor or the president, but people who are the kinds of people who are my clients typically, which is to say, well connected, white collar, highly paid professionals. They've grown up their whole life with the understanding and the accuracy generally that if they keep working at something and keep pushing levers, they can make progress at whatever their goals might be. And I think those people also feel that way sometimes about pardons. After the fact, this is the most horrible thing they went through probably in their life. It's the thing that most besmirches their record, and they'd love to get it taken off. And I do think that some of those people do try to work the system, work their connections, work anything to get it removed from their record before they die, or even sometimes after they've died, their errors will try to do that, which is really a symbolic pardon entireleasins it matters no longer. But there are these posthumous pardons also. The answer is it doesn't come up that often, but it is something that people, particularly well connected people, do think about, and it is sometimes used even for the not well connected. For the safety valve reasons. We began the conversation with Seth. I just want to thank you, as always for stimulating my thinking so much, for teaching us so much, and for giving us the perspective from inside the criminal justice system on both sides of the fence. Thank you, Thank you. No as a pleasure speaking to Seth always gets my brain churning. In this conversation, I walked away with a sense that actually the part in power is potentially even worse than I've always thought it was, and that is really saying something. In the past, I've always focused on the undemocratic nature of the idea that the president is like a king or an emperor or a pope and can effectively step outside of the law to pardon people. The counterargument, of course, is that it's good for there to be mercy somewhere in the system. But talking to Seth really made me realize that a president who was clever about it and thought he could get away with it, could use the pardon power much more aggressively even than Donald Trump has done, and could use it to facilitate all kinds of criminal activity, either on his own behalf or on behalf of the policies that he wants by immunizing people against potential criminal prosecution through guarantees to them that he would pardon them. At the same time, Donald Trump hasn't gone quite that far, and even some of the pardons that he's talking about potentially issuing now have some precedent in the last days of Bill Clinson's administration. For the next six weeks, we're all going to be watching closely to see whom Trump pardons. It may come down to his last day in office. Here at Deep Background will keep a careful eye on it and will come back to talk about it more if there are major surprises. Until the next time I speak to you, be careful, be safe, and be well. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Gencott, our engineer is Martin Gonzalez, and our showrunner is Sophie Crane mckibbon. Theme music by Luis Guerra at Pushkin. Thanks to Mia Lobell, Julia Barton, Heather Faine, Carlie mcgliori, Mackie Taylor, Eric Sandler, and Jacob Weisberg. You can find me on Twitter and Noah Rfeld. I also write a column for Bloomberg Opinion, which you can find at Bloomberg dot com slashfeld. To discover Bloomberg's original slate of podcasts, go to Bloomberg dot com slash podcasts, and if you liked what you heard today, please write a review or tell a friend. This is deep background