Hello, listeners. Allison here. Can He Do That is still on holiday break this week. But we went through our four-year-long catalog to bring back an episode with themes that we really think resonate with the state of the country's politics today. We originally published this episode in February of 2020, a week when President Trump pardoned or commuted the sentences of several convicted white-collar criminals at the center of federal anti-corruption and tax fraud cases. At the time, he commuted the sentence of his longtime advisor and friend, Roger Stone. Well, last week, Trump again made some controversial moves related to pardons, including a full pardon this time for Stone, and also for Paul Manafort, for his son-in-law's father, Charles Kushner.
and for more than 20 others. This archival episode from Can He Do That covers the ins and outs of presidential pardon power and sheds some light on what's happening at the White House as Trump's term ends. Here's the episode from February of 2020. Only a few presidential powers are very clearly outlined in the U.S. Constitution. One of those is the president's power to pardon.
We've seen President Trump exercise his pardon power at several moments during his time in office, sometimes too much controversy. President Trump has pardoned Joe Arpaio, the former sheriff of Maricopa County, Arizona, was convicted of criminal contempt for what was described as racial profiling. Tuesday, the president continued this trend. We have commuted the sentence of Rod Blagojevic. He served eight years in jail. I just pardoned Bernie Carrick, a man who had many recommendations from a lot of good people. Mike Milken, who's gone around and done an incredible job for the world.
He pardoned or commuted the sentences of several convicted white collar criminals at the Center of Federal Anti-Corruption and Tax Fraud Cases. The list included names like convicted junk bond king Michael Milken, former New York police commissioner Bernard Carrick, and disgraced politician Rod Blagojevich, who was convicted of corruption in 2011 for trying to sell President-elect Barack Obama's vacated Senate seat. Four women with lower profile cases were also granted clemency on Tuesday. The White House says all 11 actions help people who were treated unfairly or had repaid society. Most are white men with connections to power and in some cases to Trump himself. And notably, many of the people in this group were convicted on the same types of corruption and lying charges that many of Trump's own associates were convicted of during the Russia investigation.
Trump's choice to grant clemency to this group, combined with a reported desire from the administration to issue more pardons in the coming months, raises questions about who else Trump might pardon. Among them, his longtime advisor and friend, Roger Stone. Stone was sentenced Thursday to serve three years, four months, for impeding a congressional investigation of 2016 Russian election interference. Now, Trump hasn't pardoned Stone, but he left the store open when he said in an event in Las Vegas Thursday that, while he wasn't going to grant clemency to Stone right now, Stone, quote, has a very good chance of exoneration. So what do a president's decisions about who to pardon say about his agenda? How unusual is it really for a president to pardon those close to him? And how much power does the Justice Department have to push back on a president who seeks to pardon for political gain? This is Can He Do That, a podcast that explores the powers and limitations of the American presidency and what happens when branches of government collide. I'm Alison Michaels. Today's episode boils down to this. If a president has sweeping pardon powers, are there really consequences to using them? And should there be? I turned to The Post's White House reporter Tolu Olorunipa to find out.
Before we get into the details of Trump's most recent actions around pardons, I want a refresher on how presidential pardons work. What does it mean for a president to pardon someone? Under the Constitution, the president has almost unlimited power to pardon anyone convicted of a federal crime. It basically means that the president can make it as though that person was never convicted. It's one of the most absolute and pure powers that the president has given under the Constitution and allows presidents to, in their view, write wrongs of the justice system.
Obviously, presidents have used it for political reasons as well, but that was the intent of the founders, the president being the chief law enforcement officer of the country. He has the power to overrule judges or juries who have convicted people on federal charges. So a person is relieved of their legal repercussions from their conviction. Are there anything the pardon can't undo? Are there any legal consequences that remain for the person who's been pardoned?
For example, if someone is convicted on a state charge or convicted on both federal and state charges, if a president pardons someone, they may have those federal charges expunged, but the state charges would remain because the president doesn't have control over the state's criminal justice systems. There's also public and political backlash that people get from being criminals and convicted felons. That can't really be erased by a pardon. People still know that this person was convicted of a crime, even if their record gets expunged, especially if it's a high-profile or public individual. And sometimes pardons actually bring more attention to people for the crimes that they are pardoned for. For the most part, the pardon power is.
pretty absolute and pretty pure in that a president pardoning someone makes it almost as if that person was never convicted. And perhaps we should have started here, but who can be pardoned? Are there certain criteria that a convicted person must meet in order to be pardoned? Under the Constitution, The only criteria is to have the president's support for their pardon. Now, there have been systems that have been set up over the past several decades in which these pardons have gone through, you know, the judicial system, the Justice Department, the Office of the Pardon Attorney. There's all this bureaucracy that people apply for a pardon or apply for a commutation. And it goes through the process with a lot of paperwork and eventually gets to the president's desk. But all of that is just sort of a system that's been set up to make it more simple for the president to figure out who to pardon and who not to pardon. But we've seen President Trump sort of blow up that process and just decide who to pardon based on his own prerogatives. So under the Constitution, if you've committed a federal crime, you can be pardoned by the president.
It's that simple. Yes. Okay. So is there any difference here between pardoning someone and commuting their sentence or offering a commutation? Yes. A commutation usually goes to someone who's actually still in prison, who's still serving their sentence. So if someone's serving a 20-year sentence and they're in year 10 of that sentence, the president can commute that sentence and say that after 10 years you get out, the president can commute that sentence and say, we only want you to serve five more years, so we'll commute your sentence to 15 years. And it could shorten the overall sentence. A pardon is separate in that it usually is more absolute.
Someone who's pardoned, it's almost as if they were never convicted in the first place. So if they're in jail, they're immediately allowed out of jail. While a commutation still leaves that thing on your record, pardon does not leave a conviction on your record. And pardons can also go to people who have already served their sentence or people who were not even sentenced to any time in jail, but who have a conviction on their record. And you touched on this, but why does the president have pardon power to begin with? What's the reason a president can absolve certain people of crimes? Well, the founders put it in the Constitution. There are a number of different reasons they put it in there. But the president is someone who was elected by popular opinion.
given those very high powers to operate as the chief law enforcement officer of the country. He's someone who's accountable to the people, and the founders believe that if he abused his pardon power, that he could be removed from office by the voters or impeached by the Congress. So there are some checks on the abuse of the pardon power, but the founders wanted the president to have the final say over people who may have been caught up in the criminal justice system, rightly or wrongly. And by giving that power to the presidency, it forms a form of a check on the judicial branch and on anyone who may have gotten the wrong end of our justice system. So just as impeachment and the voters can displace a president, the president can make sure that the Justice Department's convictions feel...
appropriate. Right. That was the original intent. And it's part of the reason that presidents have very rarely used the pardon power, in part because it is sort of an absolute remedy to the justice system. And it leads to a situation where presidents can seem as if they are interfering with the wheels of justice by interjecting their own opinion and pardoning people who have gone through and had their legal rights within the confines of the system. If the president decides to go outside of that system and pardon someone, a lot of times that is viewed as a president taking matters into his own hands. Yeah. Let's talk more about that. What do presidents typically try to use pardons for?
It has ranged, but in general, presidents have sought to, in their view, write wrongs within the criminal justice system. So if people were convicted for something that the president felt was an unjust conviction, or if they were given a sentence that the president felt was too harsh, a lot of times that has led to a pardon. Very many presidents in recent history have used pardons for political reasons to benefit political allies, people who they know personally, in some cases even family members, in part saying that they know. maybe what's in that person's heart or they know that the person was not guilty in the way that the justice system found them to be guilty and for whatever reason that the pardon recipient was worthy of a second chance or was worthy of some sort of clemency. So that's how we've seen the pardon process used in the past. We've also seen some presidents try to make a broader statement about the criminal justice system. President Obama used pardons and commutations to send a message about the criminal justice efforts that took place in the 80s and 90s with the war on drugs in which several thousands of people were actually locked up for nonviolent drug offenses and President Obama thought that
those people should get a second chance after spending 10 or 20 years in jail, that in part because the laws had changed since the 80s and 90s, that the people who are still suffering and serving time under those previous laws should get a second chance. But more often, we've seen it used either in political ways or to benefit people who are close to the president in one way or the other. Did you know you can play the Washington Post's games for free? Find the crossword, keyword, ridges, and on the record in the Washington Post app or at WashingtonPost.com slash games. No subscription required.
We've seen that before in history. Can you give an example? So, yes, we have seen that before in which presidents have pardoned people who are close to them. We've seen President Bill Clinton use the pardon power to pardon his brother, who I believe was convicted on some drug-related offenses. Other presidents have used the pardon power, you know, right, as they're about to leave office on the last day of office, including Bill Clinton, who did so. President Nixon was essentially given a pardon after he left office, basically given the free pass and that he would not be convicted. So presidents have used pardons, and it's generally pretty controversial when it happens, but it has happened with some regularity.
Okay, well, let's talk about the most recent incident of a president using pardon power, perhaps for political gain. Pardons are not new for this president. He issued quite a few in his presidency, Senator Libby, Sheriff Joe Arpaio, Alice Johnson, several people. But what has Trump done this week? This week, he gave clemency to 11 different people. Some of them were pardon, some of them were commutations. And that group included several people who are close to the president or whose case was aired on Fox News. This was a system put in place by the president that...
It's very much separate from the traditional Justice Department system for deciding who gets clemency and who gets pardons. These were people including the former governor of Illinois, Rod Blagojevich, Michael Milken, who was convicted of Wall Street offenses about 20 years ago. Several other people who were close to the president or who had their cases aired on Fox News. The president delivered pardons or commutations for them. So can you just say again what these 11 people sort of had in common in terms of the crimes they committed or their relationship to the president? Yeah, a lot of these people were convicted of crimes like corruption, lying to Congress or lying to investigators or tax offenses. Not violent offenders, but a lot of...
offenses that are frowned upon for, you know, the idea that they were corrupt. These are mostly high-powered, high-profile individuals, white-collar criminals. And the president had some nexus to a lot of these people, whether through having ties to the president's supporters and donors, several people who were close to the president in some way, and for one reason or the other, were able to get their case before the president through his allies and through his supporters. And the president, in his largest set of pardons and commutations since he took office, gave reprieve to all of these people on the same day. So it's his largest set of commutations and pardons.
But he seems to like the pardon process, and I think he's made that very clear based on some of his actions and some of the things that he's said this week. So my question is really why? Why has he made this a part of his governing approach? What is it about pardoning people that appeals to Trump? Yeah, Trump came into office without having any political experience, not having been in Congress. And I think when he first got into the presidency, he thought he would be able to do a lot of things without having to go through Congress or just with his executive authority. And he quickly found out that Congress and other regulations stopped him from doing some of the things he wanted to do. But with a pardon power, he has the absolute power to change people's lives just with a stroke of a pen. He doesn't have to consult with Congress. He doesn't have to have anyone overseeing what he does. There's no oversight.
capability really for Congress in this effort. So that's part of the reason he likes it. He feels that he can make a difference in people's lives just by signing a pardon document. He can help his friends and allies. He can really make a difference just by deciding whether or not he wants to issue these pardons. And the absolute power that he has in this process to say someone can get out of jail is...
a power that he relishes and something that he's been using with increasing frequency, especially for his friends and allies. There's been a whole sort of task force created at the White House to figure out a new part in process, to bring that process closer to the White House. What is that group trying to accomplish? What are they tasked with doing? Well, they want to take the process away from the Justice Department. There's been a lot of complaint about the Justice Department being too slow or being too bureaucratic, and they want...
the process to be closer to the president. As we said, this is an absolute power that the president has. The president is not required to go through the Justice Department to decide who should get a pardon and who shouldn't, which would mean that people within the president's orbit or people who have the president's ear in some way are able to get their cases before the president, while other people may not be able to have that opportunity. So the White House is now putting together a sort of informal group of advisors, friends of the president, conservative allies, criminal justice advocates to help. streamline the process and bring more recommendations for the president. There's a sense from what we've heard from talking to people close to the president that he wants to do more pardons. He doesn't want it just to be people who are friends and allies of the president, but people who are sort of serving long sentences for nonviolent drug offenses, people who maybe don't have a direct nexus to the president. The president is trying to put together this group that would help.
bring him names that would vet some of these applications and allow him to increase the number of pardons that he's given out, the number of commutations that he's giving out, while not necessarily having the Justice Department weigh in. Because there's some concern that the Justice Department is responsible for locking up a lot of these people and prosecuting a lot of these people, that maybe they would be a little reluctant to recommend that these people get out of jail or get out of prison early. with a shorter sentence than what they were given under the Justice Department prosecutions. So the new task force would remove some of the process from the Justice Department, put it in the White House, and in the words of some of the president's advisors, give the president the opportunity to sign more pardons and commutations before his election in November. So who's in charge of all this? Who's leading that task force? So the president's son-in-law, Jared Kushner, has taken the reins of this new pardon.
This is the president's son-in-law, senior advisor at the White House. He is very much on board with the idea of removing the power of the pardon process from the Justice Department, bringing it into the White House. And he's actually going to be reviewing cases individually before they get to Trump. So this is someone who is a presidential ally, someone whose father actually spent some time in prison, and who's taken a lot of interest in the idea of criminal justice reform. And when it comes to pardons, he's going to be the last line of defense in deciding whether or not someone can get their case before the president. This is something that's unprecedented. We've not had presidential children or family members have such a...
important role to play when it comes to deciding the fate of potentially hundreds or thousands of prisoners. But Jared Kushner is playing that role, and President Trump is investing that authority in him to decide whether or not someone should get a pardon or should not. Is this another example of Trump at odds with the Justice Department after weeks of a little bit of tumult in that area? Yes, this is another area where the president and the White House are not in line with the Justice Department. We saw much of that through the impeachment process, the president feeling that the prosecutors in the Justice Department have prosecuted his friends and allies and supporters and his former lawyer. And a lot of people within the president's orbit have gone down and have been prosecuted by the Justice Department. And the president is now really trying to take the reins and control some of the things that had been under the auspices of the Justice Department, in part because he feels that he can't trust some of the people within the Justice Department, some of the prosecutors who are to this day continuing to prosecute allies and friends of the president.
But on the other hand, it is worth pointing out that clemency reform has been a focus of many administrations, and even some of the proposals from the 2020 Democratic candidates suggest moving more of this pardon power to the president, to the White House. Yes, and there are sort of bipartisan calls for the Justice Department's role to be minimized within the pardon process, in part because criminal justice advocates, including Democrats and Republicans, have said that having the Justice Department plays such a significant role when Justice Department prosecutors generally try to get more time for offenders and not reverse themselves and call for commutations in less time. The broader idea is that... There are calls by some in the criminal justice community to remove the sort of piecemeal one-by-one process that pardons have been and have a more blanketed process where if someone was convicted on a nonviolent drug crime and got a very lengthy sentence, that many people who fall into that category and a lot of those laws have changed since then, but people who are still caught up in the previous laws in the previous tough-on-crime era, that those people would be able to get their commutation appeals heard en masse. And if a president or if a presidential candidate supported the idea of pushing forward with a broader take on commutations, then you could get...
some of those thousands of pending appeals through the process more quickly. All right. Right now, it's Thursday. One big potential pardon kind of hanging over the news cycle right now is the potential pardon of Roger Stone. He was sentenced to 40 months in prison for impeding a congressional investigation of Russian interference in the 2016 election. Now, early Thursday, Trump had retweeted this clip from Tucker Carlson implying that he might pardon Stone. And we've seen other signals coming out of the White House implying that he might, in fact, pardon Stone.
And to put this in some more context, Trump has seemingly already interfered in the Justice Department's sentencing recommendation for Stone, which raised a lot of questions about this relationship between the president and the Justice Department in this particular case. So what does the potential pardon of Stone mean for that Trump-DOJ relationship? Well, this is an ally of the president who was just convicted, not someone who served their time or served a lot of time in jail. There are already recommendations that people should not get pardons who have not served any portion of their time, especially right after they were convicted. If the president moves forward with a pardon for Stone, it would be a slap in the face to the prosecutors who prosecuted Stone for what they considered pretty significant crimes of lying to investigators, witness intimidation, and obstructing a congressional investigation. It would be a slap in the face of the judge who just...
decided to give Stone 40 months in prison in her terms. It was a very serious crime that he committed, and she felt that he had not shown the level of remorse or seriousness about the case that he should. And it would be a sign that the president feels unbound after his impeachment to really make his feelings known about whether or not his friend and ally should spend any time in jail. And Democrats would definitely be very concerned if the president were to move forward with a pardon of someone who not only had a... conviction for lying to Congress, but it's a conviction that is related to the president's own political standing. This is someone who lied to Congress about his involvement in the 2016 campaign, which President Trump was involved with directly. So this would be a pretty significant pardon, and it would lead to a lot of backlash. But the president, as you said, has been putting forward some signals that he may be ready to do this. Well, we've talked about the ways that it might be beneficial for a president to have more pardon power, but are there protections within the DOJ to prevent presidents from issuing pardons for a political game?
There are protections within the Justice Department because there is an office of the pardon attorney who is responsible for reviewing applications, really trying to take this out of the political process and have it be something run by career officials, run by bureaucrats, people who do not have a political agenda. But if the president decides to overrule the pardon attorney or to not even allow the pardon attorney to review various cases, that makes it much harder for the Justice Department processes and systems that are in place to remove this from a political process. To have a say, it makes it much easier for the president to just decide based on politics or based on his own feelings who to pardon and who to not give a pardon to. And that is one of the concerns that we've heard about this new system that the White House is setting up is that some of these guardrails that are in place within the Justice Department could be removed if the president decides that he does not want to.
cede any power to the Justice Department and wants to make his own decisions when it comes to pardons. And if the president decides to pardon Roger Stone, who just was recently convicted, then it would further sort of dismantle those guardrails that were currently in place. Are there risks in a president pardoning not only people who are perceived to be his friends, as we've talked about, but perhaps more importantly, people who are convicted of crimes related to his own campaign? There are definitely political risks. There's not so much of a legal risk at this point. The president has already been impeached. There's no sense that he would be impeached again, even if he uses his pardon power in ways that are seen as protecting himself politically. But there are political risks that...
President Trump campaigned on saying he was going to drain the swamp and remove a lot of the corruption from Washington, Democrats could very clearly make the case that by pardoning a friend in a case that's related to his own political and legal standing, the president is adding to the sense of corruption, adding to the sense that if you're a friend of the president, if you defend the president, if you protect him, even by lying to Congress or obstructing Congress or tampering with witnesses, that you can get a pardon and you can get support from the president. And it would give Democrats ammunition to say that President Trump feels that he's above the law. So that is the biggest risk that the president faces as he waits whether or not to pardon Roger Stone. But it's not clear yet that the president feels that that risk is one that's worth hitting.
I want to say this again just to be clear that the president has not said that he will, in fact, pardon Stone. But he's indicated that it's not off the table, which means it's not too far of a leap to consider whether perhaps pardoning Stone could set up an unspoken understanding for some Trump allies that if they act illegally to benefit Trump's campaign, the president will pardon away their crimes at the end of it all. Yeah. The idea of pardoning Roger Stone, even though he was only recently convicted, even though he was convicted of lying to Congress, witnessing intimidation, and... obstructing a congressional investigation that was at its heart looking at whether or not President Trump's campaign colluded with Russia in 2016, would send a message that people who continue to remain friends with the president, people who continue to protect the president, even to the point of committing a crime, do get the president's support and can get a get-out-of-jail-free card from the president. And one way to compare this is to look at the president's former lawyer, Michael Cohen, who is currently in prison, in part because he did not continue to stand up for the president. He decided to tell Congress his own story that did not line up with anything that would support the president.
first lied to Congress and then admitted that he had lied and said he was trying to defend the president. And when he finally told the truth, it was very unflattering to the president and it made the president look bad. And the president decided to attack Michael Cohen and he is no candidate for a pardon from the president. So there is a clear signal being sent that by sticking with the president, continuing to support him, even if it means lying to Congress, that you would line yourself up for a pardon from the highest office in the land. All right, Tolu, my last question for you. What do all of these efforts around pardoning say about the way Trump exerts his presidential power in office?
The president likes to have absolute power. When he has absolute power, when he can use executive authority, he uses it without much regard for norms or history or political consideration from people who say that you should not push. the envelope when it comes to presidential power. The president, especially in the wake of his impeachment, is pushing the limits of presidential power and wants to do that as much as possible. And he likes the fact that by using the pardon power, he is able to flex his presidential muscles without anyone being able to say you can't do this or Congress is going to stop you or there are regulations that say you can do X but you can't do Y. The president realizes that when it comes to pardons, when it comes to using his executive clemency authority, there are a few things that can be done to stop him. And that's part of the reason that he is moving this process closer to the White House where he could use it more regularly without any interference from the Justice Department. All right. Thank you so much for your time. Thank you.
This has been another episode of Can He Do That? As we head deeper into the 2020 election season, we want to hear from you, our listeners, about what pressing questions you have during this campaign cycle. What moments or actions feel like they're breaking precedent? How does this election season seem different from elections in the past? We're open to whatever you're wondering about, so don't hold back. Submit your questions at this link, wapo.st slash 2020 questions. That's wapo.st slash 2020 questions. Can He Do That? is a team effort here at The Post. It's produced by Carol Alderman and Ariel Plotnick, with design help from Kat Rudelbrooks, logo art from Loren Boglio, and theme music by Ted Muldoon.
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