The Current - Can Trump pardon himself?

Episode Date: November 6, 2024

Political scientist Robert Spitzer talks us through the ongoing criminal cases facing Trump, and whether he will use his presidential powers to go after his “enemies.”

In 2017, it felt like drugs were everywhere in the news, so I started a podcast called On Drugs. We covered a lot of ground over two seasons, but there are still so many more stories to tell. I'm Jeff Turner, and I'm back with Season 3 of On Drugs. And this time, it's going to get personal. I don't know who Sober Jeff is. I don't even know if I like that guy.

On Drugs is available now wherever you get your podcasts. This is a CBC Podcast. Hello, I'm Matt Galloway and this is The Current Podcast. Robert Spitzer is Distinguished Service Professor in the Political Science Department at State University of New York. He is the author of 16 books, including The Presidency and The Constitution. Robert, good morning to you. Good morning to you as well. Your first, I mean, I'm sure you've thought about it because you've been up for a while,

but your first blush reaction to the news that Donald Trump will be the next president of the United States. That this is a breakthrough victory for Donald Trump, that Kamala Harris didn't so much lose the race as Trump won it. He gained in about 90% of the counties in the country over his vote totals from earlier. The gender gap didn't play the key role that people thought it would. And Latinos significantly increased their support for Trump. And that tells us some very important things about Donald Trump, about his appeal to the country, and about his messaging, which certainly included and emphasized anger and fear, which

is not a typical campaign strategy. This is an important victory for him for a number of reasons. One is because he becomes the president of the United States again. Another is because of his legal troubles that have followed him through the campaign and the days before the campaign. What happens to his criminal and civil cases now that he is the president-elect of the United States? Several things. To begin with, the most high-profile investigation has been that conducted by Special Prosecutor Jack Smith,

who was appointed to investigate the effort to overturn the 2020 election results and the riot of January 6, 2021. That investigation will not conclude. I mean, Prosecutor Smith has several months between now and when Donald Trump will be inaugurated on January 20th of next year. But it's clear that it simply isn't far enough along that Trump is the president or will be the president-elect. And Trump has made abundantly clear, and nobody would be surprised, that he is going to make sure that Jack Smith is gone when Trump takes office. So that effectively comes to an end. There are state and have been state trials, most notably in New York State Court, and Trump was found guilty of over 30 felonies. There's nothing Trump can do about that. The sentencing for that trial is scheduled for late November, and the judge could do any number of things.

It certainly seems highly unlikely that the judge will order President Trump to jail or order him to engage in some kind of activity like community service. Just to be clear, though, could he be ordered to jail? Could he be sent to jail? Well, theoretically, yes, because it's under New York state law and federal power does not reach to state law enforcement unless it implicates a federal right or federal issues. Maybe there would be some grounds for trying to bring it to federal court. But the likelihood that the judge would order that, I think, is now basically zero. Can Donald Trump pardon himself? himself? I have written on that question, and when you examine the historical and legal issues,

my conclusion and that of most people who study these things is that the president does not have the power to pardon himself. However, it is not a definitively settled legal issue, and there's no question in my mind that he would attempt to do it should the need arise from his point of view. that presidents have presumptive immunity in office, it's not a stretch to believe that this Supreme Court might even uphold the power of a president to pardon himself. He also has the possibility and the potential to strengthen the Supreme Court in his favor, right? I mean, there are a couple of justices who are nearing retirement. Well, if you look at the nine members of the court,

three of them are liberals or appointed by Democrats, the other six appointed by conservatives. The oldest members are among the conservative category. Justice Clarence Thomas, I believe, is the oldest. It may well be that in the coming four years, there are no changes in the personnel of the court. But the conservatives have a pretty clear six member majority or maybe five member. And on most issues, they have, whether these might be people in the Department of Justice or beyond that. How could he do that? What does that mean that he would be able to go after his enemies? That's an extremely important question, because the whole point of the Justice Department is that it not be politicized and that it not be used as a political club against the president's political enemies. But he's been very plain in saying just what you have said, that he wants to use the Justice Department to politicize it, to make sure it implements his political, as distinct from legal point of view, but putting the shroud of legality around it.

Now, some of that may have been bombast. There may be cooler heads that may prevail. Richard Nixon back in the late 1960s and 70s, where Nixon's attorney general, a man named John Mitchell, certainly used the Justice Department to go after some of Nixon's enemies. And John Mitchell wound up eventually doing a year in jail for his activities in connection with that. with that. But this is, I think, the idea that the president would marshal the legal resources of the federal government, the Justice Department, to go after people that he simply doesn't like or that politically disagree with him is profoundly troubling. And one would hope that in legal challenges, of course, there will be legal challenges that judges and cooler heads may prevail. You take him at his word, though, when he says that judges and cooler heads may prevail. You take him at his word, though, when he says that he's going to do this. One of the things we've heard from some supporters is some of this is political rhetoric and people say things,

but it doesn't mean that they're actually going to do the things that they say. With Trump, I think it's clear that he wants to do these things. I take him at his word. And even if it is bombasting rhetoric, it raises the question of why you would vote for somebody who says in all seriousness that they the effort to do that will be countered by judges who say this is not allowed, allowed by the force of public opinion, by public discourse, and by pushback on using the Justice Department and perhaps other entities of the federal government, like the FBI, for example, against enemies. And that is something that's utterly incompatible with how we define America. We just have under a minute left.

Let me just ask you about the ability and the constituency that he has to do that. He said to his supporters last night that America had given him an unprecedented and powerful mandate. Does he have the mandate to do what we've been talking about, do you think? He has a mandate, but presidents, and we know from studying past presidential administrations, that that mandate can slip away. It can slip away slowly or rapidly. And if he squanders the mandate, if he does things that turn elements of the public against him or that, you know, run flat up against America's laws and legal traditions, that mandate can ebb away. Although the other point about Trump and his supporters is that

they are firmly behind him as a person, as a leader. It's a very, if you will, cult of personality kind of following. And I'm not sure to what extent they might be moved by things that he would like to do or attempts to do that contradict American law and American values. Robert, as people try to make sense of what happened last night and understand what may come in the days ahead, it's good to have you here. Thank you very much. You're most welcome.

Good to speak with you. Robert Spitzer is Distinguished Service Professor in the Political Science Department at State University of New York and the author of some 16 books, including The Presidency and The Constitution. For more CBC podcasts, go to cbc.ca slash podcasts.