Can President Trump Pardon Himself? Foundations of Freedom Thursday: Its Foundations of Freedom Thursday, a special day of the week where we get to answer questions from you, the listeners! Always answering your questions from constitutional principles! Tune in today as we answer your questions such as can President Trump pardon Himself? Can the governor of Arizona call for John McCain’s resignation? Was DACA an executive order? And so much more, right here on WallBuilders Live!
Air Date:Â 08/09/2018
On-air Personalities: David Barton, Rick Green, and Tim Barton
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Faith And The Culture
President Thomas Jefferson said, “I know no safe depository of the ultimate powers of the society, but the people themselves. And if we think them not enlightened enough to exercise their control with a wholesome discretion the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”
You”ve found your way to the intersection of faith and the culture. This is WallBuilders Live! Where we talk about today”s hottest topics on policy, faith, and the culture. Always from a biblical, historical, and constitutional perspective. It’s Thursday, so around here we call it Foundations of Freedom Thursday and it’s your chance to drive the conversation. Send your questions in to [email protected], [email protected]. Could be a question about the founding fathers, about the founding documents. Or about how to apply that biblical, constitutional, historical, perspective to some issue of the day. Whatever it might be, send that question in. And we’d love to get to it. We’ve got a ton we’re going to try to get to today.
We’re here with David Barton. He’s America’s premier historian and the founder of WallBuilders. Tim Barton”s with us, national speaker and pastor, and president of WallBuilders. My name is Rick Green, I’m a former Texas legislator.
Check us out at WallBuildersLive.com. That’s where you can get a list of our stations across the country. You can also archives from the last few months if you want to listen to more of these foundational programs. And then go to WallBuilders.com for all kinds of great tools for you and your family to get equipped, inspired, and educated, on how to restore America’s Constitution.
But today we’re going to dive into questions. We’ve got a ton of them. David, Tim, you all ready to get as many as we can in the day?
David and Tim:
Can President Trump Pardon Himself?
Alright, first one’s from a guy named T.J. and his question is can Trump pardon himself? He said, “President Trump recently declared on Twitter that he has “an absolute right to pardon himself of anything for any reason.” I was wondering if David might be able to address this claim and shed some light on what those who wrote the Constitution might have thought about that. Thanks T.J..” Alright, TJ, great question. And obviously, guys, president does have the power to pardon. We see that all the time. Can that apply to themselves.?
Interesting question. And first thing is why would the president have to pardon himself? And it would be because Robert Moeller will come up with something that will to convict him. Before we even get there I’ve got to have a little political commentary here. I want to know anybody in the United States who can go through a year or two, a year and a half, an investigation by several dozen federal investigators, and not have some something brought up against you where you violated some law.
We’ve talked before that right now the book is out there, it’s a great book, called Three Felonies a Day and it’s based on the premise that there are so many federal laws and regulations that every single one of us actually end up committing on average three felonies a day without being aware of it.
So, if you’re going to turn unlimited resources, unlimited time, dozens of investigators, if you do not come up with something on President Trump after that period of time I’m going to tell you that’s pretty squeaky clean to just say it. But aside from that the assumption is, okay, let’s say that Mueller comes up with something–
And, David, if I could jump in on you for a second here- there is no question that what you’re saying is true and we see this kind of prosecutorial abuse often and they use these technicalities. They use these statues that people don’t even know exist that tells you you”ve got to cross this T, and dot this I, and you don’t realize it.
So, what you’re saying is definitely true. Because some people might hear that and say, “You guys are just defending Trump. You”re just looking for–“ Look, I’ve been on the receiving end of abusive prosecutors where they try to create things out of thin air. And even if they can’t find something they just can can make your life incredibly difficult. That is the world of politics. It happens all the time, it is wrong, it is certainly happening to Trump right now.
Yeah. It’s what’s called over prosecution. I’m part of a national group called Right on Crime which is trying to do some major criminal justice reforms in areas like this where we lock up folks and throw away the key for what kind of ends up being often paperwork violations. Not substantive stuff like where you’ve gone out murdered someone, or committed some felonious crime in the sense of a crime against a person. We”re talking about a crime against a paper, or a crime against an ink pin, or something. It’s crazy. It’s technicality crimes.
So, this is not just out defending Trump. This is out saying the system the way it”s set up right now, if you want to go after someone you can create a witch hunt that will produce some kind of results, that will produce some type of a prosecution. Now, I think it’s amazing they’ve been this long in investigating Trump and haven’t come out with anything yet. And who knows, maybe they’re going to come out with a whole list of things, but apparently, from what we’re hearing, they’re not finding anything at this point. So, that’s amazing.
But let’s go to the premise of the question. Let’s say that they come out with something against Trump and that they accuse him of something and it goes to a court, and a trial, and prosecutorial process, and he is found guilty of whatever that crime may be. Can he pardon himself? And the answer is in Article 2, Section 2, Paragraph 1, of the
The Only Thing He Cannot Pardon
Constitution which says, “The president shall have the power of pardons except in case of impeachment.” That’s the only thing he cannot pardon. So, if for some reason, if say that the Democrats got control of the House and the Senate said, “Okay, the Democrats have impeached the president and we in the Senate, two thirds of the Senate, all the Democrats and a few other Republicans, we”re going to say the president guilty of this.” If he’s impeached he cannot pardon himself. But if it’s anything else he can pardon himself.
Now, I will go to some of the early commentaries on this going back to the date of the Constitutional Convention etc.. Even the Federalist Papers talked about what can be done on this. And it was all based on the premise of separation of powers. It’s all based on the thought that no one branch is infallible.
So, let”s take the Judicial Branch and let’s say that there’s a trial that goes there and they come up with some verdict. You don’t just assume that they are infallible and never get anything wrong. So, the power to pardon allows the president to say, “You know what, they had a witch hunt going over in that thing against some guy in Montana, or this guy in Florida, or whatever.” Because the president grants pardons on a semi regular basis.
And it really deals with the fact that you felt like that the courts went way too far in doing something or they ignored some key evidence. A guy was prosecuted and DNA evidence now comes out and says he didn’t do it. So, you can issue a pardon for that.
So, the concept of issuing a pardon is an acknowledgment of the fact that no branch is infallible, nobody gets it right all the time. And this is one of the checks and balances they put in there to help you secure justice. So, you look at like Federalist 74, it talks about that. You go into other famous commentaries of the day and you can go to Story”s commentaries, or you can go to the commentaries by Raul. These are all commentaries out of the 1820s, 1830s and it just deals with the fact that we want to get it right.
We Want Justice to be Done
We want justice to be done. So, that’s how a pardon is to be used. And, yes, Trump can pardon himself as long as he is not impeached. And it’s because we want justice, we want the right verdict, we want what’s just and fair – not necessarily what’s legal in the sense of legal technicalities. We want the right overall verdict.
And you said as long as it’s not impeachment, that”d be the exception.
Impeachment. And by the way, the other thing that most of the commentaries said, and they go back to discussions at the at the ratification conventions, was, “Well, he probably shouldn’t do it if it’s a case of treason. If someone is convicted of treason he shouldn’t do it then.” But the Constitution doesn’t say that he can’t. But everybody kind of agreed that if you’ve helped the enemy of the United States, if you”ve committed treason and been convicted of it, you probably shouldn’t do the pardon.
Well, it”s also the idea that if an impeachment takes place it’s because there was enough evidence there. Generally, if people look at it and go, “Yeah, this is the major problem.” If George Washington murders Martha Washington he’s probably going to get impeached. Right. And he probably can’t pardon himself for that offense because it violates the standard of clearly established law. And Lady Justice, Lady Law, she’s blind, she doesn’t play favorites, she can’t say, “Wait a second, I’m going to penalize you for this, but Hillary Clinton and her e-mails – totally fine.” And I say that just because Hillary kind of got away with it because of her name and then that’s a side note.
But for the president, this was the idea is that you cannot– being president does not give you the authorization to do things that are illegal and unconstitutional and then just pardoning yourself for it. And, dad, that”s where you”re mentioning kind of the spirit of the law as opposed to maybe specific details, the letter of the law, and understanding where a president can pardon himself of certain offenses, but not every offense.
Calling For John McCain”s Resignation
Alright, well next question comes from * and the question is about John McCain. It says, “Can the governor of Arizona call for John McCain’s resignation? We’re on the verge of pulling the Supreme Court back from legislating from the bench and ruling by their feelings. To actually using the Constitution as their guide. And John McCain seems to be hanging on to his seat just so he can try and thwart the conservative progress that’s being made. Or is it totally up to John McCain alone how long he holds his Senate seat even though he is no longer physically able to do the job? I guess you can boil my question down to this – do states have a method to recall a rogue senator?
So, David, Tim, good question. I would add to that question, do states have anything they can do? And then, does the Congress itself, can the Senate, take any action on this? What can be done?
Rick, it’s a great question. And let me first address one of the implications of the question that John McCain is a staying there to just thwart some of the ideas of Trump. I don’t know that that is a correct assessment to begin with. Now, it’s totally different of do I think he should be removed from being senator and whether or not the state or his people have the legal ability, the authorization to do that. That’s a different question.
But the kind of the impugning of the motives– dad, we’ve heard actually a different narrative of maybe why he’s staying there and it’s not just to thwart Trump. Although, they’ve not always gotten along. They’ve definitely had some differences. But we’ve heard actually that there’s a different reason he might be staying there.
Yeah, we’ve been told by congressional members in Washington D.C. that much of why he is staying there is that he wants to be able to die in office so that he can have the benefits of a state funeral in D.C. at the Capitol.
And by the way, he is very sick. And actually, several times doctors have kind of given him the idea that you don’t have very long left to live. In fact, I think at this point he’s actually superseded some of the doctor’s expectations–
Yeah, that”s right.
–of how long he would live. But, yes, so the idea was if he stays in, a normal members of Congress, normal senators, when they die, they don’t get to lie in state because they were not in office when they died. But apparently, if you die while you are in office then you get the privilege of being able to lie in state. Which generally is reserved for presidents or some high level dignitary of some capacity. But generally Congressmen and Senators do not have that opportunity afforded them. And his family thought because of his great military service, because of what he’s done for the nation, that really they wanted him to have that honor.
Anyway, that’s a side note from the question. But just to kind of clarify the imputed motives against him. Although, certainly he doesn’t always agree with President Trump. I don’t think that’s the reason he’s remained is just to thwart what President Trump is trying to accomplish. I think there’s an underlying motive. Which I think actually is also a pretty poor motive.
Because at point it’s a very selfish motive of, “I’m only staying here because I want it to benefit me”. Or whatever the case is. So, not that he should not be honored – because he should. But that’s a terrible reason to stay in office when you’re missing so many votes because you’re sick, because you’re going through things. It is pretty selfish to say even though I’m not there to vote, to make a difference, to be a part of the committees, I’m still going to stay here so I can lie in state. So, whatever the motive is we can still acknowledge maybe shouldn’t be there.
The Main Question
So, the underlying question, or I guess the actual, the main question, that was asked is, – do the people of his state, does the state itself has the ability to pull him back? Do they have that constitutional authority? Is, I think, really the the question now to address.
Let me give an answer to that question in the way it was asked according to the wording and according to spirit. Because I know the spirit of what’s being asked, but let me go back to the first line of the question. First line of the questions said, “Can the governor of Arizona or the state legislature call for John McCain’s resignation.” The answer is yes. They can not only call for his resignation, they can also call for the sun to come up in the west and go down the east, they can call for twenty eight hours a day. The state legislatures can call for anything. So, that’s technically an answer, but that’s not the question that was being asked.
So, let me go to what’s being asked. But just understand that the state legislatures and the governor have an ability to call for anything, but that does not mean it can happen or will happen. When you look at how to remove a senator from office in their state, there’s a couple of ways of going at it. One goes back to the fact the Constitution says that, look, you’ve got to have federal senators here from your state. Now, the states can determine the time, and the method, and the place of how that happens.
So, a state used to say according to the Constitution that the state legislatures would choose our senators, well, we change that by amending the Constitution where we’re now having popular elections. But depending on the state constitution some say constitutions do allow for recall elections. Some state constitutions do allow for a petition process for recall. So, the answer is it could be and I don’t specifically know what Arizona’s provisions are. But in general, if a state in a state constitution, or state charter ,or other state laws, allows for a recall process then, yes, that’s something that could be done even though it is a federal senator.
The Bottom Line
Because again, the states, what they do– the bottom line is you have to send two U.S. senators to the federal Congress. You states get to decide how to do it except you can no longer do it by the state legislature choosing who the state’s U.S. senator will be. So, outside of that, the answer comes back to, yes, it can be done, but it’s going to vary from state to state. And that’s strictly on state charters. I know Texas does not have that recall provision in ours. We could call for it all day long, and the governor could try to embarrass the senator into resigning, and you could run ads and other things to make him do the right thing, you would hope. But some states just don’t have that recourse.
Alright, guys, quick break. We’ll be right back. Folks, you’re listening to Foundations of Freedom Thursday here on WallBuilders Live.
President Calvin Coolidge said, “The more I study the Constitution, the more I realize that no other document devised by the hand of man has brought so much progress and happiness to humanity. To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”
Hey, guys, this is Tim Barton with WallBuilders. I know you hear my dad and Rick talk a lot about our Founding Fathers about the original intent of our nation, a constitutional heritage that we have. And really we’ve seen how far we slipped away from that. And I know a lot of us as we hear my dad and Rick talk think, “I wish there was a place that I could go where I could see these documents and I could read and learn about the Founding Fathers firsthand. Â See the things they did.”
I want to give you some websites today that can help you accomplish that very thing. If you get online you can go to places like Library of Congress and you can look under their century of lawmaking or historical documents. You can go to the Avalon Project, to the Founders Constitution, Google Books, or even the internet archives. Â
Or you can just go to WallBuilders.com. We have a section for our WallBuilders Library. And under that section we have different subgroups for historical documents, historical writings, even a place where you can get helpful links to find out more information about other websites. Â Where you can do research for yourself and find the truth for yourself. Friends, this is the time that we need to know who we are and where we came from. WallBuilders.com is a great place to go.
Thomas Jefferson said, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
How it Works in Arizona
Welcome back. Thanks for staying with us here on WallBuilders Live Foundations of Freedom Thursday today. And our last question was about the John McCain situation and that seat. Not, well really, Arizona just not being represented in the Senate right now – especially with this huge vote on Kavanaugh. As we were going to break, David, you were looking up an answer to that question on whether or not they actually– you mentioned some states do have a recall process for a situation. So– all situations, but a recall of an elected official. What”d you find on Arizona?
Yeah, checked on Arizona. Article 8 of the Arizona Constitution governs that. And it does say, “Every public officer in the state of Arizona holding an elective office, either by election or appointment, can be recalled.” What they have to do is they have to wait till after the person has been in office for six months. So, that doesn’t apply to McCain – he’s been in a lot longer than six months. And then a recall petition is filed and for it to go forward once it’s approved, the wording is approved. Then you have to get 25 percent of the number of votes cast in the last election to be able to recall that person.
So, since McCain is a statewide elected official you go back and see how many votes he received in the last election. And if 25 percent of that number says “we want to recall him” then you have a recall election. That recall election is to say yes or no that we want him back home, or we want him to stay in D.C.. And then if he was removed by a recall then you would have to have another special election to fill that seat. The governor in the meantime would appoint someone on a short term basis and then you come back and have a recall election. So, it would be a long tedious process but it can be done in Arizona.
State Governments, Sanctuary Cities, DACA, and Executive Orders
Alright, well next question comes from Katherine. She’s got a state government question she said, “How is it that some of the state governments such as California and New York have been permitted to set up “Sanctuary Cities?” Was DACA an executive order? I thought Section 1, Article 8, of the Constitution gave immigration authority to Congress?”
So, can states essentially say, “We’re going to flout federal law, and just do our own thing, and have sanctuary cities, and not enforce laws on them.”
Yeah, the answer to those questions- let’s take DACA first. DACA was an executive order and it was an unconstitutional executive order. The Constitution does not give the president the right or the ability to set immigration policy, period. They can”t do it.
So, even President Obama acknowledged at the time that he didn’t have the authority. It’s been confirmed since then that he didn’t have the authority. But it was an executive order.
So, President Trump went in and repealed that executive order and said, “Hey, this has got to be done by Congress. Congress, you”ve got six months to decide whether you want to keep this law or not. But we’re going to go back to what the Constitution said.”
Now, the Constitution does not give immigration authority to Congress. It says that Congress can establish a uniform rule of naturalization. What Congress can do is set the basic parameters for naturalization, but it doesn’t control that policy until after the 1870″s.
Until the 1870″s, for 100 years after the Constitution, states were in charge of immigration. The federal government got to say, “Here’s the minimum standards” and the states controlled it. It was not until the 1890″s that the federal government got into controlling immigration. That was only because the Supreme Court said they could. Not because the Constitution said so.
So, Congress does have a limited role in immigration. The states were to have a larger role. They have nearly no role now. But DACA was an unconstitutional act by the president because the president does not have the right to create policy on anything that the Constitution addresses, unless Congress has already passed a law on that. And Congress had not passed a law dealing with DACA.
Alright, fellows, quick break. We’ll come back. We’ve got time for one more question today on this Foundations of Freedom Thursday. Stay with us, folks. You’re listening to WallBuilders Live.
Samuel Adams said, “The liberties of our Country and the freedom of our civil Constitution are worth defending against hazards. And it is our duty to defend them against all attacks.”
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Calvin Coolidge said, “The more I study the Constitution, the more I realize that no other document devised by the hand of man has brought so much progress and happiness to humanity. To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”
Welcome back. Thanks for staying with us here on WallBuilders Live on this Foundations of Freedom Thursday program. And also let me just thank you for your feedback. We get so many great e-mails and calls into the office about how much you love these Foundations of Freedom programs, and the Good News Friday programs, and just the education in general that we bring you through WallBuilders Live every day of the week.
In fact, I just want to share a couple of a couple of the e-mail comments that we’ve gotten. This one from John, he says, “Excellent program. I”m in education, third grade, trying to keep the biblical worldview foremost in their thinking. With your help I can keep it in my thinking as well. God bless you and your ministry.” Got another that one says, “Thank you for helping me understand the founders” intent more clearly.” This one says, “Almost everyday is a good program, but this was a particularly great program. It explained socialism and the socialist mindset in very plain understandable terms.
So, what was that about “almost every day’s a good program”, I shouldn”t have read that part. Everyday is a good program. Okay, some days are even better than others, but of course we love doing WallBuilders Live. We love bringing you this information, we love getting to bring you these special guests, certainly to bring the good news on Good News Fridays, and on Foundations of Freedom Thursday’s being able to answer your questions.
So, send those questions in, ask what you’re curious about, what the Founding Fathers, about how to apply this biblical, constitutional, historical, perspective to the issues of the day. All of that can be sent into [email protected].
Be Part of the Solution!
And then be part of the solution. A lot of people tell me, “I don’t know what to do, Rick. I know we have challenges, I want to do something, but I don’t know what to do.” Let me tell you something – one of the best things you can do is take the tools that we’ve put in your hands or made available to you to put in your hands and spread the word. Get the DVD sets that are available at WallBuilders.com – Foundations of Freedom, that television program available on DVD right now with all those great interviews with all those great guests where David takes you through those foundations of our nation’s freedom.
Get Constitution Alive and study the Constitution in your home. We bring you that program where we actually teach the Constitution at Independence Hall in the very room where the Constitution was framed. Get that and study it in your home, get it into the hands of people at your church, do a Sunday School class, you can get extra workbooks. All of those tools are available to you. There’s so many different books, and DVDs, and available programs right there at WallBuilders.com.
And then one of the easiest things you can do is make a contribution to WallBuilders. Just simply go to WallBuilders.com. You can make a one time contribution. For some people 5 or 10 bucks is the most you can give. But that helps us to spread the news. For some of you can give more than that. You can give on a monthly basis and become one of our major donors. That allows us to add stations to WallBuilders Live. Where we’re actually getting the news to an entirely new community that hasn’t been able to get WallBuilders Live yet.
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Can President Trump Pardon Himself? Foundations of Freedom Thursday
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Thomas Jefferson said, “The constitutions of most of our states, and of the United States, assert that all power is inherent in the people that they may exercise it by themselves that it is their right and duty to be at all times armed. That they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press.”