Amicus With Dahlia Lithwick | "Trump’s Pardonpalooza"

Episode Date: December 5, 2020
Host: Dahlia Lithwick
Guest: Jack Goldsmith (Harvard Law School professor, former head of DOJ Office of Legal Counsel, co-author of After Trump: Reconstructing the Presidency)

Episode Overview

This episode explores the unprecedented wave of presidential pardons expected at the end of Donald Trump’s presidency, focusing on the scope, limits, and implications of the president’s pardon power. Dahlia Lithwick is joined by Jack Goldsmith, legal scholar and co-author of a book on post-Trump reforms, to examine potential self-pardons, “friends and family” pardons, the breakdown in pardon processes, the limits of the law, and the challenges of restoring Justice Department independence after four tumultuous years.

Key Discussion Points and Insights

The Broad — and Abusable — Scope of the Presidential Pardon Power

• The presidential pardon power, under Article II of the Constitution, is “very broadly conferred” and only restricted in two ways: applies only to federal crimes (not state) and cannot be used in impeachment cases (05:18).
• Historically, the power is “extraordinarily broad, unchecked, almost unqualified.” Past presidents have, at times, abused it, but the Trump administration represents an extreme in both its self-serving use and its overt circumvention of established processes (07:19).
  • “He’s not the first president to potentially pardon family and friends ... but [Trump] has been done so at a much higher rate, much more aggressively... used the pardon power thus far in self serving ways.” — Jack Goldsmith (05:56)
• Trump’s likely plan: to pardon himself, his family, close associates, and business entities for any crimes committed before or during his presidency (04:56, 07:19).

Processes and Precedents: What’s Different This Time?

• Trump issues pardons “in ways that are profoundly different from ... what you’re describing as healing purposes.” Normal DOJ review and the Office of the Pardon Attorney have been almost completely bypassed (09:48).
  • “He’s made the exceptional case the rule both on skirting the normal processes and on issuing self-serving pardons.” — Jack Goldsmith (09:48)

Notable Historical Precedents:

• Washington’s Whiskey Rebellion, Carter’s draft dodgers, Ford’s blanket pardon of Nixon: examples of broad or amnesty-style pardons used historically for “community healing.”
• Bill Clinton’s controversial end-of-term pardons (Mark Rich, Susan McDougal), which were investigated for bribery but set no real constraints (07:44).

Self-Pardons: Legal Unknowns

• The legitimacy of self-pardons is “an entirely novel, unaddressed question.” The DOJ’s only statement (from 1974) simply says: “because no man can be a judge in his own case, the President cannot self-pardon” — but lacks legal analysis or precedent (11:11).
  • “It’s never been tested in court ... The scholars have a mix of views, most ... think it’s not possible, but quite a few think it is.” — Jack Goldsmith (11:11)

Blanket and Preemptive Pardons

• There is precedent for blanket or preemptive pardons for uncharged or even uninvestigated crimes (e.g., Nixon, Carter’s draft dodgers, Bush’s Iran-Contra pardons), but a pardon cannot apply to future crimes not yet committed (15:09, 16:14).
• Courts generally defer to past presidential practices in deciding the scope of pardon power (16:41).

Legal Reform Proposals for the Pardon Power

• Goldsmith and co-author Bob Bauer propose two key reforms:
  1. Extending anti-bribery and obstruction statutes to explicitly cover pardons given in exchange for bribes or to obstruct justice.
  2. Statutory ban on self-pardons (while recognizing only courts can ultimately decide the constitutional question) (20:52).
  • “One extremely easy reform ... is just to extend the bribery prohibition and the obstruction of justice statute to the issuance of pardons.” — Jack Goldsmith (22:08)

On the Limits of What Law Can Do:

• Some abuses can be addressed by law (e.g., financial conflicts, pardon trades), but not the “nihilism and chaos” of a president determined to violate norms (24:02).
  • “If we were designing a constitution ... you would not allow self-pardons, you would prohibit them.” — Jack Goldsmith (24:36)

Pardons for Political Favor or Bribes: Ongoing Investigations

• The DOJ was investigating possible “bribe for pardon” schemes involving Trump associates. Goldsmith argues this exemplifies why clear anti-bribery laws are needed (25:59).

The Justice Department, Barr, and Post-Trump Independence

Barr’s Legacy and the “Diabolical” Durham Maneuver

• Bill Barr’s approach is shaped by a maximalist take on “unitary executive” power. Goldsmith offers a contrarian defense, arguing Barr’s actions stem largely from a specific constitutional worldview, not simple loyalty to Trump (29:18, 30:49).
  • “I don't think that Barr has been ‘in the can’ for Trump at all ... [it’s] entirely driven by his view of Article II.” — Jack Goldsmith (29:18)
• Barr’s “diabolically clever” move: while publicly stating DOJ found no widespread election fraud (repudiating Trump’s claims), he simultaneously appointed John Durham as special counsel to prolong investigation into the origins of the Russia probe — locking in a politically fraught investigation for Biden’s DOJ (34:14).

Implications for Biden’s Attorney General

• The next AG could end the Durham probe, but doing so would be politically explosive: “I have no doubt that if the next Attorney General wants to take the political heat ... he or she can stop the Durham investigation.” (38:35)
• The realignment of Justice Department independence is more about leadership behavior than statutes. “The most important thing is how the President of the United States behaves and how the Attorney General behaves.” — Jack Goldsmith (40:53)

Justice Department “Independence” and Its Limits

• Post-Watergate reforms tried to wall DOJ off from politics; Goldsmith says in a polarized era, true insulation is nearly impossible — especially with legal issues so intertwined with partisan divides (e.g., DACA, special counsel investigations) (40:53–43:35).
  • “The country is so deeply split on its interpretations of the meaning of Justice Department actions ... it’s very hard for it not to look political, even if it’s not acting that way.” — Jack Goldsmith (42:09)

The Dilemma of “Consequences” — To Prosecute or Not?

• Co-author Bob Bauer says there must be consequences for Trump’s abuses (“there have to be consequences, even if it means prosecuting the president”), while Goldsmith warns of the dangers of endlessly criminalizing political adversaries (“you can’t keep politicizing or criminalizing politics”) (43:35).
  • Goldsmith voices skepticism: “It’s not likely you’re going to have a prosecution; the costs are going to be enormous. ... I think it’s very hard ... I think it’s going to disappoint everyone because ... it will not buck up rule of law norms.” (48:15, 50:40)

Final Reflections: Did the Institutions Hold?

• Lithwick asks Goldsmith how worried he is, given Trump’s ongoing election denial and the broader effect on democratic legitimacy.
• Goldsmith remains cautiously optimistic:
  • “It is the worst thing of a very long list of terrible things. ... But you can also say ... the institutions, while they were damaged ... they kind of held up.” (52:41)
• “Your optimism infuriates me but also inspires me in equal measure.” — Dahlia Lithwick (54:21)

Notable Quotes & Timestamps

• “The problem ... is not primarily one of illegality. The problem is one of abuse.” — Jack Goldsmith (07:19)
• “He’s made the exceptional case the rule both on skirting the normal processes and on issuing self-serving pardons.” — Jack Goldsmith (09:48)
• “It’s never been tested in court ... The scholars have a mix of views, most ... think it’s not possible, but quite a few think it is.” — Jack Goldsmith (on self-pardon, 11:11)
• “You can just imagine that in the kind of moral world of Donald Trump ... that’s just the tip of the iceberg.” — Jack Goldsmith (on pardon abuses, 27:05)
• “The most important thing ... is how the President ... behaves and how the Attorney General behaves.” — Jack Goldsmith (40:53)
• “I think it’s going to be much worse for the rule of law, not better.” — Jack Goldsmith (on prosecuting Trump, 50:23)
• “In the face of ... this unprecedented, awful, profoundly anti-democrat attack ... the institutions ... kind of held up.” — Jack Goldsmith (52:41)

Timestamps for Key Segments

• 05:18–10:51: The nature of the pardon power, abuses, and the breakdown of normal DOJ processes
• 11:11–13:37: The self-pardon debate: legal analysis and unknowns
• 14:34–17:43: Broad, blanket, and preemptive pardons; precedent and limitations
• 20:52–23:27: Proposing legal reforms of the pardon process
• 25:59–27:32: Bribes and political favors for pardons; current investigations
• 29:18–34:14: Bill Barr’s tenure, constitutional worldview, and the transition to the Biden DOJ
• 38:18–40:53: The fate of the Durham investigation and challenges for restoring DOJ independence
• 43:35–51:07: The debate over prosecuting Trump, deterrence, and risks of criminalizing politics
• 52:41–54:21: Final thoughts—did the institutions hold?

Conclusion

This episode unpacks the constitutional, historical, and political complexities of presidential pardons and the limits of institutional safeguards, especially under a presidency that tests and often tramples long-standing norms. Goldsmith and Lithwick examine both doctrinal and practical reforms while acknowledging the deep-seated political divides that complicate efforts to restore “business as usual” at the Department of Justice and in government accountability more broadly.

For more on the legal legacy of the Trump presidency and proposals for reform, listeners are encouraged to read Goldsmith and Bauer’s book, "After Trump: Reconstructing the Presidency."