hello and welcome to the five thirty eight politics by gassed. I'm dealing droop president Trump. About a month and a half left in the White House and its typical, four lame duck president's to use that time to issue pardons and commute the sentences of people who have been convicted of Crimes, as some may remember, of President Obama, commuted the sentences of nearly thousand drug offenders during his final week in office according reporting from various major outlets President Trump, considering taking a rather different approach. Simply issuing blanket pre. Emptive pardons for allies and family members. He's even claimed He has the right to pardon himself like many things during the current presidency, those pardons would be large unprecedented and controversial the president

do have a lot of leeway when it comes to the power to grant clemency soaked to better, their stand that power, how the president has used it, and may plan to use it here with me today, is Amelia. Thomson Devoe Amelia is of course a senior writer here, five thirty eight and our legal correspondent welcome Amelia thanks. Galen may still be here, so bring me back to civics one hour. and why do presidents have the ability to just override the judicial system and grant pardons or commute sentences. yeah. So this power is in credit, we bride and to understand why the founding fathers made it part of the president's power You have to go back, a time when they

were concerned about overreach by the legislative branch by the judicial branch, and they were trying to set up this system that basically allowed those branches to have different checks on each other. You may remember from school, has rock hands Gotham. Can you do the song? Why we're here man? I wish I really were. Secondly, the sign: can you didn't sign now, my care by listeners? Imagine Here's the part where we sing a song in unison from school house. In any event guard so the ideas basically that the legislative branch is inevitably going to pass laws that are too harsh or a sort of get things wrong in various ways.

Judicial system is made up of valuable human beings who are going to issue sentences that are unfair or prosecutors who were going to push for sentences that are too long, and you want the president to have the power to basically bestowed c on people. You want to have a check on those two parts of the governor and this was a power the king had- which makes up a little bit surprising as the founding fathers were not super into the idea of kings in general, at least not all of them, but the idea that there would be this power to grant clemency and that it would be physically unlimited was quite familiar to me. and the idea was just basically that there needs to be some kind of Czech and that's how pardons and computations and other forms of clemency that were more common in the past, but aren't really use now we're in does a pardon, eliminate all criminal liability, so

really depends on what the pardon is and the first to say about pardons is that they don't race convictions. So, like it's, not to say that you didn't commit a crime if you were convicted of a crime, because you were part, for it usually the way they work is someone will be convinced, a federal crime and obviously, when we're talking about pardons, the president can only pardon for federal crimes and commute federal sentences and that's pretty important for we must understand the limits of this power is extremely broad, but you can't pardon for state law offences So the way it usually works is there. Someone will have served their time and they will be present some kind of application to the president and how this has happened in the past has varied, but there's a pretty streamlined process for it. Now through. What is known as the office of the Pardon attorney and they'll say

look? I deserve to be given the rights and privileges of a person who has not committed a federal crime, back like you know in some cases owning a gun in something is being able to vote. I deserved it does backing as ivory paid my debt to society, and I have changed in these various ways. Please give me a pardon So it's not like this was designed to obliterate guilt in some way excepting a pardon can be seen as an admission of guilt, in fact, and you're just sort of a sort of allowing you to move forward with the rights that people who work Convicted of federal crimes have obviously does not help. Parents have always been used, but that's the idea behind them. Ok, so now that we understand the concept, how has this played out in practice? Historically, what do president's most often use this pardon power or clemency power,

more broadly for and what our maybe the examples where it wasn't used. According to the intentions- The earlier days of the country, this power, use pretty much ad hoc. There wasn't really a process for it. I was writing a different story about pardons that I was just looking at this morning came at a couple years ago, but I was reminded that there is this case where Jefferson was presented with applications for pardons of goose thieves, and it was like to to goose thieves in the same week or something like that and he was like didn't I just pardon this person like didn't I just pardner goose, thief, failing that was like the level of the process that existed at that moment, starting around the town, of the twentieth century, a more streamlined process for receiving locations from people and reviewing them was stabbed but that still meant that president's could kind of do whatever they wanted. An error.

we're controversial, pardons, going back to Lincoln, famously pardoned union deserters, which was not a man that was popular in all quarters, but he felt that it was necessary to preserve national harmony and I should say that's another use that the Party in power has sort have been seen to fill. Historically. This idea that there are some moments when, after a war or some kind of national trauma, where prosecuting people or letting people go to prison. For giving them for crimes. May actually prolonged and widen rifts I assume that you are referring to Jimmy Carter, pardoning the thousands of Americans who illegally avoided the exactly and George Washington pardoning the people who were in solved in the whisky rebellion. So it's not just about saying hey this person

This was too long. They were in prison for too many years, or they ve just become a better person and they deserve to have their rights back. It's also sometimes about these bigger gestures. That makes sure that the country like sort of and he is preserved, which like sounds a little bit cheesy, but I think it is. Justification, the president's really do think about and have thought about historic and it has been controversial in the past, but I should Hey that also, there have been pardons that have just been controversial and not for terribly high minded justifications and there some of those that have been more recent, so people who can think back to when Bill Clinton was leaving office, might remember that he pardon a hold on the people on the way out the door and among those were his brother, who had our every time in prison. But you know the fact that he got a pardon was controversial at the time,

and also mark rich, who was a fugitive thing Sera, who is actually living in Switzerland to evade prosecution, and his Ex wife was a long time. Don't to the Clinton's, so that was another pardon the kind of racism eyebrows Another example is when George W Bush was leaving office, he pardoned castle wine Berger and a number of other people from the ragged administration who were in. Created in the IRAN contrasts scandal and were actually needed to go on trial within a few months. Bush himself was likely to be called as a witness in that trial serve unclear if Bush was implicit. Did you know, I think, We never found out because they were pardoned. The trial never happened, and the prosecutor in that case was really really mad about it and actually accused Bush of perpetuating a cover up through departments. So,

I think it's fair to say that, like this, this power has been used controversially in the past, and sometimes when its controversial president's have these high minded justifications, and sometimes those are a little harder to find. Perhaps the most famous presidential pardon use Ford pardoning Nixon for any crimes he may have committed while in office. It was a blanket pardon didn't apply to any specific charges that had already been made. And, of course, there were no convictions where his that fall you either the category of high minded pardons or pardons of convenience that don't have such lofty aims or maybe both countries, both I'm because forward, pardon next in really soon after Nixon resigned and the. He justified it. Afterward was to say, hey, look

it would not be good for the country after this long Watergate scandal that ended with Nixon resigning, the presidency for us to prosecute the president and for the country, They have to live through criminal trial of a former president. That's not something that would be good, and that would suit national aims, and so pardoning Nixon was something he justified is basically letting the country move on that. This, at all, We ve been dramatic enough. It was clear enough that next then head dissipated and wrong doing criminal, doing even to the point where he couldn't be present. anymore. Let's just leave it at that

and move on. Did Americans agree what thou rational yeah they kind of didn't, so I think he can afford that early said. He was trying to do a good thing here. It's hard to tell exactly what the political consequences of any particular action were, but his approval ratings dropped and he was only president for a short time after that, I'm just a couple of years and then lost his next election, and the pardon husbands, what are seen, as you know, maybe the beginning of the end, in terms of Ford being able to serve another term as president, maybe actually in some ways has served as a cautionary tale. Four presidents who came after that Americans are not always receptive to these. Higher minded justifications about why mercy is necessary and that the parties can be pretty serious political liability

So we ve established some of the foundations of pardons. Let's grab drop we know that there is reporting about him considering using pardons for his family, his allies, his lawyer wordy Giuliani. He is already used parted in some high profile ways for Michael Flynn, his former national security adviser, Roger Stone. You ve done through the data actually of both reason president's and trump himself, looking at the object of his clemency. How does it compare to pass residents, and what kinds of things in particular has focused on, honestly a little bit shocked when I looked at this data because I knew that Trump hadn't pardoned all that many people or commuted the sentences of all that many people, but the extent to which he is not in line with other presidents,

is pretty dramatic. I mean this could change. One of the things that I also looked into was the share of acts of clemency that tend to come towards the end of the president's term. Really really high in the modern era. So it is possible that Trump could go on a big pardoning spree. and his record would look less stingy, but right now, Trump has pardoned less than thirty people. He has committed the sentences of less than twenty people, That's compared to Morocco Obama, who had pardoned over two hundred people by the time he left office and commuted the sentences of almost two thousand people. Even George, W Bush, who pardon hundred and eighty nine people and commuted the senses of eleven peoples that that's a lot less than Obama and I think the tray

and in recent years, probably because of that political liability issue that I was mentioning is. The present is just don't use this power all that much bite, trumps numbers are really really low and it's not just that their low the people that he has given pardons too are also pretty different, and I looked at an analysis done by some folks for a law affair which Dugan in pretty serious detail into sort of the like did. These pardons follow the normal process for by which pardons are granted, and did these people have political connections to tramp and was there a political benefit to Trump by pardoning people?

and what they found is that there were some cases where it didn't seem, like Trump had a connection to the people who were pardon and there wasn't incredibly obvious political benefit, but those were really the exception. Trump has given pardons to people who were allies of his, like former Maricopa County sheriff our Pio, who was one of the first people he pardoned toward the beginning of his presidency, and that was a very controversial pardon and he has also given pardons to people whose cases have kind have been made in an orthodox ways, specifically on Fox NEWS, so rod, Lloyd Edge was the former governor of Illinois and was until recently serving a federal sentence. His wife went on Fox news and was making this impassioned case for why he should be given clemency and then lo and behold he's given clemency and so

there is like a pattern of two things happening with trumps, pardons it's that there are very many of them in there now going to ordinary people who are making case about like look, I've repay my debt to society and I have reform, My ways are, you know, however, these cases are made its really situation. That by and large seem to benefit trump in some way. By using this power, People may remember from both the Republican National Convention and perhaps following the news, either political or celebrity. Is that Kim Kardashian Lobby, the president to commute descendants of Alice Johnson, who was a first time nonviolent drug offender and he created her silence and then gave her a fold. Hoddan? Are you saying that is basically the minority of cases that has not largely how the present his used his clemency power. The minority of cases and honestly, I think

make the argument that that kind of falls the self serving category in a way because she was in a Superbowl has for the president. So even though term has commuted the sentences are issue pardons for people who seen as the more traditional recipients of clemency from his then also used to those for political ends and in this case to say, like Look how good I am on criminal justice reform. You look it. You know the number of people in that category drug offenders who he has pardoned or commuted. The descends of there really are that many to give Trump credit there have been some but it's nowhere near as many as Obama, for example, and again he's got a mother I've left maybe he'll, hear this podcast and decide there is a pardon, a bunch of drug offenders, but there's nobody is done so far is worth saying that

those seventeen hundred drug of hunters were pardon under Obama? Their sentences were commuted under Obama. That was his final week in office. So, yes, we discuss all of the data Political liability, why this happens? Dirt a lame duck presidency and so on. So very wild things could change I do want to focus, though, perhaps the most controversial way that things could change in terms of the president's record on pardoning people, his kids, his lawyer, things like that, what kind of precedent, is there for issuing blanket pre emptive pardons for people who have not been charged with a crime or convicted of a crime, but didn't who may be friends or allies. So that specific nexus of things there is really no press.

for me, as I mentioned earlier, President's, have pardoned friends and allies in the past, Vulcan pardoned his brother. His brother had already served his term in federal prison, so that's different in the sense, Maybe you say the president's family member shouldn't get unfair access to this kind of clemency, but it wasn't like he was being pardoned pay. actively and then pre emptive pardons, are also a thing that have happened before famously the pardon of Richard Nixon, which was extremely broad. Add Nixon had not been charged with a crime at that point, and the wording of the pardon didn't just forgive next sin for crimes that were related to the Watergate scandal. The way it was worded just left it open to any crimes against the. U S that might have been committed during Nixon's time in office. So with super super broad and that's happened before. But I guess you could say that Nixon was kind of Ford's ally, but

not in the same way that we're talking about with Rudy, Giuliani or trumps. Kids is this definitely legal? Have any of these engines has been challenged in court, the breadth of the Nixon Pardon or the pre emptive nest So the party in power, the Supreme Court, has been sickly held this power is pretty much unlimited and also the big exception to that is the self pardon. So we don't know if a self pardon is com traditional, and so it's one of the we could find out lovely unanswered questions that yes could could end up being answered for us. But for the most part, this is a power that really relies on the president to adhere to

norms and to fear political backlash, and those are the kind of things that keep the power from being used in ways that it wasn't intended for its very hard to challenge. One of these pardons. I actually I even ask some of the legal experts that I talked to her my most recent story on pardons what would happen, If there was someone paid, a bribe for a pardon and what they told me was. This is a little bit unclear, but probably the pardon would stand even though the bride. itself could subsequently be subject to prosecution. but then it gets messy because, depending on the timing of all of this, you know, then there could be a pardon for the crimes that led to the bribe So there are legal lot of ways for this power to be used that are pretty unsavory and Mostly we dislike, haven't gotten into that territory, because presidents have felt like

for whatever reason that it is not right to use the power that way or there's gonna, be a big political backlash, but from has really not cared about the political backlash in the same way as past presidents, pretty much since the beginning of his presidency. So I think it's fair to say you know it's hard to predict what he's going to do, but it's easier to imagine him moving into this unprecedented territory, certainly than past presidents. Another example of air norms have divined behaviour as opposed to law and norms. Don't necessarily restrict people in any absolute way. I want to talk about some of the specific legal lie. reality that Trump would be trying to pardon on behalf of his inner circle, but first we ve mentioned reporting that Trump is considering pardoning all kinds of people in his circle. Some reports say the west is currently out about twenty people, but

He is considering whether or not he wants to just give out of these blanket preempted pardons because it may seem to imply that some people are guilty and in lots of these laws. all of these cases. No one has been charged or convicted, and so is there. no reason to grant a pardon you wouldn't want to buy. She may also suspect There is a reason that he wants to grant pardons to some of the people and his family or close to him, so. Can you spell that out for us? Why Legal liability. Is he worried about four Donald your arid avant garde, Broody Giuliani and other people close to him, Jarred, Kirshner, etc. It was a little bit hard to say exactly what he's amounting for exactly the reasons that you spelled out, because this is a a situation where there are like federal charges that clearly he's responding to that.

you know. I think you could imagine a whole variety of potential scenarios. There are criminal charges against associates of Review Julie, Army, for example, and so there have been questions for a while about whether Giuliani was going to be implicated in prosecution there is the fact that their actually is an open criminal case that people can think way back to the days of the Mahler investigation, which now feel very long ago. But folks may remember that it appears to be Donald. Trump was named in the charges against his former lawyer, Michael Cohen, in a case involving alleged illegal campaign, contrary and not stormy Daniels, right that Stormy Daniels yeah and to clarify for listeners. It's a hush money payment based on an affair that he would have allegedly had with stormy Daniels I don't feel matters right and Michael Cohen ended up going to federal prison for that from

is in the situation of. Simply having been shielded from legal liability through his whole presidency, which is a little bit of an open question, whether that is actually the case, but in practice it's been the case because everyone has agreed to this interpretation that a President Campi charged with crimes while he's an office. Of course, that liability or that protection is gone as soon as he leaves the White House, and I think that one of the big things I have a question mark. Are these questions about potential tax fraud? This is something that the New York Times is done, really extensive, reporting into the way that Trump has paid his taxes over many decades is obviously hard to know. What is there? A prosecutor would choose to charge and how that would go, but there certainly seems to be some hey you're. That has been documented in the media. That, I think is fair to say, is legally questionable. For example, you know acute write, offs four things

like here cuts, and then there are all these questions also about the funding of trumps inaugural committee. Just sort of all of these little threads. That where there are investigation they haven't touched trumps so far directly, and it is not clear. whether that's because he's president and the people who are following those threads feel that they can legally go after the president, while he is president or if, for some reason there isn't a case there, an invisible the things that this kind of tricky about this for Trump, as you were saying, because human what's gonna happen after he leaves office and part. The big part of this depends on buttons, willingness or Biden Attorney General's willingness to go after him and going back to some of those like high minded justifications. We ve heard for why pardons have been granted. Biden has been talking about,

about unity and how it's really not us. We do in this country. For you know, a new president said prosecute outgoing president, so is those weird situation. Where were hake? What trump might end up doing, because the pardon is just for federal crimes is if he pardons himself or he pardons his kids or he pardon. Julie, honey that none of those might have actually lead to a prosecution anyway, because by does We want to do that, but state prosecutor's might be like who ok though he issued pardons to all those people. So that must mean that there is some smoke, and we're gonna go see if there's fire and he your pardon like he can't stop the attorney general of New York and looking into it, acts, as the attorney general of New York already is, and so there's that others like we're intention of

does issuing this pardon actually in some ways, potentially mode of aid state actors to say oh, there actually have been wrong doing here and what seafood violated state law and go after him or his family members orange. that gives us a little bit of a picture of what is going through. The president's, find and what kind of liability might be facing the people close to him when it comes to these kinds of pardons or family allies or oneself. How do institutional scholars. Think of this. We clarified that it seems largely legal but question mark next to pardoning oneself. It would require constitutional amendments of this is very theoretical, but do people think that the pardon power is too broad that its use too much that it may be? even as used to middle? How do the scholars that you ve talked to think about these questions? Mostly, they think it's not used enough, which is in

staying, because I think you could very easily look like, for example, trumps, track record on this and say: oh maybe there should be more restrictions on how President's can use this, but the votes that I've talked. You have said: no, there is a really important place for this power. Most federal prisoners, canker parole, so If you are in federal prison and your serving a life sentence, a presidential part you're a commutation like that's your shot. You noticed sleep like at a moment when a lot of people are looking back at the laws that were passed in the eightys and Ninetys around the war on drugs and saying, like those were, probably wait too long. Have we to many people in prison? You know. I've talked to quite a few people who have said no actually present should be using this power more and they should be using it

regularly and they should really see it as part of their job, to look for places where either the way laws have written, have failed Americans in some sense or the way that they were applied by judges. Prosecutors has failed and that more of those people should be getting clemency. That doesn't mean that those people want there to be more pardons like ROD, Bulgaria, vetch or mark rich. Or even necessarily like Richard Nixon? I think the high profile pardons that people think about are not the ones by a march that the folks that I've been talking to think there should be more of The problem is just that. Those are the only ones that people here about anymore because presents don't use the power that much and when they do use it it sometimes in these very controversial

These are very worried about those controversial ways: the ones where it like Bill Clinton, pardoning somebody who's, helped his campaigns or Bush senior pardoning folks that were involved in run Contra scandal yeah. There are real worries about that. There are even more worries about Trump, precisely because the more of these countries She'll pardons there are The more just Americans get the sense that this is a map, is in the president's used to help their friends or to get themselves out of legal hot water, and they don't think about clemency in the terms that boast experts on this see that the founders thinking about at witches acts of mercy that should basically ordinary people. So the worry is I mean in a kind of extreme situation. You could imagine a constitutional amendment that would explicitly.

met the pardon power I dont about you. I think it's pretty difficult for me to imagine a constitutional amendment on anything, getting through hum our political system right now, that's pretty unlikely, even if people are pretty mad about the pardon, our, but the other thing is just that we know already the president's see pardon in commutation as a potential source, of political liability, and so I think More realistic, worry is just the more people get the sense that was just kind of an avenue for corruption, the more they will punish precedents for using it politically and that has created a situation where President's already use it much less than they did in the past, and you could see that can during the future. It will be really interesting to see how Biden uses the power, for example, whether he tries to follow and Obama's footsteps and and yet the sentences of a lot of drug offenders, whether he waits until

this presidency whenever that is, I think that all tell us something about how he's reading the tea leaves politically about. Why trumps pardons have done two perceptions of this tower right. important question, because it seems like Trump has done, a lot of things that might traditionally took off voters, but that he has a high floor One key may now be worried about the political repercussions at this point if he doesn't plan on money again, but if he does went on running and twenty twenty four, maybe he does care survey. We see what the president does and we will see if there are any political repercussions. Thank you so much for that very detailed education on pardons. I have learned a lot, but I do have one more question for you before. You leave the past. While we have your, we are reporting skulls here and there draw college is meeting on Monday. I want

to get a little bit of an update on the kinds of legal maneuvering that the president and his lawyers have been using to try to overturn the election and what has happened. Maybe this is somewhat brief. I've been reading the news and it doesn't look like they ve been making much headway or actually anyhow way at all. But what are you have they been making and other. the arguments left to make, and is this done in the courts This is a fun one, because I keep thinking they will run out of arguments to make, and yet this is still playing out in court, even though from the beginning. It's been quite clear that, though without that the election, we're not gonna, be overturned by trumps legal new varying for variety, of residence. The results were, does not close, and so his lawyers in the states have been made being a variety of arguments that have been getting uniformly rejected are almost uniformly rejected.

Today either are about issues that really No chance of affecting the come of the election that affects just a very, very, very small number of votes and those are the places where they have a few very small limited victories that their meaningless because nowhere near the magnitude that would be needed to change the results in, for example, a state like Slovenia and it would have to happen in multiple states for trumped even have a chance of overturning the result and then there has been arguments that have been much broader physically challenging, like the whole setup of vote by mail, which is just to go into court and stay the vote by mail in a state. The way it was set up is unconstitutional after an election has already happened, is not going

and federal judges have basically been say in more or less polite terms, get out of my court room and some state judges to so were now at a point where all of the states have certified their results, and there is now a request for an emergency order from Republican led states led by Texas at this is supported by Trump asking to invalidate millions of ballots in Georgia, Wisconsin, Michigan and Pennsylvania, and I think this it has proved that you can bring all kinds of arguments in court and now it doesn't have any bearing on whether they're going to be successful if this was successful, it could swing the election to trump. It is vanishingly unlikely that the Supreme Court would choose

A lot of times when we talk about the court system, we are talking about the persuasions of the judges and justices involved, whether their liberal or conservative, leaning, who appointed then does it seem like there is any ideological divide on the bench when it to these elections issues. Really. I think we ve seen a lot of judges appointed by Republicans by Democrats from different states. That split lacked judges on party lines and they're all coming down the same way, and I think even those that the Supreme Court now has this very strong six justice conservative majority. They also really seem to have no appetite to wait into this, so it it's been a pretty strong statement of the independence of the judiciary,

It also would be pretty shocking if it had come out any other way. Just because the results of the election were so decisive so both in terms of the size of brightens electoral college victory and the margins that he won by increased AIDS, it's just much harder to say. I'm, like pollution, even speculate. What would have happened if we had a situation? and with a narrow margin in a single pivotal state that the election could have turned on, and there were a bunch of legal. Which is their like? We might have had the name I mean today, yes exactly like if we had. If we had a repeat of the two thousand, a lecture. it's hard to predict. What would have happened, but in this case We are hearing from judged it over and over again, it's like you asking me to overturn the clear of an election, and I'm just not going to do that, and so it

really encouraging to see judge after judge reinforce that principle, it also would have been. De frankly, disturbing I think if we had seen any other movement in the other direction and given how weak these legal arguments were well enlightening, as always, but let's leave it there for now thinks Amelia thanks Gallon Amelia Thompson to row is Senor Writer at five. Thirty eight pan are legal. Responded for this pipe cast. My name is deal indirect. Twenty chow, as in the virtual control Room Clare Bidding Airy Curtis, is on audio editing you get in touch, right. Emailing us at podcast at five, thirty, eight dot com. You can also course treated us with any questions or comments. If Four out of the show leaves a rating or review in the Apple podcast store or tells him about us thanks for listening her