WEBVTT - Bloomberg Law: Wright and Mariotti on Arpaio Pardon (Audio)

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<v Speaker 1>As the nation watched Hurricane Harvey barrel toward landfall in Texas.

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<v Speaker 1>Friday night, the White House released a statement announcing President

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<v Speaker 1>Trump had pardoned controversial Arizona County Sheriff Joe R. Pio.

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<v Speaker 1>Bearing the news of Trump's first pardon. Our Pio was

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<v Speaker 1>one of Trump's earliest supporters. He's become a national symbol

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<v Speaker 1>of and criminally convicted for his tough crackdown on illegal

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<v Speaker 1>immigrants and racial profiling of Latinos. Political leaders in Arizona,

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<v Speaker 1>as well as national leaders, condemned the pardon. Congressman ralg Rehalva,

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<v Speaker 1>a Democrat from Arizona, says it was Trump's wink wink nod,

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<v Speaker 1>not to his very extreme basse. Jora Pile became an

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<v Speaker 1>icon to the ultright, became an icon to UH Neo

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<v Speaker 1>Nazis and white supremaciy across this country. You're excusing and

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<v Speaker 1>pardnering their symbol. It's an encouragement and it embolds them more.

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<v Speaker 1>And that's how good. Arizona Republican Senator John McCain in

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<v Speaker 1>a statement, and that pardoning our Pio undermines Trump's quote

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<v Speaker 1>claim for the respective rule of law. As Mr R.

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<v Speaker 1>Pio has shown no remorse for his actions. Joining us

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<v Speaker 1>as guests are Andrew Wright, professor at Havanna at Savannah

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<v Speaker 1>Law School, and Renando Mariotti, a partner at Thompson Coburn

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<v Speaker 1>and a former federal prosecutor. Andrew Trump has criticized federal

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<v Speaker 1>judges and court rulings. He tried to stop a federal investigation.

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<v Speaker 1>According to James Comeby's testimony, is this pardon any different

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<v Speaker 1>any more shocking? Well, in one sense, it's more shocking

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<v Speaker 1>than these other attacks because in this case, our pious

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<v Speaker 1>the specific crime that he was convicted of was his

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<v Speaker 1>willful disobedience from federal court orders to stop violating people's

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<v Speaker 1>constitutional right. So this was a direct attack in the

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<v Speaker 1>sense in one sense the president of the power to

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<v Speaker 1>partner our pile. But the reasons for it are very

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<v Speaker 1>troubling because the president not only didn't expect an admission

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<v Speaker 1>of guilt from our pile, but he actually endorsed the

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<v Speaker 1>conduct by saying that he did a good job in

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<v Speaker 1>his tweets. So I think the message to the judiciary

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<v Speaker 1>is loud and clear that their ruling was not enforced

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<v Speaker 1>and that the president undermines the message they were trying

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<v Speaker 1>to send for respect for their proceedings. We're not. This

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<v Speaker 1>was done in a way that is unusual for presidential

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<v Speaker 1>pardons in that, you know, you didn't have a lengthy

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<v Speaker 1>Justice Department review first, and it's you know, put aside

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<v Speaker 1>at getting announced late on a Friday night. Does the

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<v Speaker 1>procedural difference here from most pardons amplify that message in anyway? Well,

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<v Speaker 1>you know, it's a great question, I think in and

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<v Speaker 1>of itself, go, you know, doing away with procedure doesn't

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<v Speaker 1>bother me. I mean, you could imagine that, you know,

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<v Speaker 1>for example, they're they have often been cases where civil

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<v Speaker 1>rights leaders were you know, hit with court orders from

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<v Speaker 1>racist judges. For example, you know, you know, you know,

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<v Speaker 1>somebody had been protesting the KKK and got a you know,

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<v Speaker 1>one week sentence, and the president decided to rush to

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<v Speaker 1>get that personal pardon. I would applaud that. I think

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<v Speaker 1>a lot of Americans would. I think what's what's concerning

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<v Speaker 1>here is, as Andy pointed out, obviously the conduct by

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<v Speaker 1>Sheriff Arpeo was essentially flaunting a court order, doing so deliberately,

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<v Speaker 1>showing no remorse whatsoever, something as knows at the law,

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<v Speaker 1>and so when you're in a rush to get that

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<v Speaker 1>guy a pardon. Um, it suggests that you're trying to

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<v Speaker 1>help your your friends, your associates, um, without regard for

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<v Speaker 1>the effect that that may have on the respect for

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<v Speaker 1>the law and the judicial system. Andy, A lot of

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<v Speaker 1>legal experts said it was unlikely that our Pio would

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<v Speaker 1>be sent to prison, and there was about a six

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<v Speaker 1>month sentence ahead, but he had a clean record before that,

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<v Speaker 1>so in his age. So why did Trump do this?

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<v Speaker 1>Is it a signal to those who might be tempted

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<v Speaker 1>to make deals with this special counsel Muller as the

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<v Speaker 1>Russia probe gets closer to Trump that not to worry,

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<v Speaker 1>I'll protect you. Well, it was certainly a message to

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<v Speaker 1>what President Trump considers his hardcore base, to signal to

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<v Speaker 1>them his support of one of their heroes, which is

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<v Speaker 1>unfortunately largely populated by the alt right and white supremacists.

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<v Speaker 1>As as it relates to Russia, you know, it's it's

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<v Speaker 1>it's kind of a dangerous proposition to use this as

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<v Speaker 1>a trial balloon for Russian um pardons because in the

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<v Speaker 1>Russian context, those are self protective and that kind of

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<v Speaker 1>self dealing makes the politics even worse. As bad as

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<v Speaker 1>the politics here were. Um, it will make look you know,

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<v Speaker 1>Trump look like he's doing it for a self interested way,

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<v Speaker 1>I think. Um. And also there are some legal problems

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<v Speaker 1>that come from Russia pardons um for the people involved

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<v Speaker 1>in that. They can to sort a Fifth Amendment right

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<v Speaker 1>not to testify in front of Congress or grand jury

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<v Speaker 1>if they don't face legal jeopardy, uh, for for the

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<v Speaker 1>conduct that they're being questioned about. So, you know, without

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<v Speaker 1>predicting Trump behavior, which I think is a fool's errand

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<v Speaker 1>I would say that there are certainly some arguments that

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<v Speaker 1>would suggest that that might even be worse than this.

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<v Speaker 1>So I wouldn't uh, you know, if I were lawyers

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<v Speaker 1>for those people that might be seeking those pardons, um,

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<v Speaker 1>I would be giving mixed advice to them about the

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<v Speaker 1>nature of this signal nano. As Our Pio's case was

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<v Speaker 1>headed towards trial in the spring, Trump asked Attorney General

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<v Speaker 1>Jeff's Sessions whether it would be possible for the government

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<v Speaker 1>to drop the criminal case against Our Pio, according to

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<v Speaker 1>the Washington Post, and after talking with Sessions, Trump decided

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<v Speaker 1>to let the case go to trial and if Our

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<v Speaker 1>Pio were convicted, he could grant clemency. According to the Post,

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<v Speaker 1>is there a problem with Trump approaching Jeff Sessions in

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<v Speaker 1>that way? All right, that's a very interesting way of

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<v Speaker 1>putting the question. I think let's let me take a

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<v Speaker 1>step back for a minute and say, first of all,

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<v Speaker 1>it's it's highly unusual for the president to ask the

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<v Speaker 1>attorney general to drop a case or to end an

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<v Speaker 1>investigation of an associate or friend of his. I think

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<v Speaker 1>it's inherently problematic. Um. It is um something that at

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<v Speaker 1>the very least is can create a significant um um

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<v Speaker 1>appearance of impropriety. And I believe the Post story said

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<v Speaker 1>that Sessions or and others indicated to the President that

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<v Speaker 1>it was, you know, uh, not appropriate for him to do,

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<v Speaker 1>and that's why he dropped it. And I think it

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<v Speaker 1>is it is especially interesting and especially important because, as

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<v Speaker 1>we know, um, there are allegations made by former FBI

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<v Speaker 1>Director James Comey that the President made a similar request

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<v Speaker 1>of him regarding the investigation of Michael Flynn. And you know,

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<v Speaker 1>there's also been reports that that Mr Muller is investigating,

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<v Speaker 1>um an obstruction charge based upon that conduct. Uh. And

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<v Speaker 1>if I is investigating an obstruction yards based upon the

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<v Speaker 1>president's UH statements regarding ending the Flynn investigation or the

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<v Speaker 1>Russia investigation. This would be a very important data point

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<v Speaker 1>for me because this gives us a second instance where

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<v Speaker 1>the president is asking, uh, the asking law enforcement to

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<v Speaker 1>drop a UM investigation of one of his friends. And

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<v Speaker 1>it brings, uh, you know, it brings to mind, um,

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<v Speaker 1>you know the fact that that UM Mr Mueller is

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<v Speaker 1>going to have to would have to prove to prove

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<v Speaker 1>obstruction the president's corrupt intent, and the best way to

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<v Speaker 1>prove intent is through somebody's words and actions and through

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<v Speaker 1>their pattern of behavior. So I think that this this

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<v Speaker 1>incident could be actually very important for Mr Mueller and

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<v Speaker 1>his investigation. Andy following up on you know, possible consequences

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<v Speaker 1>here UM, Noah Feldman wrote at Call on Bloomberg viewed

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<v Speaker 1>recently about if you know before the part was issued,

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<v Speaker 1>saying if the pardon, if the President pardoned Share for

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<v Speaker 1>a PIO, that it would be the kind of abuse

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<v Speaker 1>of constitutional authority that could conceivably be grounds for impeachment.

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<v Speaker 1>And he noted that you know, James Madison said that

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<v Speaker 1>abuse of the pardon power could be a grounds for impeachment.

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<v Speaker 1>Are is it possible that that you know, there may

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<v Speaker 1>be those kinds of consequences for the presidents as a

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<v Speaker 1>result of this. It's a really good question. I mean,

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<v Speaker 1>you know, impeachment power is an argument, a political argument

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<v Speaker 1>about the law, and so the way you know, it's

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<v Speaker 1>not just whatever the Congress decides, um, but it's also

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<v Speaker 1>not a legal technical definition of what high crimes and

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<v Speaker 1>misdemeanors is. And maladministration or abuse of power can rise

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<v Speaker 1>to a sufficient level that that could certainly be grounds

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<v Speaker 1>for you know, the House of Representatives to decide to

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<v Speaker 1>move forward with impeachment hearings as a theoretical matter, and

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<v Speaker 1>you know, I think certainly abuse of the pardon powers

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<v Speaker 1>one of those core abuse is that was within the

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<v Speaker 1>minds of the framers when they drafted the provision, because

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<v Speaker 1>we're supposed to be a country with it's a rule

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<v Speaker 1>of law and not a rule of men, and the

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<v Speaker 1>pardon power can absolve people of their legal violations, and

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<v Speaker 1>so that's why it's such a delicate power to use,

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<v Speaker 1>even though it's quite important power to make corrections or

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<v Speaker 1>meet out mercy in certain cases. So you know, as

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<v Speaker 1>a as a practical political matter, um, there's not a

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<v Speaker 1>lot of appetite for Republicans that hold the gavels to

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<v Speaker 1>move forward with impeachment hearings. However, I will just say

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<v Speaker 1>that the president has been deteriorating his political environment repeatedly,

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<v Speaker 1>and every time the you know, he attacks the Senate leader,

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<v Speaker 1>Republican leader Mitch McConnell or Paul Ryan, feels forced to

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<v Speaker 1>put out a statement condemning this or that that the

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<v Speaker 1>president is done. He's definitely not aiding his cause politically. Um.

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<v Speaker 1>And then, of course theeen elections could change the composition

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<v Speaker 1>of the chambers, especially in the House side, and that

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<v Speaker 1>could we could really be talking about something else because

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<v Speaker 1>these issues are going to be remaining there whoever is

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<v Speaker 1>in charge of Congress after twenty eighteen election cycle. So

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<v Speaker 1>I think that, you know, this is the kind of

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<v Speaker 1>thing that is the kind of grave abuse that could

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<v Speaker 1>rise to the level of that kind of consideration. But

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<v Speaker 1>you have to get the tipping point first where Congress

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<v Speaker 1>is motivated to move forward with impeachment considerations. Renato. Many

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<v Speaker 1>presidents have been criticized over their pardons, the pardons that

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<v Speaker 1>they've given, and is basically though the pardon power except

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<v Speaker 1>for what Andy was just discussing unlimited virtually unlimited? Is

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<v Speaker 1>there any is there are there any restrictions on it?

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<v Speaker 1>So the legal matter, the pardon powder power is basically

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<v Speaker 1>unlimited or virtually unlimited. I wrote a piece for the

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<v Speaker 1>Hill a couple of weeks ago in which I argued

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<v Speaker 1>that pardoning yourself I think would not be permissible um

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<v Speaker 1>under the Constitution. I think is just a practical matter.

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<v Speaker 1>I don't think courts were um endorsed. You know, if

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<v Speaker 1>that pardon was ultimately challenged in court, I don't really

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<v Speaker 1>think a court would uphold a pardon where you have

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<v Speaker 1>a president committing crimes and then pardnering himself. Just you

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<v Speaker 1>can imagine the potential consequences that that could come if

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<v Speaker 1>a president could do that. Um. Other than that or

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<v Speaker 1>you know, some sort of absurd result or result that's

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<v Speaker 1>that you can make an argument from the text that hey,

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<v Speaker 1>you have to partner another person. I don't think there's

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<v Speaker 1>any limit, and I think that, you know, really the

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<v Speaker 1>question is what can the president you know, in terms

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<v Speaker 1>of partnering, is what could the president do that that

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<v Speaker 1>that would cause Congress to take action because otherwise, um.

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<v Speaker 1>The only other argument I've heard about limiting pardons would

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<v Speaker 1>be if a pardon was itself part of a scheme

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<v Speaker 1>to obstruct justice. Thank you both so much for being

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<v Speaker 1>on Bloomberg Law. That's we're not on. Marianti, a partner

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<v Speaker 1>at Thompson Coburn and Andrew Wright, professor at Savannah Law School.