1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloomberg Law, with June Brusso from Bloomberg Radio. 2 00:00:09,960 --> 00:00:12,920 Speaker 2: Donald Trump failed to convince a judge to throw out 3 00:00:12,960 --> 00:00:15,840 Speaker 2: his conviction in the New York hush money case on 4 00:00:15,960 --> 00:00:20,040 Speaker 2: presidential immunity grounds, but the case is far from over 5 00:00:20,440 --> 00:00:24,119 Speaker 2: as the president elect continues to press other challenges to 6 00:00:24,200 --> 00:00:28,560 Speaker 2: that verdict. Judge One Merschawan rejected Trump's arguments that the 7 00:00:28,600 --> 00:00:32,000 Speaker 2: trial was tainted by evidence that wouldn't have been allowed 8 00:00:32,400 --> 00:00:36,440 Speaker 2: under a controversial Supreme Court decision in July that gives 9 00:00:36,479 --> 00:00:40,680 Speaker 2: presidents broad immunity from criminal charges. Joining me is former 10 00:00:40,720 --> 00:00:45,240 Speaker 2: federal prosecutor Robert Mintz, a partner McCarter in English, Bob 11 00:00:45,320 --> 00:00:46,640 Speaker 2: tell us about the decision. 12 00:00:47,520 --> 00:00:51,400 Speaker 1: The judges ruling essentially rejected Donald Trump's argument that a 13 00:00:51,440 --> 00:00:55,960 Speaker 1: recent Supreme Court ruling that created criminal immunity for former 14 00:00:56,040 --> 00:01:00,959 Speaker 1: presidents require the dismissal or the overturn of the conviction 15 00:01:01,440 --> 00:01:03,920 Speaker 1: in the New York case, and he upheld the former 16 00:01:04,000 --> 00:01:07,679 Speaker 1: president's felony conviction for falsifying records to cover up a 17 00:01:07,720 --> 00:01:08,440 Speaker 1: sex scandal. 18 00:01:08,720 --> 00:01:12,840 Speaker 2: People might be confused because the Supreme Court decision related 19 00:01:12,880 --> 00:01:17,000 Speaker 2: to presidential actions while he was in office, but in 20 00:01:17,000 --> 00:01:20,959 Speaker 2: this case, the actions occurred before he took office. 21 00:01:21,240 --> 00:01:24,880 Speaker 1: Yeah, that's exactly right. The Supreme Court decision that really 22 00:01:24,920 --> 00:01:28,399 Speaker 1: forms the basis for this motion by the defense to 23 00:01:28,520 --> 00:01:31,880 Speaker 1: dismiss the New York case was an immunity decision that 24 00:01:32,080 --> 00:01:35,200 Speaker 1: came out of the Special Council's case in Washington, DC, 25 00:01:35,720 --> 00:01:38,880 Speaker 1: where mister Trump was accused of plotting to overthrow his 26 00:01:39,000 --> 00:01:42,120 Speaker 1: twenty twenty election laws. It had nothing to do with 27 00:01:42,240 --> 00:01:44,920 Speaker 1: the New York case. It was a sixty three ruling 28 00:01:45,200 --> 00:01:47,680 Speaker 1: that held that a former president was entitled to at 29 00:01:47,800 --> 00:01:53,000 Speaker 1: least presumptive immunity from prosecution for all of his official acts. 30 00:01:53,040 --> 00:01:56,120 Speaker 1: And that's really the keyword here, official act. So what 31 00:01:56,160 --> 00:01:59,600 Speaker 1: the Trump defense team did is to say that although 32 00:01:59,600 --> 00:02:03,000 Speaker 1: that's Supreme Court case came about as a result of 33 00:02:03,040 --> 00:02:07,080 Speaker 1: another prosecution, their argument was that it apply here as well. 34 00:02:07,280 --> 00:02:10,280 Speaker 1: And essentially what they were arguing was that enlightened the 35 00:02:10,320 --> 00:02:15,720 Speaker 1: Supreme Court's immunity decision, prosecutors that improperly relied on certain evidence, 36 00:02:16,040 --> 00:02:20,520 Speaker 1: evidence that they said involved official communications during his first 37 00:02:20,560 --> 00:02:23,560 Speaker 1: term in the White House, and that that therefore tainted 38 00:02:23,600 --> 00:02:25,560 Speaker 1: the conviction. It had to be overturned. 39 00:02:26,440 --> 00:02:31,120 Speaker 2: Some of that evidence conversations actually occurred in the Oval 40 00:02:31,160 --> 00:02:34,959 Speaker 2: Office of the White House, so explain the judges analysis 41 00:02:34,960 --> 00:02:38,080 Speaker 2: in finding that these weren't official acts. 42 00:02:38,440 --> 00:02:41,000 Speaker 1: The defense argued that there were two pieces of evidence 43 00:02:41,040 --> 00:02:43,720 Speaker 1: here that should not have been admitted during the trial. 44 00:02:43,840 --> 00:02:47,440 Speaker 1: One focus on certain tweets that President Trump had been 45 00:02:47,480 --> 00:02:50,480 Speaker 1: involved in that were used during the trial that the 46 00:02:50,520 --> 00:02:54,560 Speaker 1: defense argued should have been excluded as official acts. Justice 47 00:02:54,600 --> 00:02:58,160 Speaker 1: Marshon rejected that defense effort to portray the tweets as 48 00:02:58,200 --> 00:03:01,880 Speaker 1: official acts, concluding that they do not constitute the type 49 00:03:01,919 --> 00:03:05,280 Speaker 1: of conduct that the Supreme Court intended to protect in 50 00:03:05,360 --> 00:03:08,880 Speaker 1: that decision. The other argument of the defense made, which 51 00:03:09,000 --> 00:03:11,560 Speaker 1: was really a stronger argument and one I think that 52 00:03:11,760 --> 00:03:15,280 Speaker 1: Justice Marsham gave more time to and considering, was the 53 00:03:15,400 --> 00:03:18,919 Speaker 1: argument that certain testimony that was admitted during the trial, 54 00:03:19,000 --> 00:03:22,480 Speaker 1: testimony that, according to the defense, was critical to the 55 00:03:22,520 --> 00:03:25,640 Speaker 1: conviction that that should never have been permitted. And what 56 00:03:25,720 --> 00:03:28,080 Speaker 1: it focused on was the testimony of two of mister 57 00:03:28,080 --> 00:03:32,720 Speaker 1: Trump's former White House employees, his communications director Hope Hicks 58 00:03:32,760 --> 00:03:36,920 Speaker 1: and Maddelin wester House, a director of Oval Office operations. 59 00:03:37,080 --> 00:03:40,840 Speaker 1: The testimony that came in through the prosecution's case was 60 00:03:40,840 --> 00:03:43,400 Speaker 1: when miss Hicks told the jury about a discussion she 61 00:03:43,480 --> 00:03:46,520 Speaker 1: had with mister Trump in the White House after the 62 00:03:46,600 --> 00:03:49,200 Speaker 1: hush money deal with Miss Daniels came to light. Miss 63 00:03:49,320 --> 00:03:53,320 Speaker 1: Daniels was the former porn star who was allegedly paid 64 00:03:53,320 --> 00:03:56,920 Speaker 1: off by mister Trump in order to keep that story 65 00:03:56,920 --> 00:04:01,320 Speaker 1: from breaking during the twenty sixteen campaign. The prosecution argued 66 00:04:01,360 --> 00:04:04,160 Speaker 1: that the discussions between Miss Hicks and mister Trump were 67 00:04:04,080 --> 00:04:08,160 Speaker 1: related to solely unofficial conduct and therefore didn't fall within 68 00:04:08,200 --> 00:04:11,120 Speaker 1: the scope of the Supreme Court decision, and that's exactly 69 00:04:11,160 --> 00:04:14,800 Speaker 1: what the Court ultimately decided. The Court ruled that the 70 00:04:14,840 --> 00:04:19,520 Speaker 1: evidence of prosecutors had used was decided the personal act 71 00:04:19,720 --> 00:04:22,600 Speaker 1: and had to do with falsifying business records and was 72 00:04:22,720 --> 00:04:25,359 Speaker 1: not the type of official conduct that the Supreme Court 73 00:04:25,440 --> 00:04:28,640 Speaker 1: was getting at in that immunity decision because it posed 74 00:04:28,640 --> 00:04:31,919 Speaker 1: no danger of intrusion on the authority and function of 75 00:04:31,960 --> 00:04:33,000 Speaker 1: the executive branch. 76 00:04:33,680 --> 00:04:38,800 Speaker 2: So Judge Murshawn was in completely unchartered waters here in 77 00:04:38,920 --> 00:04:44,720 Speaker 2: applying that rather ambiguous Supreme Court decision on presidential immunity. 78 00:04:45,200 --> 00:04:48,440 Speaker 2: What does that mean for the chances of reversal on appeal? 79 00:04:48,839 --> 00:04:51,880 Speaker 1: So let's keep in mind that that Supreme Court decision, 80 00:04:52,040 --> 00:04:55,159 Speaker 1: which was highly controversial in the eyes of some people, 81 00:04:55,839 --> 00:04:59,280 Speaker 1: has never been actually applied in practice to a case. 82 00:04:59,320 --> 00:04:59,640 Speaker 3: Below. 83 00:04:59,680 --> 00:05:02,720 Speaker 1: This is the first time that any judge is trying 84 00:05:02,760 --> 00:05:06,240 Speaker 1: to take the guidance from that immunity decision and apply 85 00:05:06,360 --> 00:05:09,359 Speaker 1: it to an actual case. So it's certain that the 86 00:05:09,480 --> 00:05:12,839 Speaker 1: Trump team is going to appeal this ruling, first to 87 00:05:12,960 --> 00:05:16,280 Speaker 1: the Appeals Court in New York, then to what is 88 00:05:16,400 --> 00:05:19,200 Speaker 1: essentially the New York Supreme Court, which is called the 89 00:05:19,240 --> 00:05:21,760 Speaker 1: Court of Appeals in New York, and then beyond that 90 00:05:21,800 --> 00:05:24,080 Speaker 1: they may take it to the US Supreme Court. So 91 00:05:24,200 --> 00:05:27,560 Speaker 1: it ultimately may wind up before the US Supreme Court again, 92 00:05:27,960 --> 00:05:32,440 Speaker 1: because the decision has never been tested before, and really, 93 00:05:32,480 --> 00:05:35,760 Speaker 1: as you say, this is uncharted territory for any judge 94 00:05:35,760 --> 00:05:38,560 Speaker 1: to apply this decision to an actual criminal case. 95 00:05:38,760 --> 00:05:43,440 Speaker 2: Judge Marshawn engaged in three levels of analysis here, ending 96 00:05:43,520 --> 00:05:47,000 Speaker 2: with the idea of harmless error sort of even if 97 00:05:47,000 --> 00:05:51,360 Speaker 2: I'm wrong about admitting the evidence, its harmless error, it 98 00:05:51,400 --> 00:05:53,240 Speaker 2: wouldn't have changed the verdict. 99 00:05:53,640 --> 00:05:56,640 Speaker 1: Yeah, So the judge did go through several layers of 100 00:05:56,680 --> 00:05:59,920 Speaker 1: analysis here. First, he found that there were some technical 101 00:06:00,120 --> 00:06:03,120 Speaker 1: issues that the Trump defense team had not raised this 102 00:06:03,240 --> 00:06:05,400 Speaker 1: at the time of trial. One of the arguments was 103 00:06:05,600 --> 00:06:08,800 Speaker 1: that they objected to hopeix testimony literally on the first 104 00:06:08,880 --> 00:06:10,800 Speaker 1: day of trial, and it was too late to raise it. 105 00:06:10,960 --> 00:06:14,320 Speaker 1: Another argument is that they did not preserve the objection 106 00:06:14,440 --> 00:06:17,080 Speaker 1: during the course of the trial, but ultimately that was 107 00:06:17,120 --> 00:06:20,120 Speaker 1: not the basis on which the justice made his decision. 108 00:06:20,440 --> 00:06:24,200 Speaker 1: He then looked to the core of the Supreme Court decision, 109 00:06:24,240 --> 00:06:27,440 Speaker 1: which is are these official acts or are they not 110 00:06:27,560 --> 00:06:31,480 Speaker 1: official acts? Because the Supreme Court decision says there's presumptive 111 00:06:31,520 --> 00:06:35,720 Speaker 1: immunity for official conduct, but they did not say that 112 00:06:35,880 --> 00:06:40,360 Speaker 1: every act by a president while in office constitutes official conduct. 113 00:06:40,480 --> 00:06:43,720 Speaker 1: And so he looked at that issue and ultimately determined 114 00:06:44,000 --> 00:06:47,640 Speaker 1: that the conduct here that the defense was complaining about 115 00:06:48,040 --> 00:06:51,600 Speaker 1: was not within the official scope of the president's authority 116 00:06:51,640 --> 00:06:55,919 Speaker 1: as president because it either involved conduct that predated his 117 00:06:56,080 --> 00:06:59,840 Speaker 1: becoming president, or even after he became president, it was 118 00:07:00,040 --> 00:07:04,880 Speaker 1: focused on issues that predated his becoming president. Then the 119 00:07:04,960 --> 00:07:08,360 Speaker 1: judge further looked at the question of even if it 120 00:07:08,600 --> 00:07:11,960 Speaker 1: was admitted improperly, in other words, even if you were 121 00:07:12,000 --> 00:07:15,320 Speaker 1: to concede that the testimony of Hopehicks should not have 122 00:07:15,360 --> 00:07:17,680 Speaker 1: been presented to the jury, they judged fat it with 123 00:07:17,720 --> 00:07:20,640 Speaker 1: something called harmless error, which means that in a case 124 00:07:20,680 --> 00:07:23,880 Speaker 1: where there is an enormous amount of evidence and there's 125 00:07:23,960 --> 00:07:26,680 Speaker 1: one piece of evidence that the court would say perhaps 126 00:07:26,960 --> 00:07:30,720 Speaker 1: was improvidently admitted and put before the jury, you don't 127 00:07:30,800 --> 00:07:33,400 Speaker 1: have to throw the entire case out and retried it 128 00:07:33,520 --> 00:07:36,840 Speaker 1: again if the judge concludes that it was what's called 129 00:07:36,920 --> 00:07:40,680 Speaker 1: harmless error. In other words, there was an overwhelming abundance 130 00:07:40,680 --> 00:07:43,160 Speaker 1: of evidence that the jury could have relied on for 131 00:07:43,200 --> 00:07:47,720 Speaker 1: the conviction, and this additional piece of evidence was essentially surplus. 132 00:07:47,760 --> 00:07:50,520 Speaker 1: The isg it wasn't necessary the jury had more than 133 00:07:50,560 --> 00:07:53,080 Speaker 1: an apple basis to reach the verdict that it did 134 00:07:53,120 --> 00:07:56,440 Speaker 1: without considering the evidence that may have been improperly presented 135 00:07:56,480 --> 00:07:56,760 Speaker 1: to them. 136 00:07:57,080 --> 00:08:00,600 Speaker 2: So about these motions flow sort of logical from that 137 00:08:00,720 --> 00:08:04,280 Speaker 2: Supreme Court case. But Trump has also made a motion 138 00:08:04,440 --> 00:08:08,200 Speaker 2: to throw out the case entirely due to his re election, 139 00:08:08,480 --> 00:08:13,920 Speaker 2: claiming he has categorical immunity from prosecution. These are all 140 00:08:14,160 --> 00:08:18,280 Speaker 2: novel arguments. Of course, We've never had a president who's 141 00:08:18,280 --> 00:08:22,760 Speaker 2: been elected despite having felony convictions tell us about his arguments. 142 00:08:23,320 --> 00:08:27,600 Speaker 1: Sure, so, there is considerable deference that is given to 143 00:08:27,720 --> 00:08:30,960 Speaker 1: presidents in order to make sure that there are not 144 00:08:31,200 --> 00:08:34,360 Speaker 1: legal proceedings that interfere with their ability to carry out 145 00:08:34,400 --> 00:08:38,120 Speaker 1: their official acts. Obviously, you don't want a president focusing 146 00:08:38,280 --> 00:08:42,000 Speaker 1: on a criminal conviction or a criminal prosecution while they're 147 00:08:42,000 --> 00:08:44,880 Speaker 1: in office, and so there's a lot of difference, and 148 00:08:44,960 --> 00:08:48,040 Speaker 1: there's a lot of law that says that a president 149 00:08:48,040 --> 00:08:50,640 Speaker 1: should not be encumbered with these types of things while 150 00:08:50,640 --> 00:08:53,840 Speaker 1: they're in office. And there's also some unwritten Department of 151 00:08:54,000 --> 00:08:57,200 Speaker 1: Justice policies out there that says you don't indict a 152 00:08:57,280 --> 00:09:00,440 Speaker 1: sitting president for the very same reasons. So the Trump 153 00:09:00,520 --> 00:09:04,239 Speaker 1: defense team is latching on to those types of decisions 154 00:09:04,240 --> 00:09:07,640 Speaker 1: and those types of policies to say that this conviction 155 00:09:08,320 --> 00:09:12,120 Speaker 1: really would interfere with President Trump's ability to serve his 156 00:09:12,240 --> 00:09:15,040 Speaker 1: second term here, and they're asking that this New York 157 00:09:15,040 --> 00:09:19,120 Speaker 1: case be unwinded. They're saying that the electoral victory really 158 00:09:19,160 --> 00:09:22,720 Speaker 1: requires that this case be thrown out because it would 159 00:09:22,760 --> 00:09:25,960 Speaker 1: interfere with his ability to carry out his duties as 160 00:09:26,000 --> 00:09:28,640 Speaker 1: president of the United States. And one of the things 161 00:09:28,679 --> 00:09:33,120 Speaker 1: that prosecutors have offered up here is the opportunity to 162 00:09:33,240 --> 00:09:37,680 Speaker 1: simply stay this case and to await the sentencing until 163 00:09:37,760 --> 00:09:40,880 Speaker 1: after President Trump is no longer in office. The Trump 164 00:09:40,960 --> 00:09:43,560 Speaker 1: defense team has attacked that as well, saying that you 165 00:09:43,679 --> 00:09:47,000 Speaker 1: could not have a president who is able to freely 166 00:09:47,080 --> 00:09:50,600 Speaker 1: operate and make decisions if hanging over his head is 167 00:09:50,640 --> 00:09:53,960 Speaker 1: the prospect that anything he does while in office may 168 00:09:54,000 --> 00:09:57,520 Speaker 1: affect his criminal sentencing, which would come at the conclusion 169 00:09:57,520 --> 00:09:58,040 Speaker 1: of his term. 170 00:09:58,679 --> 00:10:01,920 Speaker 2: On the other side of that, you have a jury verdict. 171 00:10:01,960 --> 00:10:05,640 Speaker 2: So a jury came back and made this decision, is 172 00:10:05,679 --> 00:10:09,120 Speaker 2: the judge just going to toss that decision because Trump 173 00:10:09,160 --> 00:10:12,960 Speaker 2: became president. It seems like a slap in the face 174 00:10:13,000 --> 00:10:14,679 Speaker 2: of the justice system if he does. 175 00:10:14,520 --> 00:10:18,320 Speaker 1: That well, And that's exactly what prosecutors are arguing. I 176 00:10:18,320 --> 00:10:22,400 Speaker 1: think the Manhattana is sensitive to the unique circumstance in 177 00:10:22,440 --> 00:10:26,720 Speaker 1: which they find themselves, with this case having ganti jury 178 00:10:27,040 --> 00:10:31,880 Speaker 1: having reached a verdict, a verdict in which jury's unanimously 179 00:10:32,000 --> 00:10:36,040 Speaker 1: convicted former President Trump on thirty four accounts, but he 180 00:10:36,160 --> 00:10:39,760 Speaker 1: is not yet been sentenced, and that sentencing was delayed 181 00:10:39,800 --> 00:10:43,400 Speaker 1: by appeals and other issues. And now, of course he's 182 00:10:43,440 --> 00:10:46,440 Speaker 1: been re elected and will a month from now he's 183 00:10:46,440 --> 00:10:48,640 Speaker 1: sworn in his president of the United States. So the 184 00:10:48,760 --> 00:10:51,080 Speaker 1: DA's office has to figure out what did they do 185 00:10:51,200 --> 00:10:53,800 Speaker 1: about this sentencing? And there's a couple options that they 186 00:10:53,840 --> 00:10:57,640 Speaker 1: put out there. One is they could hold the sentencing 187 00:10:57,720 --> 00:11:01,800 Speaker 1: off until after he's completed his term. Another option would 188 00:11:01,840 --> 00:11:05,319 Speaker 1: be to allow the sentencing to go forward and Justice 189 00:11:05,360 --> 00:11:08,120 Speaker 1: Mershon could sentence form of President Trump to a term 190 00:11:08,120 --> 00:11:12,360 Speaker 1: of probation, which would not involve incarceration that interferes his 191 00:11:12,400 --> 00:11:16,079 Speaker 1: ability to serve as president. And then another really novel 192 00:11:16,160 --> 00:11:20,120 Speaker 1: idea that the DA throughout was to treat this case 193 00:11:20,280 --> 00:11:23,360 Speaker 1: as they do in a situation in which a defendant 194 00:11:23,520 --> 00:11:28,320 Speaker 1: goes to trial, is convicted, and then subsequently dies before 195 00:11:28,360 --> 00:11:32,559 Speaker 1: they are sentenced. In that case, the conviction is not vacated, 196 00:11:33,000 --> 00:11:36,080 Speaker 1: but there's also no sentencing, and so it just stands 197 00:11:36,320 --> 00:11:39,800 Speaker 1: as a conviction, but there's never a sentencing, and that's 198 00:11:39,880 --> 00:11:42,480 Speaker 1: just the way the case ends. And Manhattandia's office has 199 00:11:42,559 --> 00:11:45,360 Speaker 1: thrown that out as an option. Also, I don't think 200 00:11:45,360 --> 00:11:47,760 Speaker 1: that's likely to be taken up by the judge. I 201 00:11:47,760 --> 00:11:50,480 Speaker 1: think the judge is likely to either at the end 202 00:11:50,559 --> 00:11:53,920 Speaker 1: of the day proceed with the sentencing and send President 203 00:11:53,960 --> 00:11:57,600 Speaker 1: Trump to probation. More likely, he may simply hold this 204 00:11:57,840 --> 00:12:01,400 Speaker 1: sent thing off until after President from complete his term, 205 00:12:01,760 --> 00:12:04,520 Speaker 1: but Justice Vershon still has to rule on a number 206 00:12:04,520 --> 00:12:07,320 Speaker 1: of these other motions that the Trump defense team have 207 00:12:07,440 --> 00:12:10,280 Speaker 1: filed with the court. And bear in mind, once again, 208 00:12:10,679 --> 00:12:13,760 Speaker 1: ask to every one of these decisions made by Justice Vershon, 209 00:12:13,840 --> 00:12:16,600 Speaker 1: They're all likely to be appealed not only to the 210 00:12:16,600 --> 00:12:18,360 Speaker 1: Court of Appeals in New York, but to the New 211 00:12:18,440 --> 00:12:21,120 Speaker 1: York Supreme Court and then perhaps ultimately to the United 212 00:12:21,160 --> 00:12:24,440 Speaker 1: States Supreme Court. So all of these decisions will likely 213 00:12:24,480 --> 00:12:26,880 Speaker 1: be held in advance for quite some time as they 214 00:12:26,960 --> 00:12:29,040 Speaker 1: run through the appeals process. 215 00:12:29,240 --> 00:12:31,599 Speaker 2: It seems as if what the Trump defense team is 216 00:12:31,640 --> 00:12:34,160 Speaker 2: trying to do is to get this going fast so 217 00:12:34,200 --> 00:12:37,320 Speaker 2: that Trump doesn't go down in history as the first 218 00:12:37,480 --> 00:12:42,440 Speaker 2: criminal felon to serve as president. And January twentieth is 219 00:12:42,760 --> 00:12:45,920 Speaker 2: quickly approaching, so not likely that this is all going 220 00:12:46,000 --> 00:12:47,920 Speaker 2: to get done by then, is it. No. 221 00:12:48,000 --> 00:12:50,200 Speaker 1: I don't think we're going to see any finality to 222 00:12:50,320 --> 00:12:53,880 Speaker 1: this before former President Trump is sworn in for his 223 00:12:53,960 --> 00:12:58,319 Speaker 1: second term. It will really likely be held in abeyance, 224 00:12:58,480 --> 00:13:02,520 Speaker 1: and the questions about whether this conviction will ultimately remain 225 00:13:02,880 --> 00:13:05,920 Speaker 1: or not will not be answered for many months, if 226 00:13:05,960 --> 00:13:07,160 Speaker 1: not years, down the road. 227 00:13:07,400 --> 00:13:10,160 Speaker 2: So lots more decisions to come in this case. Thanks Bob. 228 00:13:10,559 --> 00:13:13,960 Speaker 2: That's Robert Mints of maccarter and English coming up the 229 00:13:14,040 --> 00:13:17,479 Speaker 2: controversy around Biden's commutations. This is Bloomberg. 230 00:13:20,920 --> 00:13:25,720 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 231 00:13:26,760 --> 00:13:29,720 Speaker 2: It was the largest single day act of clemency in 232 00:13:29,800 --> 00:13:34,000 Speaker 2: modern history. President Joe Biden commuted the sentences of about 233 00:13:34,040 --> 00:13:37,440 Speaker 2: fifteen hundred people who were released from prison and placed 234 00:13:37,480 --> 00:13:41,640 Speaker 2: on home confinement during the pandemic, and pardoned thirty nine 235 00:13:41,679 --> 00:13:46,319 Speaker 2: Americans convicted of nonviolent crimes. Here's White House Press Secretary 236 00:13:46,400 --> 00:13:47,600 Speaker 2: Corrine Jean Pierre. 237 00:13:48,040 --> 00:13:53,480 Speaker 4: The Americans receiving relief today include a decorated military veteran, 238 00:13:53,840 --> 00:13:57,680 Speaker 4: a nurse who has led response for a number of 239 00:13:57,840 --> 00:13:59,000 Speaker 4: natural disasters. 240 00:13:59,440 --> 00:14:02,679 Speaker 2: However, she did not mention that included in the clemency 241 00:14:02,760 --> 00:14:07,520 Speaker 2: grant was former Pennsylvania judge Michael Conahan, who orchestrated the 242 00:14:07,600 --> 00:14:11,040 Speaker 2: Kids for Cash scheme to send some twenty three hundred 243 00:14:11,160 --> 00:14:16,040 Speaker 2: children to for profit prisons on false charges in exchange 244 00:14:16,120 --> 00:14:20,960 Speaker 2: for nearly three million dollars in kickbacks. Pennsylvania Governor Josh Shapiro, 245 00:14:21,160 --> 00:14:24,920 Speaker 2: a Democrat, condemned that clemency grant. 246 00:14:24,560 --> 00:14:27,760 Speaker 5: But I do feel strongly that President Biden got it 247 00:14:27,960 --> 00:14:33,280 Speaker 5: absolutely wrong and created a lot of pain here in 248 00:14:33,400 --> 00:14:38,040 Speaker 5: northeastern Pennsylvania. This was not only a black eye on 249 00:14:38,080 --> 00:14:42,000 Speaker 5: the community the Kids for Cash scandal, but it also 250 00:14:42,600 --> 00:14:47,720 Speaker 5: infected families in really deep and profound in sad ways, 251 00:14:48,680 --> 00:14:52,480 Speaker 5: some children took their lives because of this. Families were 252 00:14:52,520 --> 00:14:53,320 Speaker 5: torn apart. 253 00:14:53,640 --> 00:14:56,880 Speaker 2: Joining me as an expert in constitutional law, Harold Krant, 254 00:14:56,880 --> 00:15:00,240 Speaker 2: a professor at the Chicago Kent College of Law, tell 255 00:15:00,320 --> 00:15:01,760 Speaker 2: us about the clemency grant. 256 00:15:01,840 --> 00:15:08,360 Speaker 3: Generally, President Biden Leman's administration used his August power to 257 00:15:08,400 --> 00:15:12,360 Speaker 3: grant pardons and clemency to the largest number of people 258 00:15:12,360 --> 00:15:16,120 Speaker 3: who ever are given some kind of relief in one day, 259 00:15:16,160 --> 00:15:19,400 Speaker 3: and there were fifteen hundred people who received clemency. When 260 00:15:19,400 --> 00:15:24,640 Speaker 3: clemency is it retains the fact of conviction, any kind 261 00:15:24,800 --> 00:15:28,320 Speaker 3: of problems with convictions that follow on for life, right 262 00:15:28,400 --> 00:15:31,480 Speaker 3: to vote in some states, right to hold office, et cetera. 263 00:15:31,720 --> 00:15:34,920 Speaker 3: But it allows them to be free of any kind 264 00:15:35,200 --> 00:15:39,640 Speaker 3: of you either jail time or other kind of oversights 265 00:15:39,720 --> 00:15:43,360 Speaker 3: such as probation, drug testing, et cetera. And he granted 266 00:15:43,400 --> 00:15:47,920 Speaker 3: fifteen hundred people this blessing of clemency for those who 267 00:15:47,920 --> 00:15:52,600 Speaker 3: had previously been released during COVID but because of fear 268 00:15:52,640 --> 00:15:54,800 Speaker 3: of overcrowding in prisons, in the fact that there were 269 00:15:54,840 --> 00:15:58,320 Speaker 3: non violent offenders, so it was an easy objective way 270 00:15:58,760 --> 00:16:02,480 Speaker 3: to reach out and show some people mercy who again 271 00:16:02,600 --> 00:16:07,240 Speaker 3: had been determined previously were nonviolent and could be released 272 00:16:07,240 --> 00:16:10,640 Speaker 3: without any kind of problems. So it was a handyway. 273 00:16:11,160 --> 00:16:14,280 Speaker 3: It wiped the slate clean for the most part for 274 00:16:14,400 --> 00:16:18,360 Speaker 3: these individuals. But of course it was somewhat controversial because 275 00:16:18,400 --> 00:16:21,440 Speaker 3: even though these were non violent offenders, he didn't pick 276 00:16:21,480 --> 00:16:26,760 Speaker 3: and choose amongst them, and so there were some pretty behaffors. 277 00:16:26,840 --> 00:16:30,240 Speaker 3: Let us say, who received the gift of clemency in 278 00:16:30,280 --> 00:16:32,440 Speaker 3: that fifteen hundred total right. 279 00:16:32,600 --> 00:16:37,000 Speaker 2: So one of the clemencies was to a judge who 280 00:16:37,160 --> 00:16:41,360 Speaker 2: helped orchestrate one of the worst judicial scandals in history, 281 00:16:41,960 --> 00:16:45,080 Speaker 2: a scheme to send children to two profit jails in 282 00:16:45,160 --> 00:16:50,120 Speaker 2: exchange for kickbacks, and even the governor of Pennsylvania, a Democrat, 283 00:16:50,600 --> 00:16:53,720 Speaker 2: said I do feel strongly that President Biden got it 284 00:16:53,760 --> 00:16:57,280 Speaker 2: absolutely wrong and created a lot of pain here in 285 00:16:57,360 --> 00:17:02,520 Speaker 2: northeastern Pennsylvania. Another was a woman who was convicted of 286 00:17:02,560 --> 00:17:06,480 Speaker 2: him Beasley more than fifty three million dollars in taxpayer money, 287 00:17:06,520 --> 00:17:09,760 Speaker 2: which was one of the largest depths of public funds 288 00:17:09,760 --> 00:17:14,600 Speaker 2: in Illinois state history. Shouldn't the Biden administration have excluded 289 00:17:14,920 --> 00:17:18,000 Speaker 2: some of these people with egregious crimes? 290 00:17:18,280 --> 00:17:20,280 Speaker 3: Yeah, I mean the question that it should be raised 291 00:17:20,720 --> 00:17:24,480 Speaker 3: is why didn't this happen all during the administration? Should 292 00:17:24,520 --> 00:17:27,879 Speaker 3: have been more ordered, more carefully thought out. I mean 293 00:17:27,920 --> 00:17:31,920 Speaker 3: Rita Grondwell, who had just mentioned, was the controller in Dixon, Illinois, 294 00:17:32,119 --> 00:17:35,479 Speaker 3: and you know, she took fifty million dollars from kids, 295 00:17:35,760 --> 00:17:38,680 Speaker 3: you know, in terms of the ability to educate them. 296 00:17:38,880 --> 00:17:40,920 Speaker 3: And she still she returned some of it, but still 297 00:17:40,920 --> 00:17:43,000 Speaker 3: Owes I think at least ten million dollars at least 298 00:17:43,040 --> 00:17:46,120 Speaker 3: is missing right now. Still, and of course the Pennsylvania 299 00:17:46,160 --> 00:17:48,520 Speaker 3: Kids for Cash scandal is terrible. And if he had 300 00:17:48,560 --> 00:17:52,920 Speaker 3: done a case by case analysis of who deserved clemency, 301 00:17:53,920 --> 00:17:56,320 Speaker 3: they presumably would not have received it. I mean, clearly, 302 00:17:56,320 --> 00:17:59,080 Speaker 3: they are already out of jail, and they have demonstrated 303 00:17:59,119 --> 00:18:02,320 Speaker 3: to some authority that they aren't likely to commit offense 304 00:18:02,400 --> 00:18:05,879 Speaker 3: again in the future. But do they really merit clemency 305 00:18:06,160 --> 00:18:09,800 Speaker 3: wiping off any kind of oversight they have from probation, 306 00:18:10,320 --> 00:18:12,920 Speaker 3: that's the question. But he couldn't do that because he 307 00:18:12,960 --> 00:18:15,960 Speaker 3: waited a long time. It wasn't his priority and he 308 00:18:16,000 --> 00:18:18,119 Speaker 3: wanted to do something towards the end of the administration. 309 00:18:18,200 --> 00:18:21,359 Speaker 3: I don't think he's done, and so he just used 310 00:18:21,400 --> 00:18:25,640 Speaker 3: bright line rules of whoever has been previously released as 311 00:18:25,720 --> 00:18:29,520 Speaker 3: not a danger, he'll let them wipe off anymore oversight 312 00:18:29,920 --> 00:18:33,360 Speaker 3: from their books. So in some cases they had three 313 00:18:33,440 --> 00:18:37,800 Speaker 3: years of probation oversight, meaning meetings with probation officers, presumably 314 00:18:37,880 --> 00:18:43,120 Speaker 3: drug testing and all that now is forgiven for those individuals, 315 00:18:43,160 --> 00:18:44,760 Speaker 3: including the ones that we just mentioned. 316 00:18:45,160 --> 00:18:50,080 Speaker 2: Before this, President Obama granted three hundred and thirty commutations 317 00:18:50,080 --> 00:18:52,400 Speaker 2: to non violent drug offenders, and that was the most 318 00:18:52,440 --> 00:18:55,720 Speaker 2: granted in one day in US history until now. I mean, 319 00:18:56,320 --> 00:18:57,960 Speaker 2: is he just trying to beat the record? 320 00:18:58,560 --> 00:19:01,760 Speaker 3: No, I think it's a recognition and better do something late, 321 00:19:02,080 --> 00:19:04,679 Speaker 3: not perfect, and do nothing at all. And you know, 322 00:19:04,720 --> 00:19:07,040 Speaker 3: I agree with that. It's it's just too bad that 323 00:19:07,080 --> 00:19:09,960 Speaker 3: this was a not a priority at all, you know, 324 00:19:10,040 --> 00:19:13,679 Speaker 3: during his administration, and so he had to address this 325 00:19:13,800 --> 00:19:15,920 Speaker 3: in more of a you know, kind of a ham 326 00:19:16,000 --> 00:19:19,879 Speaker 3: handed way because he didn't have the time to decide 327 00:19:19,960 --> 00:19:22,040 Speaker 3: which of these fifteen hundred to grant and which not 328 00:19:22,160 --> 00:19:23,000 Speaker 3: to So. 329 00:19:23,119 --> 00:19:26,840 Speaker 2: He's still considering. The White House said he's still considering 330 00:19:26,960 --> 00:19:32,000 Speaker 2: more pardons and commutations, and opponents of capital punishment have 331 00:19:32,119 --> 00:19:36,520 Speaker 2: called on him to empty federal death row by commuting 332 00:19:36,560 --> 00:19:40,760 Speaker 2: the inmates sentences to life in prison. Knowing that Donald 333 00:19:40,760 --> 00:19:45,320 Speaker 2: Trump is going to once he gets into office, start 334 00:19:45,359 --> 00:19:48,320 Speaker 2: federal executions again as he did in his first term. 335 00:19:48,560 --> 00:19:52,600 Speaker 3: Yeah, I mean prison finding campaigned on a pledge that 336 00:19:52,640 --> 00:19:55,800 Speaker 3: he was against the death penalty. So the question, as 337 00:19:55,840 --> 00:19:58,760 Speaker 3: origen when we've talked about it before, is why has 338 00:19:58,760 --> 00:20:01,959 Speaker 3: he taken so long to decide whether to commute the 339 00:20:01,960 --> 00:20:06,920 Speaker 3: sentences of those forty individuals who are languishing on death 340 00:20:07,040 --> 00:20:10,679 Speaker 3: row in federal prisons. Now, there's definitely some bad actors 341 00:20:10,720 --> 00:20:13,520 Speaker 3: involved in those forty individuals, there's no doubt about it, 342 00:20:13,880 --> 00:20:19,359 Speaker 3: including the Boston marathon massacre mastermind. But the question is, 343 00:20:19,359 --> 00:20:22,240 Speaker 3: if you don't believe in the death penalty as a 344 00:20:22,280 --> 00:20:26,760 Speaker 3: moral basis, shouldn't you be commuting those sentences? And my 345 00:20:26,880 --> 00:20:29,880 Speaker 3: guess is he will, But again, why takes so long? 346 00:20:30,240 --> 00:20:33,720 Speaker 2: The focus has been for the last few months, I mean, 347 00:20:33,800 --> 00:20:36,960 Speaker 2: since he lost the election whether or not he is 348 00:20:37,040 --> 00:20:41,080 Speaker 2: going to do preemptive pardons of people who might be 349 00:20:41,280 --> 00:20:46,040 Speaker 2: targeted by the Justice Department under Trump. I mean, there 350 00:20:46,040 --> 00:20:49,160 Speaker 2: are many people that Trump has said he's going to target, 351 00:20:49,320 --> 00:20:53,000 Speaker 2: like Jack Smith and you know Alvin Bragg, the people 352 00:20:53,000 --> 00:20:56,320 Speaker 2: who prosecuted him. Some are saying that would set a 353 00:20:56,359 --> 00:21:01,320 Speaker 2: bad precedent, But preemptive pardons are not on presidented are they. 354 00:21:01,480 --> 00:21:05,000 Speaker 3: So Preemptive partners are part of the president's playbook. Most 355 00:21:05,080 --> 00:21:08,720 Speaker 3: famous is Gerald Forge preemptive pardon for President Nixon after 356 00:21:09,000 --> 00:21:12,880 Speaker 3: President Nixon resigned through the Watergate scandal. And the way 357 00:21:13,119 --> 00:21:17,800 Speaker 3: President Ford wrote that was for a preemptively pardon for 358 00:21:17,880 --> 00:21:21,720 Speaker 3: any kind of illegal activities that he undertook as president 359 00:21:21,760 --> 00:21:25,640 Speaker 3: of the United States. So that is a precedent which 360 00:21:25,720 --> 00:21:28,680 Speaker 3: is quite broad. And of course there was a bit 361 00:21:28,680 --> 00:21:31,760 Speaker 3: of a preemptive partner for a son hunter Biden as well, 362 00:21:32,000 --> 00:21:34,880 Speaker 3: the combined pardon for what was identified in the past, 363 00:21:34,880 --> 00:21:37,240 Speaker 3: but also preemptively for any ten year period or so 364 00:21:37,600 --> 00:21:41,000 Speaker 3: of what he might be charged for. So it's accepted 365 00:21:41,000 --> 00:21:44,159 Speaker 3: that president's power includes the prempted power, and that really, 366 00:21:44,600 --> 00:21:46,919 Speaker 3: you know, it is a terrible conflict for those who 367 00:21:47,040 --> 00:21:49,320 Speaker 3: might be extended it because if you think you've done 368 00:21:49,400 --> 00:21:52,440 Speaker 3: no wrong. Let's say you're a Jack Smith, do you 369 00:21:52,480 --> 00:21:54,520 Speaker 3: know that if you take this get out of jail 370 00:21:54,560 --> 00:21:57,200 Speaker 3: free card it helps your family, you don't have to 371 00:21:57,240 --> 00:21:59,960 Speaker 3: go through public disgrace of a trial and the class 372 00:22:00,359 --> 00:22:02,600 Speaker 3: and the pressures of it. But on the other hand, 373 00:22:02,680 --> 00:22:06,080 Speaker 3: do you look a little guilty? And so that's what 374 00:22:06,359 --> 00:22:09,040 Speaker 3: There's been a lot of discussions, I'm sure in the 375 00:22:09,040 --> 00:22:11,960 Speaker 3: inner circles of the White House and amongst these individuals 376 00:22:11,960 --> 00:22:15,320 Speaker 3: who've been targeted by President Trump about what should happen. 377 00:22:15,400 --> 00:22:17,800 Speaker 3: So it's not an easy trade off. And I think 378 00:22:17,840 --> 00:22:21,399 Speaker 3: if given a choice, some of those on President Trump's 379 00:22:21,640 --> 00:22:24,399 Speaker 3: list would say, yes, I'll take the part in just 380 00:22:24,440 --> 00:22:27,159 Speaker 3: in case, it's just important for my family, and others 381 00:22:27,160 --> 00:22:30,480 Speaker 3: would say never, because I'm never going to look as 382 00:22:30,520 --> 00:22:33,520 Speaker 3: if I did anything wrong or not. And it may 383 00:22:33,560 --> 00:22:37,840 Speaker 3: be that one option is for President Biden just to 384 00:22:37,880 --> 00:22:41,040 Speaker 3: extend the part to those who earlier had said they'll 385 00:22:41,080 --> 00:22:43,240 Speaker 3: take it and they don't want to run the risk 386 00:22:43,320 --> 00:22:45,600 Speaker 3: of all the money, all the bad publicity. 387 00:22:46,000 --> 00:22:49,280 Speaker 2: Yeah, because some of them, it seems like some of 388 00:22:49,280 --> 00:22:52,719 Speaker 2: them would be protected from prosecution. For example, he's often 389 00:22:52,800 --> 00:22:57,720 Speaker 2: mentioned Senator elect Adam Schiff, But he'd be protected, wouldn't 390 00:22:57,720 --> 00:23:01,560 Speaker 2: he under the Speech and debate clause, And federal and 391 00:23:01,680 --> 00:23:05,920 Speaker 2: state prosecutors who are operating under the color of law 392 00:23:06,200 --> 00:23:07,960 Speaker 2: would also be protected. Yeah. 393 00:23:08,000 --> 00:23:11,280 Speaker 3: I mean, most of these so called Trump prosecutions of 394 00:23:11,359 --> 00:23:14,480 Speaker 3: his opponents are fanciful because you know, it wouldn't be 395 00:23:14,520 --> 00:23:17,640 Speaker 3: able to indict them even for grand jury. And as 396 00:23:17,680 --> 00:23:22,040 Speaker 3: you mentioned, there's a variety of immunities. Nancy Pelosi and 397 00:23:22,240 --> 00:23:26,399 Speaker 3: Attom Shift obviously have the community from being members of 398 00:23:26,520 --> 00:23:32,000 Speaker 3: Congress in their investigations, and the executive officials that prosecutors 399 00:23:32,400 --> 00:23:35,680 Speaker 3: have absolute immunity for the prosecutorial actions, such as Jack 400 00:23:35,720 --> 00:23:39,040 Speaker 3: Smith to some extent Merrick Ireland as well. So it's 401 00:23:39,040 --> 00:23:42,920 Speaker 3: really unlikely that President Trump would have any kind of 402 00:23:43,000 --> 00:23:48,000 Speaker 3: success in prosecuting most of those whose already identify as targets. 403 00:23:48,080 --> 00:23:50,320 Speaker 3: But you know, you never know. Maybe there's going to 404 00:23:50,359 --> 00:23:55,280 Speaker 3: be a state prosecutor who's willing to do the President's 405 00:23:55,320 --> 00:23:58,840 Speaker 3: bidding who isn't found by the same kind of immunity doctrines, 406 00:23:59,320 --> 00:24:02,439 Speaker 3: or may it's just a matter of public humiliation that 407 00:24:02,480 --> 00:24:05,439 Speaker 3: he's trying to wreck. But I think the chances of 408 00:24:05,520 --> 00:24:08,399 Speaker 3: success on this political basis are few and far between. 409 00:24:08,760 --> 00:24:12,040 Speaker 2: But as you mentioned, even if you'll be successful ultimately 410 00:24:12,280 --> 00:24:15,160 Speaker 2: because of the speech and debate clause or something else, 411 00:24:15,480 --> 00:24:17,560 Speaker 2: you still have to go through what may be a 412 00:24:17,680 --> 00:24:20,840 Speaker 2: humiliating process which could take time to resolve. 413 00:24:21,520 --> 00:24:23,400 Speaker 3: And who's going to pay for the attorneys? Right, It's 414 00:24:23,440 --> 00:24:27,159 Speaker 3: not clear that individuals have kind of ready access to 415 00:24:27,280 --> 00:24:29,639 Speaker 3: free legal work to protect them. I mean, there should 416 00:24:29,640 --> 00:24:33,680 Speaker 3: be some people who would volunteer their time to represent individuals, 417 00:24:33,680 --> 00:24:36,959 Speaker 3: but to some extent, individuals wires are going to need 418 00:24:37,000 --> 00:24:39,439 Speaker 3: to be paid in order to raise these arguments to 419 00:24:39,520 --> 00:24:43,680 Speaker 3: get out from under the shadow of some kind of indictment. 420 00:24:43,760 --> 00:24:47,320 Speaker 3: So there are trade offs. And Adam Schmiths already said 421 00:24:47,320 --> 00:24:49,640 Speaker 3: he would have rejected pardon whether it's true. Who knows 422 00:24:49,680 --> 00:24:52,680 Speaker 3: it's likely to be true. I'm sure Nancy Pelosi would 423 00:24:52,720 --> 00:24:55,800 Speaker 3: reject it as well, but maybe others would say, hey, 424 00:24:55,880 --> 00:24:56,639 Speaker 3: I want to protection. 425 00:24:57,200 --> 00:25:00,000 Speaker 2: Coming up next on the Bloomberg Law Show, Donald Trump 426 00:25:00,080 --> 00:25:03,320 Speaker 2: says he'll grant some pardons as soon as he takes office. 427 00:25:03,640 --> 00:25:07,480 Speaker 2: I'm June Grosso and you're listening to Bloomberg. President Joe 428 00:25:07,520 --> 00:25:11,560 Speaker 2: Biden is commuting the sentences of roughly fifteen hundred people 429 00:25:11,840 --> 00:25:15,120 Speaker 2: who were released from prison and placed on home confinement 430 00:25:15,560 --> 00:25:19,920 Speaker 2: during the coronavirus pandemic, and he's pardoning thirty nine Americans 431 00:25:20,000 --> 00:25:24,399 Speaker 2: convicted of nonviolent crimes. Biden said he would be taking 432 00:25:24,440 --> 00:25:27,280 Speaker 2: more steps in the weeks ahead and would continue to 433 00:25:27,359 --> 00:25:32,160 Speaker 2: review clemency petitions. It's not clear whether he'll issue preemptive 434 00:25:32,280 --> 00:25:36,280 Speaker 2: pardons for those that might be targeted by Donald Trump 435 00:25:36,440 --> 00:25:39,840 Speaker 2: when he takes office, but those who received the pardons 436 00:25:39,840 --> 00:25:43,320 Speaker 2: would have to accept them, and some like California Senator 437 00:25:43,320 --> 00:25:45,920 Speaker 2: elect Adam shiff who was part of the House committee 438 00:25:45,960 --> 00:25:50,399 Speaker 2: that investigated the January sixth insurrection, said such a pardon 439 00:25:50,680 --> 00:25:52,120 Speaker 2: would be unnecessary. 440 00:25:53,440 --> 00:25:54,800 Speaker 3: I think it's unnecessary. 441 00:25:54,840 --> 00:26:00,880 Speaker 5: But second, the precedent of giving blanket pardons preempted blanket gardens. 442 00:26:01,040 --> 00:26:03,000 Speaker 3: On the way out of an administration. I think as 443 00:26:03,040 --> 00:26:04,439 Speaker 3: a precedent we don't want to set. 444 00:26:04,680 --> 00:26:06,600 Speaker 2: I've been talking to Harold Krant, a professor at the 445 00:26:06,640 --> 00:26:10,560 Speaker 2: Chicago Kent College of Law. So how as you heard 446 00:26:10,720 --> 00:26:13,920 Speaker 2: some say that it would set a precedent, a bad 447 00:26:14,040 --> 00:26:19,080 Speaker 2: precedent if Biden issues these preemptive pardons on his way 448 00:26:19,119 --> 00:26:22,639 Speaker 2: out of office, that Trump might replicate that when he 449 00:26:22,760 --> 00:26:23,639 Speaker 2: leaves office. 450 00:26:23,880 --> 00:26:26,280 Speaker 3: Well, I mean the door's already opened, right, I mean, 451 00:26:26,320 --> 00:26:29,000 Speaker 3: I don't think there's any kind of issue about that. 452 00:26:29,119 --> 00:26:31,560 Speaker 3: I mean, we know that one hundred Biden received, We 453 00:26:31,600 --> 00:26:34,800 Speaker 3: know that President Clinton's have further received a pardon. So 454 00:26:35,080 --> 00:26:37,520 Speaker 3: the presidents are there. It's just the question is is 455 00:26:37,520 --> 00:26:40,400 Speaker 3: their political will for the president to continue to use 456 00:26:40,760 --> 00:26:44,720 Speaker 3: the pardon in that kind of fashion for political reasons, 457 00:26:44,880 --> 00:26:47,840 Speaker 3: But you know, there may be again good reasons to 458 00:26:47,880 --> 00:26:51,520 Speaker 3: protect people who were loyal to the administration and say that, 459 00:26:51,640 --> 00:26:54,480 Speaker 3: you know, as a going away present, and so this 460 00:26:54,560 --> 00:26:57,480 Speaker 3: is a promise to loyal members of administration that you 461 00:26:57,480 --> 00:27:00,360 Speaker 3: don't have anything to worry about in terms of revenge, 462 00:27:00,520 --> 00:27:03,919 Speaker 3: and the vengeance you know isn't spikotis. I mean, President 463 00:27:03,920 --> 00:27:06,680 Speaker 3: Trump on numerous occasions had said I want to make 464 00:27:06,680 --> 00:27:08,720 Speaker 3: this a priority of my administration. So I don't think 465 00:27:08,720 --> 00:27:12,240 Speaker 3: it's frivolous, even though I think most of these induidments 466 00:27:12,280 --> 00:27:15,320 Speaker 3: will be frivolous. But nonetheless it costs time and money 467 00:27:15,720 --> 00:27:18,880 Speaker 3: to fight against it. So we're willing, are. 468 00:27:19,160 --> 00:27:22,639 Speaker 2: So you mentioned Hunter Biden's pardon, and even when the 469 00:27:22,680 --> 00:27:27,359 Speaker 2: White House Press Secretary was announcing these recent clemency. There 470 00:27:27,359 --> 00:27:31,760 Speaker 2: were questions still about the President's decision to pardon his son, Hunter, 471 00:27:31,840 --> 00:27:34,680 Speaker 2: and it seems like, you know, in the history books 472 00:27:34,960 --> 00:27:37,879 Speaker 2: when they talk about his administration and pardon, the first 473 00:27:37,880 --> 00:27:40,520 Speaker 2: thing they may say is he pardoned his son Hunter Biden, 474 00:27:41,000 --> 00:27:43,439 Speaker 2: just like you hear about Bill Clinton pardon his brother. 475 00:27:43,800 --> 00:27:47,480 Speaker 2: And the Press secretary defended Biden's pardon of his son 476 00:27:47,880 --> 00:27:51,040 Speaker 2: by referring to the letter that he wrote saying that 477 00:27:51,400 --> 00:27:54,440 Speaker 2: Hunter Biden was singled out because he was my son, 478 00:27:54,680 --> 00:27:58,520 Speaker 2: and raw politics entered into the process. But what did 479 00:27:58,560 --> 00:28:03,399 Speaker 2: you think about the blanket nature of that pardon over 480 00:28:04,080 --> 00:28:07,040 Speaker 2: a ten year period. Whatever he's done over a ten 481 00:28:07,119 --> 00:28:09,360 Speaker 2: year period, whether it's been charged yet or not. 482 00:28:10,000 --> 00:28:13,280 Speaker 3: To me, it seems that there is some concern by 483 00:28:13,440 --> 00:28:16,639 Speaker 3: President Biden that his son may have done something else. Right, 484 00:28:16,680 --> 00:28:19,960 Speaker 3: that's the implication that one can draw from that. He's 485 00:28:20,080 --> 00:28:23,119 Speaker 3: not just being pardoned for what he was charged with, 486 00:28:23,160 --> 00:28:26,240 Speaker 3: the tax evasion or the drug use. I mean, he 487 00:28:26,280 --> 00:28:28,040 Speaker 3: may have been charged with other crimes. And I think 488 00:28:28,600 --> 00:28:30,960 Speaker 3: that's what it sounds like to the average observer. And 489 00:28:31,080 --> 00:28:33,280 Speaker 3: the President Biden wanted to take the step and make 490 00:28:33,320 --> 00:28:36,640 Speaker 3: sure that the Trump administration did not look for other 491 00:28:36,800 --> 00:28:40,520 Speaker 3: kinds of misbehavior and misconduct by Hunter Biden, and they 492 00:28:40,560 --> 00:28:44,000 Speaker 3: probably would have. So I think it's his decision to 493 00:28:44,040 --> 00:28:47,600 Speaker 3: protect his son, but it does look to again an 494 00:28:48,040 --> 00:28:52,400 Speaker 3: ignorant observer, that there was something to hide, something to protect, 495 00:28:52,600 --> 00:28:54,960 Speaker 3: and we may find out about it later, we may not. 496 00:28:55,440 --> 00:28:58,760 Speaker 2: On his last day in office, Bill Clinton pardoned Mark Rich, 497 00:28:58,960 --> 00:29:03,600 Speaker 2: this fugitive nancier who'd made deals with shady international regimes. 498 00:29:03,600 --> 00:29:06,040 Speaker 2: He was on the FBI's ten most wanted list, and 499 00:29:06,040 --> 00:29:09,000 Speaker 2: Clinton has since said he regrets the pardon because, I mean, 500 00:29:09,040 --> 00:29:11,360 Speaker 2: do you think that, no matter what good he does 501 00:29:11,400 --> 00:29:14,960 Speaker 2: with clemency petitions or pardons, the first thing that comes 502 00:29:15,040 --> 00:29:16,880 Speaker 2: up in the history books is going to be he 503 00:29:17,000 --> 00:29:18,760 Speaker 2: pardoned his son when he said. 504 00:29:18,600 --> 00:29:21,200 Speaker 3: He wouldn't exactly, And there's two things about it. I mean, 505 00:29:21,320 --> 00:29:23,520 Speaker 3: first of all, he said he wouldn't pardon the son 506 00:29:23,600 --> 00:29:26,000 Speaker 3: and then did it, which again looks bad in terms 507 00:29:26,000 --> 00:29:29,600 Speaker 3: of history. But the second thing that my reaction is 508 00:29:30,200 --> 00:29:34,400 Speaker 3: he seems to be blaming his own Justice department for 509 00:29:34,600 --> 00:29:38,000 Speaker 3: politicized prosecution of Hunter. That doesn't go down well with 510 00:29:38,040 --> 00:29:40,080 Speaker 3: me at all in the sense that he's sort of 511 00:29:40,120 --> 00:29:43,400 Speaker 3: abandoning those that he in fact has empowered to make 512 00:29:43,440 --> 00:29:46,240 Speaker 3: those decisions. So I think for that reason as well, 513 00:29:46,800 --> 00:29:50,440 Speaker 3: the pardon of Hunter Biden is going to sit uneasily 514 00:29:50,640 --> 00:29:53,800 Speaker 3: with many people. Again the change of mind and the 515 00:29:53,840 --> 00:29:57,240 Speaker 3: fact that he blamed his own Justice Department for politicized prosecution. 516 00:29:58,080 --> 00:30:04,840 Speaker 2: Some have actually suggested, and one being Pennsylvania Democratic Senator Fetterman, 517 00:30:05,440 --> 00:30:10,240 Speaker 2: that Biden should pardon Trump before he leaves office. Does 518 00:30:10,240 --> 00:30:11,480 Speaker 2: that make any sense to you? 519 00:30:11,840 --> 00:30:14,480 Speaker 3: It could make sense. I think the time has passed 520 00:30:14,520 --> 00:30:18,200 Speaker 3: for when he should have offered that from now President Trump. 521 00:30:18,280 --> 00:30:21,080 Speaker 3: I think it would have been a kind of gesture, 522 00:30:21,120 --> 00:30:24,640 Speaker 3: if you will, about bringing the very politicized halves of 523 00:30:24,680 --> 00:30:28,240 Speaker 3: our country together. President Trump may well have said no, 524 00:30:28,800 --> 00:30:31,160 Speaker 3: and of course the pardon would not have extended to 525 00:30:31,200 --> 00:30:34,560 Speaker 3: the Georgia in New your cases, But because the likelihood 526 00:30:35,200 --> 00:30:38,400 Speaker 3: was so little now of continued prosecution in four years, 527 00:30:38,880 --> 00:30:41,000 Speaker 3: it probably would have been an easy thing for President 528 00:30:41,000 --> 00:30:43,760 Speaker 3: Biden's to do. I think with each successive week it's 529 00:30:43,800 --> 00:30:47,840 Speaker 3: less likely that he'll use that power to offer President 530 00:30:47,880 --> 00:30:48,640 Speaker 3: Trump pardon. 531 00:30:48,920 --> 00:30:50,880 Speaker 2: So now let's turn to Trump for a minute, because 532 00:30:50,920 --> 00:30:54,520 Speaker 2: he said in an interview published with Time magazine, he 533 00:30:54,640 --> 00:30:57,480 Speaker 2: said that within minutes or hours of taking office, he 534 00:30:57,480 --> 00:31:02,160 Speaker 2: would pardon people convicted of crime related to the January 535 00:31:02,320 --> 00:31:05,840 Speaker 2: sixth attack. And Trump has been saying versions of that 536 00:31:06,120 --> 00:31:09,120 Speaker 2: for years. What kind of a message would that send? 537 00:31:09,560 --> 00:31:12,280 Speaker 3: Well, he has said that consistently, but he's been inconsistent 538 00:31:12,560 --> 00:31:17,480 Speaker 3: with respect to whether to offer pardon to all January 539 00:31:17,640 --> 00:31:22,200 Speaker 3: sixth sort of insurgents, if you will, protesters, or just 540 00:31:22,320 --> 00:31:25,560 Speaker 3: those who are nonviolent. You know, I can understand the 541 00:31:25,920 --> 00:31:30,120 Speaker 3: pardon for the nonviolentce trespassers if you will, into the capitals, 542 00:31:30,280 --> 00:31:33,800 Speaker 3: But I think with those who actually attacked officers, whether 543 00:31:33,840 --> 00:31:37,760 Speaker 3: they were capital officers or PC police officers, you know, 544 00:31:37,760 --> 00:31:40,120 Speaker 3: I think that it's in a terrible signal that you 545 00:31:40,160 --> 00:31:43,880 Speaker 3: can attack a police officer and the President's going to 546 00:31:44,080 --> 00:31:45,560 Speaker 3: get out of jail card free. 547 00:31:45,760 --> 00:31:49,000 Speaker 2: The early December that Biden administration received nearly twelve thousand 548 00:31:49,000 --> 00:31:52,840 Speaker 2: petitions for clemency and more than fourteen hundred petitions for pardons. 549 00:31:53,080 --> 00:31:56,240 Speaker 2: So do you think that we'll hear more pardons or 550 00:31:56,400 --> 00:31:58,880 Speaker 2: grants of clemency before he leaves office. 551 00:31:59,200 --> 00:32:01,160 Speaker 3: I'm convinced will, but it's not going to be this 552 00:32:01,840 --> 00:32:06,040 Speaker 3: fullsale nature. As the most recent list of clemency petitions 553 00:32:06,080 --> 00:32:10,240 Speaker 3: in particular revealed. I think there'll be more targeted individuals, 554 00:32:10,680 --> 00:32:14,520 Speaker 3: case by a case basis, those whose applications may have 555 00:32:14,560 --> 00:32:18,720 Speaker 3: been pending for several years now, so we'll see more. 556 00:32:19,240 --> 00:32:24,760 Speaker 3: And I'm still guessing that we'll see commutations for those 557 00:32:24,880 --> 00:32:29,560 Speaker 3: on death row, which are obviously everybody is concerned about. 558 00:32:30,120 --> 00:32:32,959 Speaker 3: But time will tell. Now, the one thing President Biden 559 00:32:33,200 --> 00:32:35,840 Speaker 3: could do in some of these last cases is also 560 00:32:35,920 --> 00:32:39,560 Speaker 3: attached conditions to some of these clemency or parts. We 561 00:32:39,680 --> 00:32:42,680 Speaker 3: know from the past that the Supreme Court has upheld 562 00:32:42,680 --> 00:32:46,920 Speaker 3: the use of conditions on pardons, So perhaps some of 563 00:32:46,920 --> 00:32:50,320 Speaker 3: the offenders can be commuted on the ground that they 564 00:32:50,840 --> 00:32:55,360 Speaker 3: do consider to have drug testing every x number of months, 565 00:32:55,440 --> 00:33:00,760 Speaker 3: or some other offenders might be pardoned completely as long 566 00:33:00,800 --> 00:33:05,160 Speaker 3: as they don't engage in certain kinds of such such 567 00:33:05,200 --> 00:33:07,520 Speaker 3: as the controller of the Dixon School District that we 568 00:33:07,640 --> 00:33:10,360 Speaker 3: talk to, maybe a condition on her clemency should have 569 00:33:10,400 --> 00:33:13,680 Speaker 3: been that she never worked as a controller or accountants. Again, 570 00:33:14,040 --> 00:33:18,200 Speaker 3: so we might see some individualized uses of the clemency 571 00:33:18,240 --> 00:33:21,080 Speaker 3: power to attach a condition to protect the public a 572 00:33:21,120 --> 00:33:23,600 Speaker 3: little more than he has so far, but we'll have 573 00:33:23,640 --> 00:33:25,200 Speaker 3: to see that that will only be on a case 574 00:33:25,200 --> 00:33:28,640 Speaker 3: by case basis if we need extra protections, but he 575 00:33:28,720 --> 00:33:32,280 Speaker 3: still wants to protect an individual from either staying in 576 00:33:32,520 --> 00:33:37,920 Speaker 3: jail or from being on continued probation for three, four 577 00:33:38,000 --> 00:33:41,120 Speaker 3: or five more years, as many were in the recent 578 00:33:41,240 --> 00:33:44,160 Speaker 3: fifteen hundred acts of clemency that he offered. 579 00:33:44,400 --> 00:33:46,560 Speaker 2: Sure, we're going to be hearing a lot more about 580 00:33:46,600 --> 00:33:50,120 Speaker 2: this in the month to come. Thanks so much. How 581 00:33:50,760 --> 00:33:54,200 Speaker 2: that's Professor Harold Krent of the Chicago Kent College of Law. 582 00:33:54,960 --> 00:33:57,640 Speaker 2: And that's it for this edition of the Bloomberg Law Podcast. 583 00:33:57,960 --> 00:34:00,360 Speaker 2: Remember you can always get the latest legal news by 584 00:34:00,400 --> 00:34:04,200 Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify, 585 00:34:04,480 --> 00:34:08,319 Speaker 2: and at Bloomberg dot com, slash podcast, Slash Law. I'm 586 00:34:08,400 --> 00:34:10,839 Speaker 2: June Grosso and this is Bloomberg