1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio. 2 00:00:06,640 --> 00:00:09,200 Speaker 1: Time is running out for the long line of people 3 00:00:09,400 --> 00:00:12,560 Speaker 1: jocking to get an eleventh hour pardon from President Trump, 4 00:00:12,840 --> 00:00:14,680 Speaker 1: and one of the names at the top of his 5 00:00:14,800 --> 00:00:18,079 Speaker 1: pardon list maybe his own. I'm not above the law. 6 00:00:18,160 --> 00:00:20,720 Speaker 1: I never want anybody to be above the law. But 7 00:00:21,040 --> 00:00:24,360 Speaker 1: the pardoners are a very positive thing for President. I 8 00:00:24,400 --> 00:00:26,960 Speaker 1: think you see the way I'm using them, and yes, 9 00:00:27,080 --> 00:00:30,440 Speaker 1: I do have an absolute right to pardon myself. According 10 00:00:30,480 --> 00:00:33,760 Speaker 1: to Bloomberg sources, Trump has prepared a sweeping list of 11 00:00:33,800 --> 00:00:36,360 Speaker 1: people he's hoping to pardon on his last full day 12 00:00:36,360 --> 00:00:40,600 Speaker 1: in office, including family members, senior White House officials, some 13 00:00:40,800 --> 00:00:45,400 Speaker 1: famous rappers, and perhaps himself. Although most legal experts say 14 00:00:45,440 --> 00:00:50,440 Speaker 1: a president cannot pardon himself, Trump's unpredictability, his willingness to 15 00:00:50,479 --> 00:00:53,920 Speaker 1: do favors for friends and to champion causes promoted by 16 00:00:53,920 --> 00:00:58,000 Speaker 1: conservative media has created a sort of lobbying bonanza for 17 00:00:58,120 --> 00:01:01,560 Speaker 1: all types of people joining me. Bloomberg Legal reporter David 18 00:01:01,640 --> 00:01:05,720 Speaker 1: Yaffy Bellany David. Historically, the pardon process is run out 19 00:01:05,720 --> 00:01:09,040 Speaker 1: of the pardon Attorney's office in the Jostice Department. Has 20 00:01:09,040 --> 00:01:13,119 Speaker 1: Trump completely cut the Pardon Office out of the process. 21 00:01:13,160 --> 00:01:16,920 Speaker 1: Not completely, but we're talking about a small handful of 22 00:01:17,120 --> 00:01:21,120 Speaker 1: cases out of the almost hundred pardons and communications that 23 00:01:21,280 --> 00:01:24,080 Speaker 1: Trump has issued. You know, in effect, he's doing his 24 00:01:24,120 --> 00:01:27,679 Speaker 1: own thing. The Justice Department process is still plugging along, 25 00:01:27,959 --> 00:01:30,800 Speaker 1: but it's sort of a sideshow compared to the kind 26 00:01:30,800 --> 00:01:33,800 Speaker 1: of lobbying bonanza focusing on the White House that's really 27 00:01:33,800 --> 00:01:37,280 Speaker 1: dictating who gets clemency this time around. So who's jockeying 28 00:01:37,400 --> 00:01:40,160 Speaker 1: for pardons from Trump? So it's a variety of people. 29 00:01:40,200 --> 00:01:44,000 Speaker 1: I mean, you've got kind of politically connected associates of Trump. 30 00:01:44,480 --> 00:01:47,000 Speaker 1: You've got people whose cases of the kind of a 31 00:01:47,040 --> 00:01:51,120 Speaker 1: cause celebt on the right, like Blackwater officials who were 32 00:01:51,160 --> 00:01:53,760 Speaker 1: pardoned as part of the latest round of clemency grounds. 33 00:01:53,840 --> 00:01:55,400 Speaker 1: And then you've also got sort of more run of 34 00:01:55,440 --> 00:01:58,600 Speaker 1: the mill white college prisoners who are trying to kind 35 00:01:58,640 --> 00:02:01,920 Speaker 1: of move the leaders of power in ways that help 36 00:02:02,000 --> 00:02:04,680 Speaker 1: him get the president's attention by you know, talking to 37 00:02:04,760 --> 00:02:09,320 Speaker 1: conservative media, getting influential lobbyists to advocate for them with 38 00:02:09,400 --> 00:02:12,200 Speaker 1: officials of the White House. That's basically the range of 39 00:02:12,200 --> 00:02:14,840 Speaker 1: people who are kind of jockeying. I mean, there's also 40 00:02:14,919 --> 00:02:18,720 Speaker 1: of course, talk that Trump could issue preemptive pardons to 41 00:02:19,160 --> 00:02:23,280 Speaker 1: family members like his daughter Ivaca or Southern law Jeric 42 00:02:23,320 --> 00:02:26,320 Speaker 1: Kushner to protect them from potential future charges, or even 43 00:02:26,320 --> 00:02:29,480 Speaker 1: to issue a self pardon that would shield him from 44 00:02:29,520 --> 00:02:32,960 Speaker 1: federal charges once he leaves office. It seems like the 45 00:02:33,120 --> 00:02:39,600 Speaker 1: pardon process is almost an industry, you know, pardon lawyers, lobbyists, 46 00:02:39,639 --> 00:02:42,880 Speaker 1: it is. I mean, there are lawyers whose main practice 47 00:02:43,000 --> 00:02:46,600 Speaker 1: is to help people navigate the clemency process. There's a 48 00:02:46,639 --> 00:02:48,880 Speaker 1: whole network of nonprofit groups, a lot of which do 49 00:02:48,919 --> 00:02:52,920 Speaker 1: really important work sort of exploring the cases of people 50 00:02:53,000 --> 00:02:56,720 Speaker 1: who have faced really severe sentences for kind of minor 51 00:02:56,800 --> 00:03:00,560 Speaker 1: drug crime and trying to use the clemency process as 52 00:03:00,600 --> 00:03:03,160 Speaker 1: a way to reduce the number of people who are 53 00:03:03,160 --> 00:03:06,720 Speaker 1: incarcerated for those sorts of minor non violent crimes. So 54 00:03:06,760 --> 00:03:10,200 Speaker 1: there's a whole kind of ecosystem around this, and usually 55 00:03:10,200 --> 00:03:13,080 Speaker 1: it's been directed at the Justice Department and you know, 56 00:03:13,160 --> 00:03:17,000 Speaker 1: producing compelling clemency petitions that kind of go through that 57 00:03:17,080 --> 00:03:20,440 Speaker 1: vetting process. But now there's there's been a shift where 58 00:03:21,000 --> 00:03:24,799 Speaker 1: these nonprofit groups and lobbyists and lawyers had to kind 59 00:03:24,800 --> 00:03:28,000 Speaker 1: of focus their energies on sort of less conventional ways 60 00:03:28,080 --> 00:03:32,320 Speaker 1: to get the White House's attention. You spoke to a lawyer, 61 00:03:32,360 --> 00:03:36,040 Speaker 1: Margaret Love, who said there's no doubt a great deal 62 00:03:36,080 --> 00:03:40,320 Speaker 1: of opportunity in the dysfunction. Explain what she meant. So, 63 00:03:40,360 --> 00:03:42,640 Speaker 1: what she's saying is that for people who have the 64 00:03:42,720 --> 00:03:45,840 Speaker 1: time and the resources to do the sort of lobbying 65 00:03:45,960 --> 00:03:50,960 Speaker 1: that I've been describing, to talk to conservative radio hosts, 66 00:03:51,000 --> 00:03:54,840 Speaker 1: to write petitions to Republican legislators and try to get 67 00:03:54,880 --> 00:03:57,040 Speaker 1: them to put in a good word with the White House. 68 00:03:57,360 --> 00:04:00,280 Speaker 1: People have the time and resources to do that be 69 00:04:00,360 --> 00:04:03,000 Speaker 1: in a good position to get clemency. Now, it's worth 70 00:04:03,000 --> 00:04:07,120 Speaker 1: pointing out that Trump has issued many fewer pardons and 71 00:04:07,160 --> 00:04:10,480 Speaker 1: communications than Obama did. It's not as if he's being 72 00:04:11,000 --> 00:04:14,920 Speaker 1: especially lenient. It's just that there's this new kind of 73 00:04:15,000 --> 00:04:19,599 Speaker 1: avenue to pursue clemency that hasn't existed in this quite 74 00:04:19,600 --> 00:04:23,080 Speaker 1: the same way before. That's now open to people with 75 00:04:23,160 --> 00:04:26,680 Speaker 1: political connections and the means to capitalize on those connections. 76 00:04:26,720 --> 00:04:29,520 Speaker 1: Just to give us some flavor of how these lobbying 77 00:04:29,640 --> 00:04:33,120 Speaker 1: campaigns go, tell us the story of Hershei Martin. Sure, So, 78 00:04:33,200 --> 00:04:35,240 Speaker 1: Hershie Martin is a twenty six year old in Brooklyn, 79 00:04:35,320 --> 00:04:38,039 Speaker 1: and he runs a kind of small home care agency. 80 00:04:38,120 --> 00:04:40,560 Speaker 1: And he's the nephew of a man named Sholem Weiss, 81 00:04:40,600 --> 00:04:43,240 Speaker 1: who is a New York businessman who was sentenced to 82 00:04:43,279 --> 00:04:45,599 Speaker 1: more than eight hundred years in prison in the early 83 00:04:45,600 --> 00:04:48,960 Speaker 1: two thousands for money laundering and other crimes related to 84 00:04:49,000 --> 00:04:51,960 Speaker 1: an insurance game. So he's a white collar prisoner with 85 00:04:52,040 --> 00:04:54,480 Speaker 1: a lot of resources, the ability to hire a lobbyists 86 00:04:54,480 --> 00:04:58,080 Speaker 1: on his behalf and Hershey, his nephew has also been 87 00:04:58,520 --> 00:05:02,240 Speaker 1: working pretty vigorously behind the scenes to try to secure 88 00:05:02,279 --> 00:05:04,880 Speaker 1: clemency for his uncle. So he's got a website with 89 00:05:05,120 --> 00:05:09,880 Speaker 1: endorsements from Alan Dershwitz. There's obviously a very politically connected 90 00:05:10,120 --> 00:05:13,720 Speaker 1: figure in Trump's circle. He's been reaching out to state 91 00:05:13,800 --> 00:05:15,760 Speaker 1: legislators to try to get them to write letters to 92 00:05:15,760 --> 00:05:18,920 Speaker 1: the White House. You know. He's been plastering Twitter with 93 00:05:19,040 --> 00:05:21,520 Speaker 1: kind of messages directed at Trump to try to get 94 00:05:21,560 --> 00:05:23,400 Speaker 1: his attention or to try to get some pick up 95 00:05:23,400 --> 00:05:26,640 Speaker 1: and conservative media that might cross Trump's desk. So it's 96 00:05:26,640 --> 00:05:29,839 Speaker 1: really kind of a full court press by White's family 97 00:05:30,320 --> 00:05:32,960 Speaker 1: to do anything they can that might improve his chances 98 00:05:32,960 --> 00:05:35,920 Speaker 1: of getting clemency. Now, of course, the chances that they 99 00:05:35,960 --> 00:05:41,480 Speaker 1: succeed are ultimately slim. But this avenue of lobbying exists 100 00:05:41,520 --> 00:05:45,040 Speaker 1: where it may not have existed under previous presidents. How 101 00:05:45,120 --> 00:05:48,000 Speaker 1: much does conservative media play a part because in some 102 00:05:48,120 --> 00:05:51,440 Speaker 1: of the cases, I remember the Navy seal, there was 103 00:05:51,720 --> 00:05:55,240 Speaker 1: a big push on conservative media for him to get 104 00:05:55,240 --> 00:05:58,440 Speaker 1: a pardon. Yeah. I mean, there's certainly examples of of 105 00:05:58,600 --> 00:06:03,280 Speaker 1: sort of politically sensitive cases that Trump has intervened in 106 00:06:04,000 --> 00:06:07,760 Speaker 1: that were kind of promoted by conservative media over over 107 00:06:07,800 --> 00:06:10,720 Speaker 1: the years. And you know, it's sometimes hard to draw 108 00:06:10,920 --> 00:06:13,960 Speaker 1: a direct line. You know, Trump's all this segment on 109 00:06:14,000 --> 00:06:16,320 Speaker 1: the news show and then immediately issued a pardon. I 110 00:06:16,320 --> 00:06:18,760 Speaker 1: don't know that we can draw that direct connection. But 111 00:06:19,400 --> 00:06:21,880 Speaker 1: the fact that these names are floating around in conservative 112 00:06:21,920 --> 00:06:23,640 Speaker 1: circles had a lot to do with the type of 113 00:06:23,720 --> 00:06:26,080 Speaker 1: type of media attention that some of these cases have gotten. 114 00:06:26,640 --> 00:06:31,320 Speaker 1: And you mentioned that Barack Obama tried a new pardon process. 115 00:06:31,920 --> 00:06:36,160 Speaker 1: That process was also criticized because of the many layers 116 00:06:36,200 --> 00:06:39,119 Speaker 1: of review. So it's important to remember here that Trump 117 00:06:39,160 --> 00:06:41,240 Speaker 1: hasn't come in and kind of up ended a hystem 118 00:06:41,279 --> 00:06:44,640 Speaker 1: that was like whirring along productively before he arrived. There 119 00:06:44,640 --> 00:06:47,280 Speaker 1: are all sorts of problems with the kind of traditional 120 00:06:47,320 --> 00:06:51,240 Speaker 1: Justice Department process for clemoncy. UM. There was a huge 121 00:06:51,480 --> 00:06:55,480 Speaker 1: backlog of thousands of clements petitions that hadn't been reviewed 122 00:06:55,520 --> 00:06:58,719 Speaker 1: before Trump came into office, and that backlog has has grown, 123 00:06:58,720 --> 00:07:03,400 Speaker 1: but it existed before UM. The the Obama administration established 124 00:07:03,440 --> 00:07:06,719 Speaker 1: something called the Committy Initiative UM. The goal of the 125 00:07:06,760 --> 00:07:10,080 Speaker 1: effort was to grant commutations to as many as ten 126 00:07:10,520 --> 00:07:14,080 Speaker 1: federal inmates, mostly people who had committed nonviolent drug crime, 127 00:07:14,320 --> 00:07:17,920 Speaker 1: and to reduce the incarcerated population through this kind of 128 00:07:18,000 --> 00:07:22,920 Speaker 1: mass effort. But as the ny U report documents, it 129 00:07:22,960 --> 00:07:26,720 Speaker 1: was hindered by bureaucracy. Basically, you know, there would be 130 00:07:26,800 --> 00:07:29,600 Speaker 1: six or seven levels of review, both within the Justice 131 00:07:29,640 --> 00:07:33,440 Speaker 1: Department and at the White House. The Pardon Attorney under Obama, 132 00:07:33,480 --> 00:07:38,280 Speaker 1: Deborah laugh actually resigned in protests because recommendations from her 133 00:07:38,360 --> 00:07:41,960 Speaker 1: office were being blocked by the Deputy Attorney General before 134 00:07:41,960 --> 00:07:44,960 Speaker 1: they ever reached the White House. And what we ended 135 00:07:45,040 --> 00:07:48,520 Speaker 1: up with was around two thousand commutations, which in some 136 00:07:48,600 --> 00:07:51,440 Speaker 1: ways was a big triumph. It was a huge number 137 00:07:51,480 --> 00:07:54,400 Speaker 1: that kind of doffed, you know, previous totals under past president. 138 00:07:54,760 --> 00:07:56,480 Speaker 1: But it was well short of that kind of ten 139 00:07:56,520 --> 00:08:00,160 Speaker 1: thousand goal, and a lot of criminal justice reform advocates 140 00:08:00,160 --> 00:08:04,280 Speaker 1: that ultimately the process was was a disappointment. Is there 141 00:08:04,320 --> 00:08:07,480 Speaker 1: any sort of model for what they would see as 142 00:08:07,640 --> 00:08:11,960 Speaker 1: a fair process. There's actually a lot of interesting disagreement 143 00:08:12,120 --> 00:08:17,160 Speaker 1: among reform advocates about what an improved pardon process would 144 00:08:17,200 --> 00:08:21,200 Speaker 1: would look like. Ironically, some people think that a system 145 00:08:21,240 --> 00:08:24,440 Speaker 1: not that different from what Trump has instituted might be 146 00:08:24,560 --> 00:08:27,560 Speaker 1: the way to go. That is, a some kind of 147 00:08:27,600 --> 00:08:32,760 Speaker 1: commission that exists outside the Justice Department to evaluate these petitions, 148 00:08:32,840 --> 00:08:36,080 Speaker 1: maybe even an internal Waite House group that would that 149 00:08:36,080 --> 00:08:40,199 Speaker 1: would evaluate coononity petitions. Now, those reform advocates want this 150 00:08:40,320 --> 00:08:42,720 Speaker 1: to be a kind of standard process with criteria rather 151 00:08:42,840 --> 00:08:46,960 Speaker 1: than just an opportunity for people to aggressively lobby the president. UM. 152 00:08:47,240 --> 00:08:51,480 Speaker 1: But structurally that idea actually isn't too far afield from 153 00:08:51,520 --> 00:08:54,280 Speaker 1: what Trump has been doing. Um. The other the other 154 00:08:54,320 --> 00:08:57,280 Speaker 1: proposal that that's gotten some traction in which especially former 155 00:08:57,679 --> 00:09:02,680 Speaker 1: pardon pardon attorneys are behind, is simply to empower the 156 00:09:02,720 --> 00:09:05,520 Speaker 1: Office of the Pardon Attorney within the Justice Department so 157 00:09:05,520 --> 00:09:08,240 Speaker 1: that it can make clemency recommendations directly to the White 158 00:09:08,240 --> 00:09:10,480 Speaker 1: House and doesn't have to go through that layer of 159 00:09:10,480 --> 00:09:13,280 Speaker 1: review by higher ups in the Justice Department, which can 160 00:09:13,320 --> 00:09:16,440 Speaker 1: slow things down and also lead to kind of recommendations 161 00:09:16,480 --> 00:09:18,960 Speaker 1: that have been vetted by the Partment attorney getting blocked 162 00:09:19,000 --> 00:09:22,280 Speaker 1: for for whatever reason. So that idea is more just 163 00:09:22,600 --> 00:09:25,960 Speaker 1: removed this layer of bureaucracy that it slowed the process 164 00:09:25,960 --> 00:09:29,840 Speaker 1: of the path. Harvard law professor Jack Goldsmith has studied 165 00:09:29,840 --> 00:09:34,480 Speaker 1: Trump's pardons and found that almost six percent had some 166 00:09:34,640 --> 00:09:39,240 Speaker 1: personal connection or political advantage. How unusual is that because 167 00:09:39,280 --> 00:09:42,080 Speaker 1: we know that in the past many presidents have made 168 00:09:42,080 --> 00:09:45,679 Speaker 1: these kinds of pardons, for example, President Bill Clinton and 169 00:09:45,720 --> 00:09:50,680 Speaker 1: financier Mark Rich and President George H. W. Bush and 170 00:09:50,679 --> 00:09:55,439 Speaker 1: the Iran contrapartons. I don't know of similarly comprehensive studies 171 00:09:55,480 --> 00:09:59,599 Speaker 1: that have been done for past administrations, partly because the 172 00:10:00,000 --> 00:10:03,480 Speaker 1: because you're describing, like Mark Rich, were sort of aberrations 173 00:10:03,600 --> 00:10:07,000 Speaker 1: rather than kind of examples of how the administration was 174 00:10:07,040 --> 00:10:10,280 Speaker 1: generally doing things on the clemency front. With Trump, there's 175 00:10:10,320 --> 00:10:13,920 Speaker 1: been such kind of rampant abusive the process. A lot 176 00:10:13,960 --> 00:10:16,640 Speaker 1: of people would argue that that kind of necessitates the 177 00:10:16,640 --> 00:10:20,160 Speaker 1: type of study and oversight that Goldsmith and others have 178 00:10:20,240 --> 00:10:23,040 Speaker 1: directed that the pardon process under Trump certainly, the sense 179 00:10:23,120 --> 00:10:25,440 Speaker 1: I have is that, yes, there have been cases in 180 00:10:25,480 --> 00:10:29,679 Speaker 1: the past where people successfully lobbied to get pardons or commutations, 181 00:10:29,880 --> 00:10:32,840 Speaker 1: or where a president sort of did a favor for 182 00:10:32,920 --> 00:10:36,080 Speaker 1: a friend, and there's nothing to prevent that legally, But 183 00:10:36,200 --> 00:10:39,360 Speaker 1: those were the exception rather than the rule, and under 184 00:10:39,360 --> 00:10:42,440 Speaker 1: Trump it's the rule now. According to Bloomberg's sources, the 185 00:10:42,480 --> 00:10:46,160 Speaker 1: president's daughter of Anka Trump, her husband Jared Kushner, and 186 00:10:46,240 --> 00:10:51,520 Speaker 1: his personal attorney Rudy Giuliani are under consideration for preemptive pardons, 187 00:10:51,559 --> 00:10:55,000 Speaker 1: as are several top White House officials, including Chief of 188 00:10:55,040 --> 00:10:59,160 Speaker 1: Staff Mark Meadows and senior adviser Stephen Miller. Is there 189 00:10:59,200 --> 00:11:02,360 Speaker 1: any problem with issuing a pardon when you don't know 190 00:11:02,400 --> 00:11:05,400 Speaker 1: what the charge might be. There's a whole legal debate 191 00:11:05,400 --> 00:11:08,360 Speaker 1: about how specific a pardon has to be for it 192 00:11:08,440 --> 00:11:12,000 Speaker 1: to protect somebody. I mean, are you allowed to say, 193 00:11:12,160 --> 00:11:14,520 Speaker 1: you know, any crime that this person is ever charged 194 00:11:14,559 --> 00:11:17,360 Speaker 1: with is invalid. You know, you can't quite do that. 195 00:11:17,600 --> 00:11:20,960 Speaker 1: You can't protect somebody from being charged for something that 196 00:11:21,000 --> 00:11:23,199 Speaker 1: they might do in the future. But in the past 197 00:11:23,240 --> 00:11:28,000 Speaker 1: presidence have written fairly broadly worded pardons protecting people from 198 00:11:28,480 --> 00:11:30,800 Speaker 1: charges for things that they might have done over a 199 00:11:30,800 --> 00:11:33,000 Speaker 1: long period of time. The most famous example is for 200 00:11:33,160 --> 00:11:35,960 Speaker 1: its pardon of Nixon, which was a preemptive pardon because 201 00:11:36,040 --> 00:11:38,680 Speaker 1: Nixon hasn't been charged with anything, and which was fairly 202 00:11:38,720 --> 00:11:42,800 Speaker 1: broadly worded to cover any crimes that he may have committed. Well, President, 203 00:11:43,200 --> 00:11:46,200 Speaker 1: that pardon was never challenged, you know, Nixon was never 204 00:11:46,280 --> 00:11:50,520 Speaker 1: charged with anything, so the legality of a preemptive pardon 205 00:11:50,600 --> 00:11:53,640 Speaker 1: hasn't actually been tested in the court. In theory, Trump 206 00:11:53,720 --> 00:11:56,559 Speaker 1: kud issue a preemptive pardon, you know, protecting Jared Kushner, 207 00:11:56,720 --> 00:12:00,120 Speaker 1: and federal prosecutors could decide to charge him anyway, and 208 00:12:00,160 --> 00:12:02,600 Speaker 1: then you'd get into a situation where the courts would 209 00:12:02,600 --> 00:12:04,360 Speaker 1: have to weigh in on the validity of the pardon. 210 00:12:04,559 --> 00:12:07,679 Speaker 1: And obviously a lot would depend on the particular circumstances 211 00:12:07,679 --> 00:12:09,920 Speaker 1: of the case, the nature of the charges, how specific 212 00:12:09,920 --> 00:12:11,800 Speaker 1: the language and the pardon was, But you might also 213 00:12:11,840 --> 00:12:14,600 Speaker 1: get a court kind of way on this concept of 214 00:12:14,600 --> 00:12:18,120 Speaker 1: a preemptive pardon. That's one way this could potentially play out. 215 00:12:18,600 --> 00:12:22,240 Speaker 1: But more likely is that federal prosecutors would probably not 216 00:12:22,480 --> 00:12:26,760 Speaker 1: want to challenge a preemptive pardon of someone in the 217 00:12:26,800 --> 00:12:30,120 Speaker 1: president's family, just because it would be legally complex, the 218 00:12:30,200 --> 00:12:33,000 Speaker 1: chances of success would be pretty slim. In the decades 219 00:12:33,000 --> 00:12:35,640 Speaker 1: since Nixon was pardoned, it's basically become a kind of 220 00:12:35,679 --> 00:12:39,560 Speaker 1: standard understanding that this type of preemptive partners possible. Not 221 00:12:39,720 --> 00:12:44,360 Speaker 1: so for presidential self pardon. Not so presidential self pardon. 222 00:12:44,480 --> 00:12:48,880 Speaker 1: That would be a truly unprecedented action by the president. 223 00:12:48,920 --> 00:12:50,839 Speaker 1: And again, there are different schools of thought in the 224 00:12:50,920 --> 00:12:54,400 Speaker 1: legal community about whether it's something the Constitution gives the 225 00:12:54,440 --> 00:12:57,240 Speaker 1: president the ability to do. There's nothing explicit in the 226 00:12:57,280 --> 00:13:00,320 Speaker 1: Constitution that says you can't do that. Various arts have 227 00:13:00,440 --> 00:13:03,319 Speaker 1: latched on to the wording of different parts of the 228 00:13:03,360 --> 00:13:05,920 Speaker 1: Constitution to argue one way or the other, yes it's allowed, 229 00:13:06,000 --> 00:13:07,800 Speaker 1: or no, it is not allowed. But the only way 230 00:13:07,800 --> 00:13:10,960 Speaker 1: this would actually get tested is if Trump pardoned himself 231 00:13:11,200 --> 00:13:14,559 Speaker 1: and then federal prosecutors charged him with the crime that 232 00:13:14,679 --> 00:13:17,040 Speaker 1: appeared to be covered by the pardon, and he invoked 233 00:13:17,080 --> 00:13:19,520 Speaker 1: the pardon in his defense, and then the courts would 234 00:13:19,559 --> 00:13:22,160 Speaker 1: have to decide. It would inevitably go all the way 235 00:13:22,200 --> 00:13:24,840 Speaker 1: to the Supreme Court, and then we would get some 236 00:13:24,880 --> 00:13:27,959 Speaker 1: sort of answer about whether the president can actually pardon himself. 237 00:13:28,000 --> 00:13:30,640 Speaker 1: I think that's pretty unlikely. It's not clear that Trump 238 00:13:30,679 --> 00:13:33,240 Speaker 1: will do a self pardon, and if he does, I 239 00:13:33,240 --> 00:13:37,280 Speaker 1: think it's fairly unlikely that he gets charged federally. So 240 00:13:37,800 --> 00:13:40,840 Speaker 1: in all likelihood, we probably won't know the answer to 241 00:13:40,920 --> 00:13:44,760 Speaker 1: that question anytime soon of whether a presidential self pardon 242 00:13:44,880 --> 00:13:47,560 Speaker 1: is within legal bound. David, do we know how many 243 00:13:47,760 --> 00:13:51,240 Speaker 1: petitions are pending for pardon now that he has to 244 00:13:51,320 --> 00:13:55,640 Speaker 1: choose from. Yeah, they're about fourteen thousand petitions pending. But 245 00:13:55,920 --> 00:13:58,360 Speaker 1: you know, these aren't petitions that Trump is likely to 246 00:13:58,440 --> 00:14:01,120 Speaker 1: just kind of wait into the cool and pick one out. 247 00:14:01,160 --> 00:14:03,000 Speaker 1: I mean, these are petitions that have been submitted to 248 00:14:03,040 --> 00:14:06,680 Speaker 1: justice departments that the Pardon Office hasn't yet reviewed. In theory, 249 00:14:06,720 --> 00:14:09,680 Speaker 1: Trump could kind of pluck one out, but most likely, 250 00:14:09,880 --> 00:14:12,680 Speaker 1: you know, these people, many of whom have compelling cases 251 00:14:12,720 --> 00:14:15,079 Speaker 1: for why they deserve clemency, are not going to get 252 00:14:15,080 --> 00:14:16,880 Speaker 1: a hearing and the president is never going to know 253 00:14:16,920 --> 00:14:18,600 Speaker 1: about them. And that's one of the tragedies of this 254 00:14:18,679 --> 00:14:21,440 Speaker 1: process in the way it's been distorted under Trump. Like, yes, 255 00:14:21,480 --> 00:14:23,400 Speaker 1: you have certain white college prisoners who now have like 256 00:14:23,440 --> 00:14:26,480 Speaker 1: new opportunities and avenues to kind of lobby for clemency, 257 00:14:26,560 --> 00:14:29,280 Speaker 1: But a huge number of people who don't have money, 258 00:14:29,360 --> 00:14:33,000 Speaker 1: who aren't politically connected, now have basically no way to 259 00:14:33,000 --> 00:14:36,240 Speaker 1: get clemency through this this process because the Justice Department's 260 00:14:36,240 --> 00:14:40,760 Speaker 1: been sidelined. Thanks David, that's Bloomberg Legal reporter David Yaffie 261 00:14:40,760 --> 00:14:46,920 Speaker 1: Bellny For Attorney General of the United States, I nominated 262 00:14:46,960 --> 00:14:52,400 Speaker 1: a man of impeccable integrity, Judge Merrick Garland, on the 263 00:14:52,440 --> 00:14:56,320 Speaker 1: most Respected Jurists of our time. President elect Joe Biden 264 00:14:56,400 --> 00:14:59,160 Speaker 1: named Judge Merrick Garland to be the nation's top law 265 00:14:59,240 --> 00:15:02,320 Speaker 1: enforcement off SIR at a critical time in our history, 266 00:15:02,840 --> 00:15:05,600 Speaker 1: after the seat of the nation's democracy has been attacked 267 00:15:05,600 --> 00:15:10,240 Speaker 1: by rioters, after a year of protests against systemic racism, 268 00:15:10,280 --> 00:15:13,880 Speaker 1: and after four years of the politicization of the Justice Department, 269 00:15:14,240 --> 00:15:19,000 Speaker 1: Garland pledged to restore independence to the Justice Department. The 270 00:15:19,160 --> 00:15:23,240 Speaker 1: rule of law is not just some lawyers turner phrase. 271 00:15:24,560 --> 00:15:28,840 Speaker 1: It is the very foundation of our democracy. Garland has 272 00:15:28,880 --> 00:15:31,560 Speaker 1: been a highly respected judge on the d C Circuit 273 00:15:31,600 --> 00:15:34,520 Speaker 1: Court of Appeals for more than two decades. The Judge 274 00:15:34,520 --> 00:15:37,440 Speaker 1: of the Republicans refused a hearing on his nomination to 275 00:15:37,480 --> 00:15:40,680 Speaker 1: the Supreme Court. Joining me is David Posen, a professor 276 00:15:40,760 --> 00:15:44,760 Speaker 1: Columbia Law School who clerked for Garland. So is Garland 277 00:15:44,760 --> 00:15:47,760 Speaker 1: a good choice for Attorney General? I think he's an 278 00:15:47,800 --> 00:15:51,560 Speaker 1: excellent choice. If anyone is going to restore public confidence 279 00:15:51,600 --> 00:15:55,000 Speaker 1: in the institution, I would think would be someone respected 280 00:15:55,040 --> 00:15:57,840 Speaker 1: across the stile, like Judge Garland, who's also had a 281 00:15:57,840 --> 00:16:00,840 Speaker 1: long history with department, and it's well known and revered 282 00:16:00,880 --> 00:16:04,160 Speaker 1: by many in the building. He has a reputation as 283 00:16:04,200 --> 00:16:08,400 Speaker 1: a centrist, and some progressive say his decisions leaned in 284 00:16:08,520 --> 00:16:11,920 Speaker 1: favor of the government and law enforcement. Is this the 285 00:16:11,960 --> 00:16:16,960 Speaker 1: time for a centrist as Attorney General? I think his centrism, 286 00:16:17,000 --> 00:16:20,640 Speaker 1: to some extent, was a function of his job as 287 00:16:20,680 --> 00:16:24,080 Speaker 1: a judge. As a judge, he was a minimalist. He 288 00:16:24,160 --> 00:16:27,720 Speaker 1: really didn't want to issue broad, aggressive rulings, and he 289 00:16:27,800 --> 00:16:31,240 Speaker 1: saw it as his job as a judge to stick 290 00:16:31,280 --> 00:16:34,120 Speaker 1: to the letter of the law closely. In the Justice Department, 291 00:16:34,560 --> 00:16:37,560 Speaker 1: I think he will likewise bring the same integrity and 292 00:16:37,880 --> 00:16:42,040 Speaker 1: legal care. But the key statutes that he's charged with 293 00:16:42,200 --> 00:16:46,880 Speaker 1: enforcing really envisioned a robust Justice department role that is 294 00:16:46,920 --> 00:16:49,760 Speaker 1: withered in recent years. So I'm thinking of various like 295 00:16:49,880 --> 00:16:53,040 Speaker 1: civil rights and voting rights, where enforcement has been negligible. 296 00:16:53,200 --> 00:16:56,960 Speaker 1: I think it's entirely consistent with being a by the 297 00:16:57,000 --> 00:17:02,040 Speaker 1: books legalist to aggressively enforce laws in those areas and thereby, 298 00:17:02,080 --> 00:17:04,720 Speaker 1: you know, kind of reclaim some of the progressive ambitions 299 00:17:04,760 --> 00:17:09,320 Speaker 1: of the department. Although he was a careful and minimalist judge, 300 00:17:09,640 --> 00:17:12,639 Speaker 1: I don't think Dutch Grant's commitment to voting rights or 301 00:17:12,720 --> 00:17:16,600 Speaker 1: civil rights has ever been in doubt, and as Attorney General, 302 00:17:16,720 --> 00:17:20,359 Speaker 1: he will be charged with enforcing quite broad statutes fill 303 00:17:20,400 --> 00:17:22,400 Speaker 1: in the books from the civil rights era in both 304 00:17:22,440 --> 00:17:25,040 Speaker 1: of those areas, and I think it will therefore be 305 00:17:25,240 --> 00:17:29,120 Speaker 1: entirely consistent with his commitment to rule of law and 306 00:17:29,400 --> 00:17:32,560 Speaker 1: kind of careful legal craft to be a old attorney 307 00:17:32,560 --> 00:17:35,159 Speaker 1: general in the civil rights and voting rights areas. The 308 00:17:35,280 --> 00:17:38,439 Speaker 1: Justice Department, as you refer to, has been under a 309 00:17:38,560 --> 00:17:41,959 Speaker 1: kind of assault from within the last four years and 310 00:17:42,000 --> 00:17:45,840 Speaker 1: morale is low. Can he repair the damage? I'm sure 311 00:17:45,840 --> 00:17:48,760 Speaker 1: there are many small moves to be made within different 312 00:17:48,840 --> 00:17:51,280 Speaker 1: units of the o J to right the ship, but 313 00:17:51,440 --> 00:17:53,760 Speaker 1: at a high level of generality, I think he can 314 00:17:53,840 --> 00:17:57,640 Speaker 1: lead by example. He's very committed to process norms. He's 315 00:17:57,680 --> 00:18:01,120 Speaker 1: a real institutionalist and he knows is deeply the long 316 00:18:01,160 --> 00:18:05,480 Speaker 1: standing norms of the Justice Department, including ones involving installation 317 00:18:05,800 --> 00:18:09,080 Speaker 1: from White House control to once about how to conduct 318 00:18:09,080 --> 00:18:12,800 Speaker 1: the proper investigation, to norms about how to pursue enforcement 319 00:18:12,880 --> 00:18:16,520 Speaker 1: of voting rights laws. In short, Attorney General Garland will 320 00:18:16,640 --> 00:18:20,840 Speaker 1: be a consummate professional and institutionalist, and the way he 321 00:18:20,880 --> 00:18:23,520 Speaker 1: pursues everything he does that d o J. He will 322 00:18:23,560 --> 00:18:26,320 Speaker 1: see it as a key part of his task rebuilding 323 00:18:26,600 --> 00:18:29,120 Speaker 1: not just the morale, but the norms of the institution 324 00:18:29,440 --> 00:18:33,160 Speaker 1: that have long structured how the Justice Department understands itself, 325 00:18:33,520 --> 00:18:37,920 Speaker 1: ensures its independence and the integrity and professionalism of its work. 326 00:18:38,240 --> 00:18:41,840 Speaker 1: And he embodied those kinds of legal processities as a 327 00:18:41,920 --> 00:18:44,080 Speaker 1: judge and will do the same as a journey general. 328 00:18:44,160 --> 00:18:46,280 Speaker 1: A lot of that work won't necessarily be visible to 329 00:18:46,320 --> 00:18:49,240 Speaker 1: the outside world, which will focus on enforcement actions. He 330 00:18:49,320 --> 00:18:52,640 Speaker 1: brings lawsuits in which the just Department plays a role, 331 00:18:52,920 --> 00:18:55,359 Speaker 1: but I expect him to be doing crucial work inside 332 00:18:55,400 --> 00:18:57,520 Speaker 1: the building in ways that will just make the department 333 00:18:57,520 --> 00:19:00,760 Speaker 1: more effective in the future. One of the big questions 334 00:19:01,160 --> 00:19:05,160 Speaker 1: is whether or not the Justice Department will move forward 335 00:19:05,280 --> 00:19:10,840 Speaker 1: with prosecuting President Trump. In light of the riots yesterday, 336 00:19:10,920 --> 00:19:16,399 Speaker 1: that question seems even more important to answer. I really 337 00:19:16,440 --> 00:19:19,399 Speaker 1: don't know and can't predict. All I can say is 338 00:19:19,440 --> 00:19:23,199 Speaker 1: that Judge Garland cut his teeth as a prosecutor, in 339 00:19:23,320 --> 00:19:28,119 Speaker 1: part in the area of domestic terrorism, which is sadly relevant. Again, 340 00:19:28,480 --> 00:19:31,760 Speaker 1: he famously led the investigation of the Oklahoma City bombing 341 00:19:32,040 --> 00:19:35,600 Speaker 1: led to Timothy mcvey's arresting conviction, so he does have 342 00:19:35,680 --> 00:19:38,600 Speaker 1: experience in that area to the extent it's relevant here. 343 00:19:38,760 --> 00:19:41,320 Speaker 1: As for President Trump himself, all I can say with 344 00:19:41,400 --> 00:19:44,760 Speaker 1: confidence is that as Attorney General, Judge Garland would want 345 00:19:44,760 --> 00:19:47,800 Speaker 1: to make sure that he did everything by the book, 346 00:19:48,320 --> 00:19:50,879 Speaker 1: and so he would not want to do anything that 347 00:19:50,920 --> 00:19:54,480 Speaker 1: could be perceived as political in the way he decides 348 00:19:54,560 --> 00:19:57,840 Speaker 1: whether to and how to investigate President Trump, who would 349 00:19:57,840 --> 00:20:00,880 Speaker 1: be assigned to that work, how they would be insulated 350 00:20:00,880 --> 00:20:03,560 Speaker 1: from White House control. He would be, you know, the 351 00:20:03,640 --> 00:20:07,240 Speaker 1: consummate nonpartisan professional. That's all I can say with confidence. 352 00:20:07,760 --> 00:20:10,959 Speaker 1: There's been some speculation that one just one of the 353 00:20:11,000 --> 00:20:15,000 Speaker 1: reasons why Biden may have chosen him is because of 354 00:20:15,040 --> 00:20:20,399 Speaker 1: the pending Hunter Biden investigation and wanting a non political 355 00:20:20,520 --> 00:20:23,399 Speaker 1: type to be handling that that could be. And I 356 00:20:23,720 --> 00:20:27,600 Speaker 1: think I think more broadly, Um, the Justice Department has 357 00:20:27,680 --> 00:20:34,440 Speaker 1: been thoroughly politicized and delegitimated in recent years. And UM, 358 00:20:34,480 --> 00:20:39,760 Speaker 1: it's not just any specific investigation, but the entire project 359 00:20:40,080 --> 00:20:44,280 Speaker 1: of restoring public trust in in the Justice Department, which 360 00:20:44,320 --> 00:20:47,520 Speaker 1: is which is going to be crucial, um for the 361 00:20:47,560 --> 00:20:51,000 Speaker 1: country's well being on all sorts of matters, depends on 362 00:20:51,080 --> 00:20:55,560 Speaker 1: there being a leader who is not you know, fairly 363 00:20:56,440 --> 00:21:01,679 Speaker 1: attacked on partisan grounds. Whatever one could say Judge Garland, Um, 364 00:21:01,720 --> 00:21:04,680 Speaker 1: it cannot be said that he's ever operated in a 365 00:21:05,000 --> 00:21:08,679 Speaker 1: partisan manner, even on the DC Circuit, a highly contentious 366 00:21:08,840 --> 00:21:13,040 Speaker 1: appellate court. Um. He had the utmost respect from Chief 367 00:21:13,080 --> 00:21:18,359 Speaker 1: Justice Roberts, Justice Kavanaugh other conservative colleagues throughout his time there. 368 00:21:19,000 --> 00:21:23,400 Speaker 1: So if the Justice Department doesn't recover from the hit 369 00:21:23,480 --> 00:21:27,320 Speaker 1: it's taken to its reputation over these last four years, 370 00:21:27,800 --> 00:21:29,960 Speaker 1: it will not be because of a journey General Garland. 371 00:21:30,119 --> 00:21:33,880 Speaker 1: If anyone has a chance of restoring integrity to that 372 00:21:34,200 --> 00:21:38,000 Speaker 1: you know, once great institution in a hyperpolarized time, it 373 00:21:38,080 --> 00:21:41,480 Speaker 1: would be Garland. And a personal note you clerked for him, 374 00:21:41,480 --> 00:21:43,359 Speaker 1: what was it like to work with him. He was 375 00:21:43,400 --> 00:21:46,880 Speaker 1: a wonderful boss, very self sufficient as a judge. One 376 00:21:46,920 --> 00:21:49,399 Speaker 1: had the sense he didn't really need clerks, but he 377 00:21:49,480 --> 00:21:52,880 Speaker 1: was exquisitely careful in his approach to every case. And 378 00:21:53,320 --> 00:21:56,000 Speaker 1: just two little points that may speak to how be 379 00:21:56,119 --> 00:21:59,280 Speaker 1: as Attorney General. One is that even though we had 380 00:21:59,480 --> 00:22:02,639 Speaker 1: a small chamber, is just four clerks, and everything that 381 00:22:02,720 --> 00:22:06,760 Speaker 1: was said in chambers was confidential among us. Still, Judge 382 00:22:06,760 --> 00:22:09,160 Speaker 1: Garland had a rule that you could not talk politics 383 00:22:09,200 --> 00:22:11,480 Speaker 1: around him. He just did not want to be in 384 00:22:11,520 --> 00:22:13,679 Speaker 1: any way a part of something that could be perceived 385 00:22:13,720 --> 00:22:16,480 Speaker 1: as political, So that he was doing that in chambers 386 00:22:16,680 --> 00:22:19,000 Speaker 1: they I think, really speaks to a kind of staunch 387 00:22:19,200 --> 00:22:22,040 Speaker 1: legalist he is. And second, I had the sense that 388 00:22:22,200 --> 00:22:25,000 Speaker 1: even though he was a great judge and very dedicated 389 00:22:25,080 --> 00:22:27,639 Speaker 1: to that position, his heart was really still at d 390 00:22:27,720 --> 00:22:30,240 Speaker 1: o J. He really lit up when asked about his 391 00:22:30,320 --> 00:22:33,600 Speaker 1: time at the Justice Department. He spoke with great reverence 392 00:22:33,640 --> 00:22:36,720 Speaker 1: and real warmth for his former colleagues there and the 393 00:22:36,760 --> 00:22:39,600 Speaker 1: work they did together. So I'm not surprised and I'm 394 00:22:39,680 --> 00:22:41,280 Speaker 1: quite happy for him that at this stage in his 395 00:22:41,320 --> 00:22:43,359 Speaker 1: career he's going to have the chance to be Attorney General, 396 00:22:43,440 --> 00:22:46,080 Speaker 1: because I always had the sense that his true professional 397 00:22:46,160 --> 00:22:49,080 Speaker 1: passion lay at the Just Department. Thanks for being on 398 00:22:49,080 --> 00:22:52,280 Speaker 1: the show, David. That's David Posen, a professor at Columbia 399 00:22:52,359 --> 00:22:54,720 Speaker 1: Law School. And that's it for this edition of the 400 00:22:54,720 --> 00:22:57,920 Speaker 1: bloom Berg Lawn Podcast. I'm June Grosso. Thanks so much 401 00:22:57,960 --> 00:23:00,399 Speaker 1: for listening, and remember you can oh Lea's get the 402 00:23:00,480 --> 00:23:03,560 Speaker 1: latest legal news on our Bloomberg Law podcast. You can 403 00:23:03,600 --> 00:23:07,080 Speaker 1: find them on Apple Podcasts, Spotify, and wherever you get 404 00:23:07,119 --> 00:23:10,600 Speaker 1: your favorite podcasts. And please listen to The Bloomberg Lawn 405 00:23:10,640 --> 00:23:14,280 Speaker 1: Show every weeknight at ten pm Eastern on Bloomberg Radio