WEBVTT - Trump Asserts he Can Pardon Himself, but Doesn't Need to

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. This morning, President

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<v Speaker 1>Trump tweeted that he has the absolute right to pardon himself,

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<v Speaker 1>but quote, why would I do that when I have

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<v Speaker 1>done nothing wrong, echoing the statements that his attorney Rudy

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<v Speaker 1>Giuliani made on Sunday on NBC's Meet the Press, The

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<v Speaker 1>President of the United States, um partnering himself would just

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<v Speaker 1>be unthinkable, and it would. It would It would lead

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<v Speaker 1>to probably an immediate impeachment. You know, you get your

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<v Speaker 1>house sent up. Beyond the tremendous, tremendous pressure. Uh. President

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<v Speaker 1>Trump has no need to do that. I didn't do

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<v Speaker 1>anything wrong. My guest is Stephen bin Hack, former federal

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<v Speaker 1>prosecutor and associate Independent Council in the White Wall Outer investigation.

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<v Speaker 1>Steve The question of whether a president has the absolute

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<v Speaker 1>right to pardon himself has never been litigated because no

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<v Speaker 1>president has ever asserted so brashly that laws and traditions

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<v Speaker 1>don't apply to him. Does Trump have the absolute right

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<v Speaker 1>to pardon himself? Well, first of all, thanks for having

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<v Speaker 1>me on, and I think the answer is yes. And

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<v Speaker 1>I think the way to resolve that question is to

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<v Speaker 1>go to the Constitution itself, which says that the president.

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<v Speaker 1>This is an article to section two, which deals with

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<v Speaker 1>the power of the President, says that he, meaning the President,

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<v Speaker 1>shall have power to grant reprieves and pardons for offenses

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<v Speaker 1>against the United States, except in cases of impeachment. What

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<v Speaker 1>that means is there's no limitation except in cases of impeachment.

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<v Speaker 1>And the Constitution is set up to have a separation

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<v Speaker 1>of powers. So for those who think, oh my gosh,

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<v Speaker 1>the president is going to pardon himself, the world is

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<v Speaker 1>going to fall apart because no one has any recourse,

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<v Speaker 1>that's not true. The president cannot change a case of impeachment.

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<v Speaker 1>And in section four of the same article, Article two,

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<v Speaker 1>it says the president, vice president of all civil officers

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<v Speaker 1>in the United States shall be removed from office on

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<v Speaker 1>impeachment foreign conviction of treason, bribery, or other high crescentimnist demeanors.

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<v Speaker 1>So the fact of the matter is, although it has

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<v Speaker 1>not been tacted. I think that the president could pardon himself,

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<v Speaker 1>but immediately he could not, or immediately impeachment and proceedings

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<v Speaker 1>would be uh would start and the Congress can impeach

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<v Speaker 1>and remove him, and he could do nothing to stop that.

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<v Speaker 1>So I think the Constitution has thought about the or

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<v Speaker 1>the Framers thought about this, and they wrote into the

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<v Speaker 1>Constitution what would happen. Do you see a pattern in

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<v Speaker 1>the pardons that Trump has issued already and bypassing the

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<v Speaker 1>pardon vetting procedures usually done by the Department of Justice. Yes,

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<v Speaker 1>I do see a pattern. First, remember, the Constitution is

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<v Speaker 1>different than the norms that we have in our government.

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<v Speaker 1>We have certain norms between the president and the and

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<v Speaker 1>his departments. One of those departments is the Department of Justice.

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<v Speaker 1>The Department of Justice has a pardon attorney who normally

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<v Speaker 1>takes care of pardons. There's rules about when you can

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<v Speaker 1>start the pardon process, typically five years after the sentence

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<v Speaker 1>is complete. There's a recommendation in the White House agrees

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<v Speaker 1>that is not a constitutional requirement. And the President appears

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<v Speaker 1>to be playing this particular situation as a political situation,

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<v Speaker 1>and that means that he will if he wants to

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<v Speaker 1>over ignore the norms and the regulations that are out

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<v Speaker 1>there no constitutional requirement that he that he followed them,

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<v Speaker 1>and he will have to live with the political consequences

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<v Speaker 1>of his um pardons. I think these pardons are set

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<v Speaker 1>up to gradually step us up to the point where

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<v Speaker 1>the President could um could pardon himself. That is you,

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<v Speaker 1>he's starting with a PIO and going, you know to

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<v Speaker 1>Mr Susa. You have a pattern of parts where the

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<v Speaker 1>President is saying these people were unfairly convicted. It was

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<v Speaker 1>unrighteous prosecutions, unfair prosecutors. And if he lays the groundwork there,

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<v Speaker 1>it's only a short step for him to say I'm

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<v Speaker 1>in the same boat. And we saw the tweet today

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<v Speaker 1>where the President says, I can absolutely pardon myself, but

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<v Speaker 1>I don't need to because I didn't do anything wrong. Again,

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<v Speaker 1>laying the groundwork to make the political play of making

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<v Speaker 1>a pardon for himself, which would force the Congress to act.

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<v Speaker 1>Let's turn to a private letter from Trump's legal team

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<v Speaker 1>to Muller that was written in January but printed in

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<v Speaker 1>The New York Times Friday. It's remarkably broad in asserting

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<v Speaker 1>an unlimited right to stop federal investigations and issue pardons,

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<v Speaker 1>and concludes that a president can't obstruct justice. What's your

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<v Speaker 1>reaction to the legal claims in that letter. Well, there's

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<v Speaker 1>a few different legal claims, and I have a different

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<v Speaker 1>reactions either to several of them. I think that the

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<v Speaker 1>president could try to stop this investigation by firing Mr Maller.

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<v Speaker 1>If he did that, uh and um, and he was successful,

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<v Speaker 1>I think then the Congress would have the right to

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<v Speaker 1>impeach and remove him. That is no, not really different

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<v Speaker 1>than the Saturday Night massacre that we saw under the

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<v Speaker 1>Nixon administration. With regard to obstruction of justice, I think

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<v Speaker 1>the president can obstruct justice in certain ways, but uh,

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<v Speaker 1>it is not obstruction of justice. And I mean by

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<v Speaker 1>obstruct justice, I'm talking about a criminal issue. The president

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<v Speaker 1>can make the crime of obstructing justice by destroying documents,

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<v Speaker 1>tampering with witnesses, bribing people. But I don't think that

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<v Speaker 1>firing an inferior officer in his administration would make constant,

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<v Speaker 1>would make the crime of of of obstruction of justice

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<v Speaker 1>because the power the president has the power to do that.

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<v Speaker 1>But for all the criminal obstruction of justice the president

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<v Speaker 1>might do, there's the remedy of an indictment, and for

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<v Speaker 1>any political obstruction of justice you have impeachment. So if

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<v Speaker 1>the president were to bribe a witness to not say

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<v Speaker 1>the truth, that would be a criminal act, subject to

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<v Speaker 1>criminal prosecution and of course impeachment. But if the president

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<v Speaker 1>just fired an inferior officer, then that would be subject,

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<v Speaker 1>in my opinion, only to uh an impeachment proceeding. All right,

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<v Speaker 1>and you have to rely on the Congress for that,

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<v Speaker 1>on the House of Representatives. Thanks so much for joining us. Steve.

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<v Speaker 1>That's Steve bin Hacky is a Miami attorney and a

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<v Speaker 1>former federal prosecutor and associate Independent Council in the Whitewater investigation.

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<v Speaker 1>In one of the most closely watched cases of the term,

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<v Speaker 1>the Supreme Court throughout of finding that a Colorado baker

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<v Speaker 1>illegally discriminated when he refused to make a cake for

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<v Speaker 1>the wedding of the same sex couple. The seven to

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<v Speaker 1>two decision was on narrow grounds and was written by

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<v Speaker 1>Justice Anthony Kennedy. Joining us is Bloomberg New Supreme Court

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<v Speaker 1>reporter Greg's store. Greg, it's the first really full scale

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<v Speaker 1>fight over gay rights since the Court legalized same sex marriage.

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<v Speaker 1>To what it bluntly did the justices in the majority punt.

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<v Speaker 1>They did punt to a large degree. June UH they

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<v Speaker 1>decided the case of Jack Phillips, and it's not clear

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<v Speaker 1>they decided any more than that. And it actually it

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<v Speaker 1>turns out there's even some disagreement as to exactly what

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<v Speaker 1>it means for Jack Phillips. Essentially, they said that when

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<v Speaker 1>considering his case, members of the Colorado Civil Rights Commission

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<v Speaker 1>held an animous towards religion and because of that, the

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<v Speaker 1>finding against him couldn't stand. And it seems that both

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<v Speaker 1>sides can claim victory or are claiming victory. The a

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<v Speaker 1>c l U, which argued for the gay couple, has

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<v Speaker 1>released a couple of press releases and they said the

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<v Speaker 1>court rejected the argument that businesses have a constitutional right

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<v Speaker 1>to discriminate against LGBTQ people. Is that did the court

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<v Speaker 1>actually do that? Well, they certainly didn't. Didn't hold that

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<v Speaker 1>there is a constitutional right to discriminate. There is some

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<v Speaker 1>language in here that is favorable to to advocates of

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<v Speaker 1>gay rights. The court does talk about how in role

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<v Speaker 1>UH anti discrimination laws can be enforced and businesses have

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<v Speaker 1>to comply with them. Now, the court did leave open

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<v Speaker 1>what's going to happen the next time some other business

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<v Speaker 1>has a similar claim claiming I have a speech right

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<v Speaker 1>or religious right not to take part in the same

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<v Speaker 1>sex marriage ceremony or to to lend any support to it. Um.

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<v Speaker 1>So that question is still on the table. But the

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<v Speaker 1>general principle that um that uh, most businesses at least

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<v Speaker 1>do have to comply with antidiscrimination laws, including protections on

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<v Speaker 1>the basis of sexual orientation. That is in fact the case.

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<v Speaker 1>So grig I remember that the oral arguments in this

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<v Speaker 1>case were very dynamic. They went extra time on them.

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<v Speaker 1>So do you think that what happened here is that

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<v Speaker 1>they couldn't get a five member majority on any of

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<v Speaker 1>the other big issues, or they just didn't want to

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<v Speaker 1>tackle the big issues. It's probably more the latter. These

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<v Speaker 1>were questions, these issues, the statements by the members of

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<v Speaker 1>the Civil Rights Commission suggesting that religion has been used

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<v Speaker 1>for some bad purposes over over history, those were issues

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<v Speaker 1>that Justice Kennedy raised during the arguments. He was clearly

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<v Speaker 1>very concerned about that. He clearly UH thought that there

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<v Speaker 1>was some bias against religion lurking among members of the

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<v Speaker 1>Colorado Civil Rights Commission. So Um, it's not. It doesn't

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<v Speaker 1>have the feel of something that um, you know that

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<v Speaker 1>this was their third choice is to decide this case.

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<v Speaker 1>That seemed like the way Justice Kennedy felt like the

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<v Speaker 1>case ought to be decided. So tell us what the

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<v Speaker 1>two justices in the descent. That was Justice Ruth Bader

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<v Speaker 1>Ginsburg wrote the descent, and she was joined by Justice

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<v Speaker 1>Sonia Sotomayor. Tell us what the descent said. So, so

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<v Speaker 1>it was a somewhat muted descent. Um. But what essentially

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<v Speaker 1>what you said it said was, um, look, these were

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<v Speaker 1>a couple of comments by members of a commission um,

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<v Speaker 1>at least one of which maybe both of which are

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<v Speaker 1>no longer on the commission. Uh. This is a case

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<v Speaker 1>that went through a lot of process and through an

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<v Speaker 1>administrative law judge, um, through uh the courts um, and

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<v Speaker 1>so uh she essentially said, it's hard to see how

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<v Speaker 1>that you know, any animus that might have existed among

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<v Speaker 1>you know, as demonstrated by a couple of comments, how

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<v Speaker 1>that should be allowed to override in this particular case

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<v Speaker 1>of this general principle that uh that that uh, gay

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<v Speaker 1>couples are entitled to be protected from discrimination under under

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<v Speaker 1>Colorado Civil rights laws. Could this have any significance or

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<v Speaker 1>point toward what may happen with the Trump travel ban,

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<v Speaker 1>where the allegation is that it was based on animus.

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<v Speaker 1>I don't want to read too much into this. I

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<v Speaker 1>think what you can definitely see in this case that

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<v Speaker 1>so there are seven justices in the majority, Justices Briar

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<v Speaker 1>and Kagan, who uh you tended me with the liberal

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<v Speaker 1>wing joined the majority a little bit of a consensus ruling. Um.

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<v Speaker 1>One can imagine that that sort of model may happen

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<v Speaker 1>again with the travel band very different issues. Remains to

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<v Speaker 1>be seen. Um. It's you know, hard to sort of

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<v Speaker 1>project too much from one case to the other, but

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<v Speaker 1>it's certainly at least a sign that, uh, in one case,

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<v Speaker 1>in this case, some members of the court were able

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<v Speaker 1>to bridge whatever differences they had. Well, the case have

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<v Speaker 1>any impact at all on states that have laws that

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<v Speaker 1>bar discrimination based on sexual orientation by establishments that do

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<v Speaker 1>business with the public. Or is it just that it

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<v Speaker 1>won't have any effect on anything at all? Well, it

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<v Speaker 1>will certainly be cited an awful lot because there is language,

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<v Speaker 1>as we were discussing before that that says that in general,

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<v Speaker 1>laws like that are enforceable against against private businesses, whether

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<v Speaker 1>it's despositive, whether it tells you what the answer is

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<v Speaker 1>when you get a case like this that remains to

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<v Speaker 1>be seen. There is another case I should say that

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<v Speaker 1>the Court could agree to take up in the next

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<v Speaker 1>couple of weeks and involves a florist in Washington State,

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<v Speaker 1>very similar things. She didn't want to provide flowers for

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<v Speaker 1>the same sex wedding, and so it's possible the Court

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<v Speaker 1>will will decide we're going to take up that case

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<v Speaker 1>and actually decide these big questions. So, Greg, did you

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<v Speaker 1>see you know, the language that Justice Kennedy has used

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<v Speaker 1>in the cases involving gay rights. Did you see that

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<v Speaker 1>in the opinion there was some of that. Uh, no question, Um,

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<v Speaker 1>let me, I'll find it here. But he talked about

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<v Speaker 1>the you know, the general right of gay people to

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<v Speaker 1>be put it, uh, not treated as social outcasts or

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<v Speaker 1>inferior in dignity and worth. Um. So he certainly reaffirmed

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<v Speaker 1>that notion that was part of his gay marriage ruling

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<v Speaker 1>from fifteen. At the same time, however, he said that

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<v Speaker 1>quotes of the religious and philosophical objections to gay marriage

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<v Speaker 1>are protective views and in some instances protected forms of expression.

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<v Speaker 1>So he was trying to say that both sides in

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<v Speaker 1>this debate, both gay people who are entitled to equality

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<v Speaker 1>in people who have a religious opposition, both are entitled

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<v Speaker 1>to respect. Well, we have a lot of other cases,

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<v Speaker 1>high profile coming up, and we'll see if we get

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<v Speaker 1>any blockbuster rulings with those. Thanks so much, Greg, That's

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<v Speaker 1>Bloomberg News, Supreme Court reporter of Gregg's Store. Thanks for

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<v Speaker 1>listening to the Bloomberg Law Podcast. You can subscribe and

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<v Speaker 1>listen to the show on Apple podcast, SoundCloud, and on

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<v Speaker 1>Bloomberg dot com slash podcast. I'm June Brosso. This is

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<v Speaker 1>Bloomberg