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Welcome back.
We are talking about presidents and pardon power with Samuel Morrison.
He's a former staff attorney for the Department of Justice in the office of the pardon attorney.
Sam, welcome to the program.
Thank you.
Thanks for having me.
So what was your reaction to President Biden's pardoning of his son, Hunter?
Well, I actually wasn't surprised at all.
I know he said he wouldn't do it, but I expected that he would, just because the impulse of a father to help his son was going to prove to be too much, and he had the authority to do it.
So I understand that people find it somewhat disquieting.
I get that.
But it certainly wasn't invalid.
It was an entirely lawful constitutional exercise of the pardon power.
So we can debate about whether it was a good idea, a wise use of the power, but it certainly wasn't illegal.
It's also not, it's very broad, and in that sense, it's unusual.
The only modern grant that even comes close would have been Ford's pardon of Nixon.
And that seems to have been the model that they used.
Well, we'll talk about that, but I want to first show a portion of President Biden's statement on his pardoning of his son.
It says, no reasonable person who looks at the facts of Hunter's cases can reach any other conclusion that Hunter was singled out only because he is my son, and that is wrong.
I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice.
And once I made the decision this weekend, there was no sense in delaying it further.
I hope Americans will understand why a father and a president would come to this decision.
What I want to ask you about is his line, raw politics infected the process that singled out Hunter Biden for this harsher treatment, according to the president.
What was your reaction to that?
I thought the statement was unnecessary and that it adds to the controversy.
He didn't have to sort of attack the justice system in doing this.
He could just do it.
He doesn't have to explain it at all.
And I think people would have understood that a father is going to help his son.
So was Hunter singled out?
Maybe so.
He did plead guilty to the tax charge, and he was convicted of the gun charge, and there's no issue or dispute that he got due process in that proceeding.
So in that sense, sure, he came to the attention of the authorities because he came from a prominent family.
That also comes with lots of advantages that other people don't have.
And a lot of people get targeted by the federal government.
They have a conviction rate of 98%.
So the problem with what he said is that is he going to extend that same consideration to anyone else?
One hopes that he will, because it doesn't only apply to Hunter.
You said before that only one other person has received a presidential pardon that was so sweeping, which was Richard Nixon by Gerald Ford in 74.
So explain the similarities there and the differences.
So if I could just step back for a second, people need to understand that the president's authority to pardon people for committing a federal crime is very broad.
It applies to any offense that's been committed.
It doesn't have to be reduced to a charge or a conviction.
So anytime the president wants to pardon somebody for an uncharged offense, there's always going to be a problem of how do you frame that grant so that we know what charge you're talking about.
And in Ford's pardon to Nixon, he did it in terms of a date range.
He didn't say any offense related to Watergate.
He said any offense from 1969 to 1974.
Now, the purpose was to get Watergate behind the country.
He wanted to get past that.
But on its face, that would have pardoned any crime, even crimes we didn't know about that occurred within that date range.
Well, that's what President Biden did with his son.
He said Hunter was pardoned not only for the two convictions that we know about, but for any offense that occurred from a date in 2014 to 2024.
Why do you think he did that?
Well, I think it's obvious that there are other potential crimes out there, and he was afraid that the Trump Justice Department was going to continue investigating Hunter for other potential criminal violations, and he wanted this to end.
And that was the only way to do it.
Some people have said, have questioned, well, is that a valid use of the power because he didn't specify the offenses?
I personally don't agree with that.
I think as long as they're readily identifiable, the Supreme Court is never going to constrain the president's exercise of the pardon power in that way.
So I think it's lawful.
And if it were to be challenged, I think it would be upheld.
But it is extraordinarily broad.
And if you'd like to join our conversation with Samuel Morrison, if you've got a question about the Hunter-Biden pardon or presidential pardons in general, you can give us a call.
Our lines are biparty.
So Republicans are on 202-748-8001.
Democrats can call us on 202-748-8000.
And Independents, 202-748-8002.
You can also text us at 202-748-8003.
Going back to history for a moment, where did this idea, where did it originate from, this idea that presidents should have the ability to pardon federal crimes?
And what were the founders thinking?
And were they worried that it could be abused?
They actually discussed all those things.
So it originates in the king's power to grant pardon in England.
That is the historical origin of it.
And so it's modeled on that in a sense.
The founders were creatures of the Enlightenment, but they understood that no legislature could pass a law in the abstract that covered every single situation that might arise when you try to enforce that law, because the real world is always more complicated than we want it to be.
So they understood that there might well be reasons or circumstances that mitigate somebody's guilt, or that for public policy reasons, for larger political reasons, the president might want to exempt somebody even if they were, strictly speaking, guilty under the letter of the law.
So they vested that power in the president, in his discretion, and they assumed that he, because he would care about his reputation, that he wouldn't abuse it.
So it's a political power of the president, and the remedy, because the opponents of the pardon power said, well, what if he, they actually raised, what if he grants pardons to his cronies or to his family or to himself?
And the answer was the impeachment power.
So if there's, it's a political power of the president, it's extraordinarily broad.
That's why you do it right before you leave office.
That's a loophole in the Constitution.
So, you know, we are seeing, you know, they didn't think of everything.
As Marshall said, it's a Constitution, not a code.
So this is one of the, there's some play in the joints there, and this is one of them.
So yes, it can be used that way, and there's very little you can do about it.
And what's your opinion on, I guess, President-elect Trump, one doesn't know what to call him, future President Trump pardoning himself?
My own view is that he can, although it's sort of like the pardon of Hunter.
It would be unprecedented, and it probably is a bad idea, and he probably shouldn't do it, but I think he could if he wanted to.
And the reason is the Supreme Court has interpreted the pardon clause to mean exactly what it says.
He can pardon any offense against the United States except for cases of impeachment.