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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 of 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 the 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.
And 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 bipartisan.
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 here, 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.
So he can't stop an impeachment proceeding.
That's the political check.
They've also said any limits on the pardon power have to be found in the text of the Constitution itself.
And I don't see any limit in the text of the Constitution that would implicitly prohibit him from pardoning himself if it's an offense against the United States.
Can a president pardon a future offense?
I mean, could he just say, look, anything that they could do in the next five years?
I mean, is that possible?
That's a good question.
The answer is no, because the Supreme Court has actually addressed that.
So when it says offenses against the United States, they have interpreted that to mean in the past tense.
So a pardon for a future crime, which would be a license to commit a crime, would be void.
All right.
Let's talk to Anthony first in Staten Island, Republican.
Good morning, Anthony.
Good morning.
Hello, sir.
Before I ask my question, I just find it funny that if they really had evidence against President Trump, he would have been in jail already.
And I think this is President Biden's, you correct me if I'm wrong, sir.
This is Biden's last chance.
He covered his son, I believe, for 10 years from 2014, 2024, which I really believe he only pardoned him that far off because I think he knows if they really dug, they would have evidence leading back to him.
I just kind of find it pretty funny.
I mean, how can you pardon somebody for a 10-year period when they haven't really been charged with any of those crimes yet?
Can you actually pardon somebody from a crime he hasn't been charged with yet?
Yes, you can, actually.
The Supreme Court has had it several times.
It's the commission of the offense, not the charge or the conviction.
Patsy in St. Louis, Missouri.
Democrat, you're next.
Hi.
I think that President Biden should pardon his son because even though he was convicted of such minute crimes, considered that President Trump did such hideous crimes, was convicted, that he didn't go to jail for him to let it not pardon his son.
And here comes the presidency and the Republican Party with all the houses against him and the Supreme Court.
And if he calls his Trump is going to vindicate or have revenge against different people.
Biden's son would be one if they threw him in jail and they didn't put Trump in jail for his convictions and his convictions was greater deeds than Biden's son.
So I think he should have pardon his son because who would want his son to be convicted under their Republican regime and they throw him in jail?
I think Biden should put, since he still got a month or so to go, he should put Trump in prison because he's still president and he has been convicted.
But I sure wouldn't leave my son in there.
I think he did the right thing.
All right, Patsy, what do you think?
Well, I guess all I would say is I certainly hope that President Biden extends the same consideration to other people.
There are lots of people who have pending petitions requesting pardon.
Many of them, in fact, most of them, accept responsibility and ask for forgiveness.
They're not challenging the validity of their conviction.
So I think the only way to take some of the sting out of the political scandal around this pardon is to grant pardons to a bunch of other deserving people.
I just want to show a chart from the BBC.
You can see this at BBC.com.
Biden has pardoned fewer people than most U.S. presidents in recent history.
And it goes back here to Truman, who apparently had a lot of pardons during his term, but it goes down all the way here.
You can see commutations is in yellow, Obama having over 1,500 commutations and Biden with very little down here.
What do you make of those numbers?
Unfortunately, in modern times, with the notable exception of President Obama, presidents have tended to wait until the end.
They sort of neglect this at the beginning, and then they find they run out of time.
So they rush to get done what they can at the end, and it's not as easy to do as it sounds because you have to vet the cases.
So that's why the numbers aren't so great.
Talk about that process of vetting the cases.
You were involved in that, weren't you?
I was.
I used to work at the pardon office.
So by tradition, the office of the pardon attorney, which is part of the Justice Department, gets petitions for pardon and commutation of sentence on behalf of the president, investigates them, writes a recommendation, and then advises the president about whether he should grant it or not.
The problem with that is it's very slow and cumbersome.
They take a long time.
They also are, you know, this is the Justice Department.
So they're a party to every single one of those cases.
And so they have a conflict of interest.
So I actually don't think that President Trump in his first term was entirely wrong to be skeptical about the Justice Department's recommendations because they almost always say no, regardless of the merits of the petition.
What President Trump didn't do is replace it with some other rational way to review the cases.
So it became kind of a free-for-all for whoever could get access to the White House.
That's not a rational way to vet these.
So what he could do, and what I advocate that he should do, is simply move the pardon office out of DOJ into the executive office of the president and have the pardon attorney report directly to the White House counsel.
That doesn't mean DOJ wouldn't have a role.
Of course they would.
And it's perfectly appropriate for them to weigh in on cases.
They just shouldn't control the entire process.
Let's talk to Larry in Galesburg, Illinois, Republican.
Good morning.
Good morning.
I had a question if somehow A foreign government official comes forward with proof that Hunter Biden and his father committed treason in this 10 years that he's been granted a pardon.
Could anything be done to them, or could they be brought into court?
Or are they just scot-free with whatever they've done for the last 10 years?
Well, any offense that falls within the scope of that 10-year period, Hunter's been pardoned for if it's a federal crime.
But it doesn't apply to the president.
He didn't pardon himself.
Does that answer it, Larry?
No.
So in other words, I'm a high official of Saudi Arabia, and I gave Hunter $10 billion to split with his dad.
Now, neither one of them can get in trouble because he's pardoned for the past 10 years.
No, that's not what I said.
I said Hunter can't be charged if the offense falls within that 10-year period.
So if it's a completed crime within that 10-year period, he's been pardoned.
President Biden hasn't been pardoned.
He didn't pardon himself.
So if he committed a crime in theory, there's no reason that he couldn't be prosecuted.
Can any pardons be undone by a future president, by an act of Congress, anything like that, Supreme Court?
The answer is no.
If it's a valid pardon and it's accepted and received by the grantee, it is final.
Here is Michael in Lynette, Alabama, Independent.
Yeah, I'm concerned about the fact that everybody is concerned about President Biden giving a pardon to your son, but no one seemed to be concerned about President Trump.
Elect President Trump is threatening to release the January 6th people with a pardon.
Can he do that?
I think he can.
He actually can.
And there's actually a historical tradition of presidents doing that.
For example, when President Jefferson was elected president in 1803, he pardoned everyone in prison who'd been convicted under the Alien and Sedition Acts.
Because in his view, those were unconstitutional, even though they'd been upheld by the courts.
Wait, what did those people do?
They were alleged to have engaged in sedition against the United States.
And Jefferson thought it was all political and it was just aimed at the Federalists' political opponents.
Very similar to what Trump is saying.
I'm not trying to say, draw an equivalence.
I'm just saying it's been done.
So he can't.
He could.
He said he's going to.
I wouldn't be surprised if he did.
And Thomas Jefferson, was he the first president?
He was the third president.
Was he the first to pardon?
No, no.
George Washington pardoned the participants in the Whiskey Rebellion.
And John Adams granted a few pardons.
I can't tell you off the top of my head how many, but there weren't that many because there weren't very many prosecutions.
Sam in Baltimore, Democrat.
Good morning, Sam.
Good morning, C-SPAN, Mini, and Mr. Morrison.
Here's my point: I think that President Biden changed his idea because he's seeing what Trump is talking about with his vengeful attacks.
He's going to use the Department of Justice to go after people repeatedly.
So I think, didn't Biden have a plea deal?
But they don't care about that.
They want to keep him in the papers.
They want to keep him in the press.
They want to keep continually attacking them.
So I understand why he'd give a broad, maybe 10-year idea out there because Trump is vindictive and vicious and wants to hurt people that he feels has wronged him.
Could you please comment on that?
Thank you.
I mean, I think you're right.
That was their concern.
That was clearly why they did it.
They were concerned that there were other, at least potential charges out there and that Trump would pursue them.
So this was a way of closing the door to that.
Joe in New Jersey, Republican line.
Good morning.
Good morning.
My question is about Hunter Biden.
A previous caller said that he didn't commit any egregious crimes.
He has all these images out there that they found on the computer of him and, you know, naked and with, you know, drugs and guns and all that.
I don't understand how he can be pardoned for that when other people can't get pardoned for that.
you know it just doesn't make sense to me well that's the that's what I said before That's the big question.
What is President Biden going to do with the remaining time he has in office?
There's plenty of time for him to do something, lots of pending petitions.
So we all hope that he grants pardons to a bunch of other deserving people.
And I think, as I said, that's really the only way to sort of take the sting out of this a little bit.
You mentioned, I just wonder what changes you think should be made to the whole process of pardoning.
You mentioned taking the office out of the DOJ and putting it in the executive office of the president.
What other changes do you think should be made?
I think that would solve most of the problems because then the pardon attorney would be independent.
And that's important.
I'm not implicitly criticizing the people in the pardon office now.
Assume that they do everything in good faith.
They still have a conflict of interest.
And they're still part of DOJ.
And DOJ definitely uses that office to try to control the president's exercise of the pardon power.
And they do it by controlling the information that he gets.
So the only other thing I would do is I would make it a little bit more transparent.
Right now, a pardon applicant can submit his petition, but he doesn't get to see what DOJ says about it and can't respond to it, which means DOJ gets to do this in secret.
That to me is a problem.
In any other legal proceeding, DOJ has to, there's a give and take.
Both sides get to see what the other side is saying and respond.
So I think if the pardon attorney was independent of DOJ, DOJ's recommendation could be disclosed to the petitioner and the petitioner could respond.
And then the pardon attorney's advice to the president would be confidential, but at least the petitioner would have the opportunity to see what DOJ is saying about his case.
How does one petition or apply for a pardon?
Well, in the normal course, there is a formal pardon application form and there is a commutation application form.
And you download them from the office of the pardon attorney, you fill them out, and you submit it to that office.
How many does the office get per year, let's say?
Thousands.
Thousands.
I would say they get on the order of maybe hundreds to a thousand or so pardons.
So the rest are commutations.
Those are people in prison trying to get their conviction cut short, typically.
So what's the success rate typically?
Well, for the pardon office, it's extremely low.
It's less than 1%.
I can give you some concrete numbers that I know personally.
When George W. Bush was president, the Office of the Pardon Attorney received about approximately 8,500 new commutation petitions that were filed after he took office.
Of those 8,500, roughly, six got a favorable recommendation.
Okay, that's a really just a problem.
Essentially none.
What they're really saying is everything's perfect and we never made a mistake and there's no reason to look at any of these.
And of those six, three were almost already out of prison anyway.
So in only three cases was there any sort of acknowledgement that there should be meaningful relief.
And that illustrates the problem that I'm talking about.
And I don't think anything has really meaningfully changed.
Even numbers might go up a little bit or whatever, but they're not going to go up that much.
So that's essentially what we're dealing with.
Let's talk to Mike in Reston, Virginia, Democrat.
Hi, Mike.
Hi.
I mean, president has the right to pardon, and it's his legal right.
People don't like it.
That's fine.
Republican went after Hunter for political reason.
We all know this.
Many people commit this crime, they never get charged, but they did it for political reasons.
And I don't understand why C-SPAN is focusing on this.
How is this going to affect our lives?
How are we going to change?
What's happened to inflation and borders and immigration and all these subjects?
And we're talking about Hunter Biden.
This is ridiculous.
I mean, come on.
I mean, Trump, a convicted parent, is running for the United States.
He became a president of the United States again, and he tried to overthrow our government.
And we're talking about Hunter Biden committing a crime like this.
It just doesn't make sense.
Our system is not working right.
How big of a deal are the crimes that Hunter Biden was convicted of?
Oh, I mean, in the grand scheme of things, I think they were on the minor end of the scale.
And they're rarely, you know, they aren't prosecuted that often.
In a tax case, if you pay the money back, you often aren't prosecuted, at least if you don't lie during the course of the investigation.
That's usually why you get charged.
The gun charge, it's there.
It was a valid charge.
I'm not saying that it was an invalid charge.
It's just not used very often.
So he was one of the unusual people who got prosecuted for that.
That's all true.
Neil in Cleveland, Ohio, Republican line.
Hi, Neil.
Hello.
For Mr. Montgomery, and it's interesting because he just discussed what I was about to ask.
The tax case against Hunter Biden.
Well, to begin with, Hunter Biden had tax issues that were relieved by the statute of limitations back some years earlier.
But then when he was found to have the tax fraud for the current period, they convicted him of this, or charged him with this, I should say.
So when you're charged of this tax fraud, my understanding is, you know, when you do something wrong in tax, if you come forward and pay, you're okay.
But if they come and find that without you coming forward, then you're guilty.
And these people who do that, whether they pay or not, my understanding was they go to jail.
So, I mean, what Mr. Montgomery just said is not that not the case.
So he's saying that, oh, well, he paid it, including the penalties, I know.
Mr. Morrison.
Yeah.
Okay.
Okay.
I'm sorry.
Go ahead.
Go ahead.
Well, no, I mean, I actually don't agree with that.
I didn't say that somebody like Hunter Biden would never get prosecuted.
I was asked what typically is the case.
That's all I'm saying.
That is very often the case that if you self-report, as you say, and pay the fine and you don't lie to the IRS while they're investigating you, you often can work it out.
On the other hand, it was a valid charge.
He did, in fact, evade taxes.
He admitted it.
So in that sense, there's nothing wrong with the conviction.
Quick question for you from Jay in Greenville, North Carolina.
Does the presidential pardon power apply to state court jurisdiction or only rulings of federal courts?
And can you discuss the Oliver North pardon?
It does not apply to state crimes.
It's only where the United States is the prosecuting authority.
So that's district courts, military courts, D.C. Superior Court.
The Oliver North Pardon.
I'm not sure what he's interested in as far as the Oliver North Pardon.
I mean, he was alleged.
I'm not even sure Oliver North was pardoned.
Oliver North got an immunity deal, so I'm not sure I followed that question.
All right, that's Samuel Morrison, former staff attorney at the Department of Justice, Office of the Pardon Attorney.
And thanks so much for joining us.
Thanks for having me.
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