I think it's unpredictable, but change will be a constant.
Our guest is John Grinspan.
He's the author of The Age of Acrimony, How Americans Fought to Fix Their Democracy.
He's also author of the new book that just came out earlier this year, Wide Awake, The Forgotten Force That Elected Lincoln and Spurred the Civil War.
John, thank you so much for being with us today.
Thank you, Tammy.
That does it for today's Washington Journal.
We'll be back tomorrow morning at 7 a .m. Eastern.
Good morning, Kim.
Good morning.
Thanks for being with us.
You also have a new book.
It came out over the summer, and it is called Pardon Power, How the Pardon System Works.
And why?
It's your fourth book that ends in Y.
Tell us why you chose to focus on Pardon Powers for this one.
Because it's sort of the next logical step in the series in that the first book is how to read the Constitution and why.
We're good to go.
We're good to go.
I think?
We're good to go.
We're good to go.
Pardon means forgiveness.
So it's different from an exoneration for a crime.
If you want your record completely wiped out, like it didn't exist, you've got to go to a judge and go through that process.
A pardon is, in hindsight, you're forgiven.
It does have practical implications.
If you're pardoned while you're still in prison, you would be able to leave early.
But it also can, in certain states, lift some of the...
Negative connotations for a pardon.
Maybe in a certain state, if you have a felony conviction, you can't vote, it could lift that.
Or you can't apply for certain certifications for jobs, it would lift that.
The other two kinds of pardons are a commutation, which isn't forgiveness for the pardon, but it just shortens your sentence.
So those are for folks that are in prison, that wouldn't be a full pardon, that you're forgiven for the crime, but the idea is Jimmy Carter
pardoned.
And who can grant pardons to who and for what?
To grant reprieves and pardons for offenses against the United States except in cases of impeachment.
Very short.
Doesn't give us a definition of pardons.
Doesn't give us a definition of reprieves.
It does say offenses against the United States.
So that means presidents cannot pardon offenses against states.
So if you commit a crime under state law...
We're good to go.
To explain what all of this means, there's been some tweaking of it.
I would say probably the most prominent expansion of that power, when I say expansion, you think of it traditionally, someone committed a crime, convicted of a crime, you're pardoned of the crime,
would be Gerald Ford's pardon of Richard Nixon after Watergate.
Because in that instance, there was an indictment of Richard Nixon ready to go.
And apparently...
I'm speaking to those prosecutors.
My understanding is there were crimes that weren't included in even that indictment.
There were additional crimes they believed that Richard Nixon had committed.
They chose a certain smaller batch of them for the indictment, but Ford decided to broaden the part into not just what was listed in the indictment, but any possible crimes that were committed within a particular time period.
So with that historical...
The court has indicated you can't give someone a pardon to go out and commit crimes in the future, right?
You can't just create...
You have to actually have an indictment and a charge that's specific.
And your book looks at the historical pardons that many presidents have made.
And of course, another one has been in the headlines this past week, and that is that President Biden issued a full and unconditional pardon to his son, Hunter Biden.
What is your reaction to that?
My reaction to that was it was to be expected for a number of reasons.
I know people tended to be upset about The fact that he said multiple times that he would not pardon his son.
And then either knew that he was still going to pardon his son or changed his mind.
But in terms of the Hunter Biden question itself, to me it wasn't out of line or corrupt for a number of reasons.
One is that presidents twice before have pardoned family members.
Bill Clinton pardoned his brother.
And Donald Trump pardoned his son -in -law's father, Jared Kushner's father, Charles, and has since tapped him to be ambassador of France.
So the idea that you'd pardon a family member, that precedent is already out there.
Joe Biden doing the same thing.
You know, it's getting more pushback, but it's not out of line historically.
The second question I think around pardons is, is the pardon done to cover up your own wrongdoing for self -dealing or for corrupt reason?
Here, I think it seems like the pardon is to protect his son for potential additional criminal...
We're good to go.
I think?
The other thing is the crimes.
He paid back all the tax liability with interest.
And the other one was lying about his addiction on a gun application and then owning the gun for 10 days.
I would assume there are gun advocates that would see a problem with that kind of thing under the Second Amendment.
We didn't really hear much pushback for that.
But I would say if Biden weren't a Biden, if this were one of the 10 ,000 applications that come to a president, maybe that is one that it would seem like, oh, it doesn't make sense for a long incarceration.
For that kind of offense when we're not concerned reasonably that there would be any injury to the public on the other side.
We are talking with Kim Whaley about presidents and pardon power for the next 30 minutes or so.
If you have a question or comment for her, you can start calling in now.
The lines, Republicans 202 -748 -8001, Democrats 202 -748 -8000, and Independents 202 -748 -8002.
Kimberly, something that you mentioned just now is that President Biden's decision to pardon his son is preemptive considering what President -elect Trump may do once he is in office.
How could this decision to pardon his son impact how Trump exercises his pardon powers?
Yeah, so there's an argument that The use of the pardon in a way to react to or address what's happened with the next president or the prior president could create this sort of boomerang effect.
What's good for the goose is good for the gander.
And we could just see the use of pardons escalating for political gain and to cover up crimes.
And I think a big concern, which isn't really around Biden, but it's a big concern that the Supreme Court in the immunity case.
I think created is that now that the president has authority to use the Justice Department to commit crimes because it's official power and the Supreme Court specifically singled out the use of the Justice Department as above the law,
if a president wants to commit crimes and wants to get people that'll help him commit crimes, the pardon gives that.
We're good to go.
I don't think so.
We're good to go.
I think?
The pardon power broadly, it's not going to be because Joe Biden gave him the green light.
Although if Joe Biden does these kinds of things, it will give political cover to say, oh, Joe Biden started it.
And it'll probably confuse the public.
But at the end of the day, I think we're headed towards, you know, a weaponized Justice Department.
I take the president -elect at his word and more use of the pardon power to cover up crimes.
Your first caller is Marion in Georgia, on the line for Democrats.
Good morning, Marion.
Good morning.
I have several points on this.
I absolutely think the pardon power should be done away with, and for several reasons.
One that you said, Kimberly, is because it seems like the powerful and the rich at the top will just keep Pardoning each other doesn't matter what party you're in.
They'll just pardon each other, say, go ahead, do all the crimes you want, and we'll pardon you.
And that seems ridiculous to me.
And another one is that under the law, we're supposed to all be equal.
And so I think if they're going to be able to be pardoned, the president can pardon, I think every family in this country should also every four years be able to pardon a family member or relative.
That would only be fair.
And it just seems to me either we get rid of the pardon power because that's only helping the elite and the rich and the powerful, or we give it to every family every four years in this country.
Thank you.
Bye.
Interesting.
Well, you know, at the time of Jesus, the Romans, the community could choose the pardon, so there is some precedent for that.
But I do agree, and I write in my book, I come to the same conclusion that the pardon power is anachronistic and we shouldn't need it.
One of the problems with the pardon power is that it gives an excuse to not fix the criminal justice system.
There's a case, Herrera v. Collins, where...
It involved a prisoner who had new evidence showing he was innocent, exonerating evidence, and tried to use what's known as habeas corpus.
It's another way of challenging your incarceration.
Tried to use that to get out of prison and say, listen, I have this evidence that shows I'm free.
I mean, I'm innocent, and I'm being held basically against my constitutional rights.
And the Supreme Court said...
Well, you always have the pardon, so we're not going to let you use the habeas process to get out of prison.
So if that's the case, if this dangling pardon is out there that is relatively rarely used for deserving people, and definitely people with access and money are more likely to get it,
then why do we even have it?
It almost has a counter -intuitive...
I don't know.
um used or maybe abused their power that to me to me is a problem to get to change the pardon power however would require a constitutional amendment that would be both houses of congress super majorities and super majorities in all the state legislatures and when i say that people say oh that could never happen but it has happened 27 times in our history i think the most recent was in the 70s so we can do these things if the people can come together
Good morning.
Kimberly, you're one of my favorite guests.
I always enjoy when you're on.
I got a legal question for you.
Ruliani was Trump's lawyer, and he paid to be Trump's lawyer.
So how did the client -lawyer privilege result to him as far as he was committing crimes, but you couldn't charge him because he was Trump's lawyer?
Thank you.
I'm glad you raised this because there's a lot of mythology around this.
The turn of client privilege requires a couple things.
First, it requires that there's an agreement that you're going to be acting as an attorney for someone.
So if Aunt Millie's an attorney and you're chatting with her over Thanksgiving about something, that's not protected just because she happens to be an attorney.
It has to be...
A conversation between attorney and client for the purpose of giving or receiving legal advice.
It can't be about, you know, your bank statements.
And it has to be confidential.
So if somebody else is sitting in the room, then there's no privilege.
And the last thing is, you can't go to your attorney for advice on how to commit a crime.
So you can't go to your attorney and say, I killed someone, where should I bury the body?
That would be asking them to participate in the crime.
If you go to your attorney and say, I killed somebody, what do I do next?
That would be completely privileged.
As far as Rudy Giuliani and Trump, kind of like Michael Cohen and Trump, there were...
There's some confusion around which parts of that relationship were covered and not covered by the attorney -client privilege, but that's basically the test that if you jot it down and go back to those questions, those factual questions you're wondering about,
you could noodle through whether the privilege would apply or not.
Dennis in Ohio, Line for Independence.
Good morning, Dennis.
Good morning, everyone.
You know, it's sad that the whole system has been perverted and...
Corrupted, turned upside down and inside out.
The presidency of Donald Trump showed Americans that anything can be corrupted when it's not fair, balanced and equal across the board for everyone.
I just want to leave this question with those who are listening.
If Barack Obama had done and committed the same acts and crimes that Donald Trump committed, and we all know he committed.
Would Democrats, Independents, and Republicans feel the same way about the system?
Would it be this, "Oh, we'll overlook this"?
I truly believe that he would have been dealt with thoroughly for breaking the law, which he should have if he did it.
I mean, something's wrong with the whole system, and if we don't stand up and just be decent, as they say, law -abiding, moral.
Yeah, I think there's a sense that it's accountability for thee, but not for me.
You know, it's hard to convey from the standpoint of the Constitution how crucial it is that these kinds of things, that accountability for people in power...
Has to be consistent.
I like to use an image of a bridge over a very, very rough river.
And say the bridge is 240 -ish years old, like the Constitution.
And people are on the bridge, red coats and blue coats, and they're fighting over who gets to control the bridge.
And they start doing maybe some shady stuff to ensure their power on the bridge.
And everyone starts then being angry with each other and wants to win and throw people over the side of the bridge.
Meanwhile, the bridge's grouting is being completely ignored.
The water's washing it away and it's crumbling and no one's paying attention to the bridge because we're so interested in blue versus red.
One day, the bridge collapses.
And I think the question for everyone is who survives when the bridge collapses?
Who survives?
That is exactly what I think the caller is talking about.
It's protecting the system that ultimately protects you, your enemy, your friend, but mostly, in my mind, our children.
Our children who cannot vote.
They have no agency right now.
So whatever we do, if we climb onto a system that's corrupt because we just happen to like...
Kathleen, Dayton, Ohio.
Line for Democrats.
Good morning, Kathleen.
Thank you and thank you for Washington Journal.
But Kimberly, boy, I can't wait to read your book, because this is such a fascinating topic.
And I just, forever, decades, I've just been amazed by how many of our officials, you know, our reps, our presidents, military officials, you know, Department of Justice officials, you know, will say,
no one is above the law.
No one is above the law.
Well, no one out here in the real world believes that.
I mean, we can watch what's happened.
We can watch who's pardoned.
You know, and I'm going through the list right here of presidents and how many people they've pardoned.
It turns out Obama, what is that, like something, where did his name go?
Anyway, it's like over a thousand.
And then, of course, Roosevelt, who was in the presidency longer than anybody, like a massive amount of pardons.
But I want to ask you again, I mean, how do you think that affects the public in regard to, I mean, no one believes.
No one believes it.
No one is above the law.
And then I want to ask C -SPAN to do, I've gotten to know two people with felonies, one felony each this past year.
And I want Trump to do a master class on how to get a job, well, the presidency, with 34 felonies.
So I hope C -SPAN does a program on all these people who may have, say, one felony and it's not like, you know, stealing catalytic converters or something like that.
I'm not saying that's serious.
However, these people I agree with the caller that the idea that no one is above the law is not really true anymore.
And it really did change this summer again.
I cannot emphasize enough how huge the immunity decision is in terms of changing the course of our government.
And the justices did it without, I think, the authority to do it.
They basically changed the Constitution.
The Constitution can only be amended by the people.
And they went ahead and did it.
And basically we now can only see What will happen when you tell people with the most power pretty much on the planet that they can do whatever they want with that power?
Incentives and disincentives really make a difference with the law.
If you get the ticket for speeding, you'll slow down the next time you drive down that street.
And also, I think people are understanding, and this is not new, that justice in America works better if you have money and access and power.
If it's a civil case and you need to sue someone or you're being sued, it's extremely expensive.
So big corporations that can hire Washington lawyers at $1 ,000 an hour are going to do much better than, you know, a single mom with her mom -and -pop shop that needs the money for food.
Or, you know, for retirement.
Same way with the criminal context.
The Constitution doesn't recognize poverty as somehow a protected class.
So if you are arrested and you can't make bail, you don't have the money to get yourself out of jail until the trial starts, you will stay in jail because of your poverty before the government puts one piece of evidence against them.
Innocent until proven guilty, unless you are poor.
Right?
Then you have to basically face the consequences of a crime for which nothing's been proven against you.
On the message of the pardon, I'll just put one anecdote which really surprised me.
I was doing a talk in Austin and there was a teacher, a high school teacher, who said that he is having problems conveying to his students now that Donald Trump pardoned a number of hip -hop artists,
Kodak Black, etc.
And they perceive that as meaning, I can now commit crimes and just get a pardon.
And he has to debunk that idea and convey that, no, you're not the kind of person that's going to get a pardon.
This whole conversation we're having, the concern is we just might shift to an environment where lawlessness is more accepted across the country on many levels.
If it's starting at the top, it'll trickle down.
At the same time, people want to see more toughness on crime.
We'll just have to see where that kind of chaos lands.
Before President Trump left office at the beginning of 2021, there was reporting that he was possibly looking at pardoning himself.
What is our current understanding of somebody's...
Okay, great.
So, on the self -pardon, there's no law on whether a president can self -pardon.
There's an argument that Theoretically, you can't beat a judge, jury, and everything of yourself.
That just gives too much power.
It doesn't make logical sense.
A lot of the stuff when it comes to presidents, Trump and everyone else, is if somebody does it, what's to stop them?
Not so much what does the Constitution say.
So if he were to self -pardon, who's going to say anything about it?
Oh, okay.
So the president cannot pardon state crimes?
So the 34 felony convictions that stand against him, and he's waiting for sentencing in Manhattan, he cannot pardon.
And also the pending indictment in Georgia, he cannot pardon.
So if he is sentenced in either of those cases, he would have to be at the mercy of the New York pardon system and the Georgia pardon system.
In New York, it's at the discretion of the governor, who is a Democrat, Kathy Hochul in this moment.
In Georgia, it's actually a commission, but you're not eligible for a pardon until five years after you've completed your sentence.
So Trump would not be eligible for a pardon under Georgia law until the trial, the appeals.
Let's hear next from Richard in North Carolina line for Republicans.
Good morning, Richard.
Most everybody that Trump pardoned had already served their time before he pardoned them.
And I keep hearing all this about Trump, but I think you're a law professor, but you don't call nobody out.
President Obama did spy on Trump's campaign.
That was a fake dossier that they did.
These people have committed treason, and you're teaching our people?
Law?
This is a joke.
Thank you.
Bye.
Just for the record, definitely five years have not passed since the pardons, the last round.
I can't remember at the top of my head where Paul Manafort and Roger Stone were in, but the pardons definitely did not happen five years after the conviction, which is the standard under the Department of Justice.
But again, Donald Trump didn't have to adhere to that because his pardon power is absolute.