Constitutional law expert Kim Wehle critiques the Trump administration’s push for unitary executive theory, allowing presidents to fire independent agency officials without cause—breaking a 90-year precedent. She warns of pardon power abuse, citing $2M spent on lobbying since January and cases like Juan Hernández (400 tons cocaine, $4.2B alleged military ties) or Elon Musk’s unchecked influence. Comparing modern overreach to King George III’s rule, Wehle advocates reform: public disclosure, cross-community review, and stricter oversight, arguing the system now bypasses democratic accountability. [Automatically generated summary]
Back at our desk now, it's Kimberly Whaley, law professor at the University of Baltimore, ABC News legal contributor, author of several books, including Pardon Power, How the Pardon System Works, and Why.
Before we get to pardons, though, there was a Supreme Court case yesterday that was argued here on Capitol Hill.
This is the lead story in today's New York Times: the headline, power to fire likely to grow for the presidency, protections at risk for independent officials in the FTC case.
Why is this case important?
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It's important because federal agencies don't just operate like executive branch actors, that is, law enforcement officials, prosecutors.
They also regulate.
And when agencies regulate, that's basically like legislation.
It operates the same way.
Congress gives agencies power to legislate.
So what this case is really about is consolidating complete power over agencies, not just executive branch power, presidential power, but also all that legislative power in the president and not allowing Congress to put restraints on how people in the executive branch are hired and fired.
If we just go back to the three branches of government, where do independent agencies fall?
Are they in the executive branch?
Are they in the legislative branch?
Are they in the judicial branch?
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They're technically in the executive branch, but they're created by Congress.
So Congress passes laws making these agencies.
And the theory is if they're going to make the agencies, they can dissolve the agencies and they can put some details on how the agencies actually work.
It's that question that is, can Congress say, listen, President, you can control the agency, but for certain people, you can only fire them for cause.
Neglect malfeasance, something like that.
For 90 years, the Supreme Court has said, okay, that's okay because there's actually nothing in the Constitution that gives the president the power to remove anybody.
It's only appointment.
It's that 90-year precedent that now, after the fact, the Trump administration is arguing that that infringes on presidential power, and therefore all of those limitations on removal have to go.
The only difference between an independent agency and a department-level agency is they tend to have these commissions.
There won't be one person in charge, like the Secretary of Defense, for example.
There'll be like the Securities and Exchange Commission or the Federal Trade Commission with multiple people in charge.
And the idea, again, with that is to sort of dilute power so it's not concentrated in the political system.
A term that has come up with this case yesterday and the arguments around this case, unitary executive theory.
What is that?
unidentified
It's a theory, and the idea, and I say it's a theory because we talk a lot about textualism, originalism.
This is a gloss on the Constitution that essentially says once presidents get power, there's no limitation.
So the argument here is- It's a one-way ratchet.
It's a one-way ratchet.
So there's about 3 million people in the executive branch.
And the idea is: okay, if it's presidential power, the president effectively operates like a monarch, and that Congress and the courts cannot push back on that power.
This was a big argument during the second Bush administration with the torture memos and the war on terror.
The argument back then was: as commander-in-chief, he cannot be constrained by the other branches of government.
Now the argument is morphed to as president, period, and all the powers of the presidency, he can't be restrained by the other branches of government here when it comes to firing certain officials.
On the powers of the presidency, let me shift to pardons because pardons have very much been in the news.
What are the limits people are asking right now?
What are the limits to a presidential pardon?
unidentified
Well, just like the other powers in the Constitution for the president, there aren't any express limits except that they're for federal crimes and he cannot pardon impeachments.
Historically, there aren't a lot of cases that have come up around pardons.
People don't really have standing to challenge pardons.
The court has pulled back to some degree, said, listen, once somebody has paid a fine into the federal treasury, presidents can't give that back because that's Congress's power.
But beyond that, it's been really treated like a king-like power with no limitations on the pardon.
Now, where does it come from?
It goes back to even before the New Testament.
Famously, though, in the New Testament, Jesus of Nazareth was denied a pardon, and that's why he was crucified.
The idea really behind pardons is mercy.
That back in common law England, there wasn't a well-developed criminal justice system, there weren't criminal defense rights, there wasn't a jury trial for a long time.
And so, the idea was the king needs to be able to step in and sort of have a fairness element in a system that was kind of a bit of the Wild West.
Now, we have a well-built-out criminal justice system.
We have a lot of laws, we have constitutional protections, we have appeals.
So, as I argue in my book, the pardon power isn't needed today the way it was then.
But even then, before the ratification of the Constitution, the framers had debates on whether the pardon power could be abused, and I think that's what we're seeing now.
And just to put it in context, so how does Donald Trump's use of the pardon power in his second term, how's it going to pair to the first term and to other modern presidents?
unidentified
Well, you know, you could say, why do we have a criminal justice system at all?
Like, why do we put people in jail and put them through these processes?
It's to keep the public safe.
It's maybe to make certain people whole that were criminalized.
So, Donald Trump, first day in office, pardons, you know, 1,600 people that were, many of whom were violent at the Capitol, puts them out into the public.
We're seeing pardons that look like there's close relationships between the presidency, his sons, his businesses, and the people that are seeking pardons.
So, this idea of it's kind of this goodie that you can give out to loyalists, I don't think we've seen that kind of pardon, abuse of the pardon, frankly, not legally, technically, but the sense of it is improper.
And we're seeing, you know, we're seeing a cottage industry, you know, since January, lobbying disclosures demonstrated over $2 million being paid to people to lobby for pardons.
I mean, this undoes the entire criminal justice system.
And it undoes the laws that Congress enacted, and it undoes the jury process and all the criminal process.
That is historically the case for pardons, but one other point on that, when Bill Clinton pardoned Mark Rich, which was a big scandal, he was a tax evader and had ties to a Clinton Foundation after the fact his wife gave money.
Congress did an investigation.
The Southern District of New York, the U.S. Attorney's Office did an investigation.
They didn't produce any kind of criminal actions, but that I think stands in stark contrast to today, where we all just assume there are no limits whatsoever on the pardon power.
That's not been the case, except I think in the last few years.
Kimberly Whaley is our guest, University of Baltimore law professor, author of several books to help you understand your government and legal issues related to, including the pardon power book, also what you need to know about voting and why, how to read the Constitution and why.
She's been on this program in the past to talk about all those books.
If you have questions about the pardon power or some of the cases before the Supreme Court, now would be a very good time for you to call in.
She's with us for about the next half hour or so.
202748-8001 for Republicans.
Democrats 202-748-8000.
Independents 202-748-8002.
Just before we leave pardons, if you were to recommend to Congress how to fix the pardon process, one, can Congress do it or would it require a constitutional amendment?
And two, what would you recommend?
unidentified
Well, I'm on record as thinking we should really abolish the pardon power.
If there are problems in the criminal justice system.
With fairness, then we should fix the criminal justice system.
There's no ban on disclosure laws, so there could be a requirement that the files and the internal documents relating to the pardon be made public so people can see if there's lobbying for pardons, if there's quid pro quos for pardons.
Congress could create, right now the recommendations are supposed to go through the Justice Department.
That's not happening with this Trump administration as robustly as it was.
Congress could create a mini-agency with cross-sections of the community, people representing different interests, to make recommendations.
And Congress could certainly beef up the lobbying for pardons.
Because right now it looks like if you've got money, a lot of money, and you have access and power already, you can get this get out of jail monopoly card.
Whereas regular people who don't have those things are not able to have that kind of goodie from the president.
That seems to be a distortion of how our criminal justice system works.
Did George Washington use the pardon power when he was president?
unidentified
Whiskey Rebellion.
So yeah, he pardoned rebels that were upset about the king putting taxes on liquor.
And that kind of gives rise to the other traditional use of the pardon power, which is amnesty, the idea the country's gone through a trauma, will pardon people to move the country forward.
And in theory, presidents get pushback from that, like Jimmy Carter pardoning people that dodged the draft in the Vietnam War.
Some say he didn't get a second term for that.
So, in theory, every power under the Constitution should have accountability to the voting public.
There should be a way that the voting public can say, I don't like this.
This is my power.
It's not the power of a king.
It's the power of me collectively.
And right now, we're seeing the pardon power get outside that scope.
Historically, was there a president that was known as the pardon president?
If you think pardons, you think this president?
unidentified
Well, I mean, I think Donald Trump is on record as pardoning more people than ever, historically, any other president in history.
There have been presidents.
I mean, Barack Obama did a widespread commutation order that, you know, for long drug sentences, for example, those were lesson.
Joe Biden issued pardons for people that were convicted of marijuana crimes.
So, I want to put a pin in one point, which is, you know, as I said, I think we should get rid of the pardon power because it's now become a tool of corruption, but it could be used actually for justice.
George Bush, the second George Bush, when he left office, he made a statement I'm paraphrasing that, listen, we should rethink the pardon power because there's so much pressure for outgoing presidents to hand out these things in ways that aren't consistent with the system.
And why would a president, and I'm not talking Donald Trump or Barack Obama specifically, why would any president choose commutation versus pardoning?
What's the legal logic?
unidentified
Well, I don't know if there's any legal logic.
Again, it's supposed to be around a gestalt sense of whether, in fairness, this person should get the pardon.
You know, it's hard to say, except that commutation is a lesser relief.
So, there have been instances where a sentence was commuted and then later the same president or a different president decided to give a full pardon.
The full pardon, in theory, is a sense of forgiveness.
Like, this is a crime that I, President, am okay with the underlying behavior.
And this is, I think, if you unpack some of the things that's happening with President Trump, for example, pardoning ex-Hondoran President Hernandez, who was a narco king, according to the Department of Justice.
400 tons of cocaine brought into the United States, 4.2 billion doses of cocaine used in the military allegedly to protect these shipments coming into the United States.
I think many Americans would say that's not the kind of activity that should be forgiven by a United States president.
That's just one of the arguments that are being made in critique of that particular pardon right now.
Well, I actually agree with Glenn's general assessment that people talk about Donald Trump's threatened threats in the past to suspend the Constitution.
There are provisions of the Constitution that have been effectively suspended by the Supreme Court.
The Fifth Amendment due process clause, sending eight people to South Sudan where they could be tortured and killed without basic due process.
The Fourth Amendment, I know Ken Cuccinelli was talking about how these ICE detentions are functioning.
There was a case in which it was clear the department is using race and skin color and whether you speak Spanish to pull people aside and the Supreme Court in these emergency shadow docket rulings are greenlighting that things, that kind of thing.
Creating the department, Doge Department.
That's actually a power of Congress.
Dissolving USAID, that's a power of Congress.
Giving Elon Musk, a private billionaire, unprecedented power over multiple agencies.
He's not accountable at all to the Constitution, to the American public.
All this stuff is happening under our noses.
The Supreme Court is in these emergency petitions without full briefing, oral argument, is overriding the lower court judges that are just putting pauses on this stuff.
They're kind of wait a minute orders, like, whoa, let's just wait and see.
Can I just see what's going on here?
The court saying, no, we're going to let Donald Trump go forward.
So I agree that we're seeing a very new construction or understanding of the Constitution.
And I would argue it's kind of what the framers are exactly what the framers rejected.
Yeah, so typically when you're talking about litigation, it goes through the district court, it goes to an appellate court, then it goes to the Supreme Court on what's called a writ of sertiori.
Both sides will brief things, amicus briefs, friends of the court that have different ideas all file.
You have reams and reams of paper.
You have oral argument.
You wait many months.
Exactly.
We're talking about them at the top of this conversation.
And then you'll get big, long opinions.
And leaving this here to take you to the U.S. House.
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