Pardon My Concerns – Should We Put Limits on Presidential Pardons? with Kim Wehle

Episode Notes

Transcript

Kim Wehle:

What stands between us and tyranny really is electing people with integrity. You use the word virtue. I use integrity with this kind of power that should be the primary criteria. Republican, democrat, or independent.

Announcer:

That’s today’s guest on SideBar. Kim Wehle, university of Baltimore Law professor and author. SideBar is brought to you by Monterey College of Law, San Luis Obispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the colleges of law with campuses in Santa Barbara and Ventura. Welcome to SideBar discussions with local, state and national experts about protecting our most critical individual and civil rights Co-hosts La Deans Jackie Gardina, and Mitch Winick

Jackie Gardina:

Mitch. After the Supreme Court’s last three terms, I feel like we’ve been hit with a tsunami of decisions that we’re still p our way through the wreckage to see what we can salvage. The Supreme Court has made it difficult to expand access to the Vote Challenge Voter suppression laws reverse the effects of gerrymandering. They’ve undermined public corruption laws challenged the legitimacy of the January 6th convictions, expanded access to guns and granted the President absolute immunity for a wide range of actions and this list is in no way comprehensive nor does it cover judge a lien Cannon’s recent decision to dismiss the classified documents case against Donald Trump. I’m not sure we fully understand the implications of these decisions.

Mitch Winick:

Jackie as usual, when we’re faced with these type of challenging questions, we seek out experts to help us better understand the underlying history and law. We’re thrilled today to have University of Baltimore law professor and author Kim Wehle, who teaches and writes in the areas of administrative law, federal courts and civil procedure. She’s the author of the Soon to be Released book, how the Pardon Power Works and Why and to previous books, what You Need to Know About Voting and Why and How to Read The Constitution. All three of these books explain complex constitutional concepts in a way that all of us, including the non-lawyers can understand. In addition to her writing and teaching, Kim is an a BC legal contributor. She’s also been a contributor for BBC World News and BBC, world News America and an on-air legal analyst and commentator for CBS News. Kim, welcome to SideBar.

Kim Wehle:

Great to be here. Thanks for having me,

Jackie Gardina:

Kim. The presidential pardon power usually gets attention at the end of a president’s term when there are a flurry of pardons, some of which are controversial. President Ford, pardon? President Nixon, president Carter issued a blanket pardon to all men who refused to be drafted in the Vietnam War. Bill Clinton pardoned his brother Roger. President Trump issued pardons for Steve Bannon, Roger Stone and Charles Kushner, his son-in-law’s Father, you’ve explained that like all discretionary authority, the pardon power is only as virtuous as the person who controls it. It can be a righteous tool to remedy wrongful convictions, reduce excessive sentences and recognize extraordinary rehabilitation, but can also be used to obstruct investigations, benefit political allies and reward people for paying the president’s friends. So are there any actual limits on the President’s power to, pardon? Are there any standards or guardrails to limit this power

Kim Wehle:

You outlined? I think Jackie very well the three primary uses of the pardon power, and I would argue two of them are legitimate and grounded in history that goes back to the code of Uraba and also to the Bible. The famous passage where Jesus and Baras who had been accused of murder were put before pious Pilate and the crowd could choose which to pardon and they chose Baras and Jesus Christ was crucified. It is foundational to justice and the reasons are twofold. One is mercy. The idea being that the criminal justice system sometimes dysfunctions and certainly at common law England, there was no established code of criminal procedure. There were no constitutional rights. There was no right against warrantless searches and seizures or privilege against self-incrimination, and a lot of even petty crimes were punishable by death. So the idea is first of all, you need a strong pardon power in the monarch to remedy gross injustices that the system itself allows to fall through the cracks

Mitch Winick:

Following in the footsteps of the long history and tradition of pardons that you’ve just described. Article two, section two, clause one of the US Constitution states the President shall have power to grant reprieves and pardons for offenses against the United States. This is such a broad and undefined power that has such a high risk for abuse. Why have there not been challenges or restrictions placed on presidential pardons?

Kim Wehle:

The reason we don’t have much more on that frankly is that there just haven’t been many cases that have made it to the Supreme Court.

Mitch Winick:

Kim, if I understand it correctly, for about 125 years, the process has worked with there being an advisor to the president on clemency in the Department of Justice’s office of the Pardon attorney. They normally review the requests for pardons, but as we saw in former President Trump’s era, he bypassed the OPA granting 212 out of his 237 pardons directly to individuals that have been described as well connected offenders who had not filed petitions with the pardon office and did not meet its requirements. He has now claimed that on day one of his second term, he would free all of the January 6th defendants releasing them from prison, allowing the hundreds of defendants to now reclaim their right to own guns. We’re talking about about 900 convictions or guilty pleas out of 1200 arrests. You’ve studied this pardon process. Has there ever previously been such a direct politicization of the pardon process as a major issue in a presidential campaign?

Kim Wehle:

Certainly not in recent memory. I think probably never because we’ve never had a campaign like this, we’ve never had to use the Department of Justice for retribution, prosecutions and investigations. I mean we can go on and on to dismantle the Department of Education to take away the independence of the Federal Reserve to even potentially use the insurrection act against peaceful protestors. I mean it really is a dark portrait of government that has nothing to do frankly with democracy. So this idea of pardon as the prerogative of a king like President, it’s inconsistent with history as well as the norm across the country, and I should say even King George iii against whom the revolutionaries fought a war. King George III shared the pardon power to some degree with parliament, with the clergy and also there were pardons that were recommended by judges. Again, there’s this mythology and as you point out Mitchell to say, listen, we’ve never been in this moment where a president promised to use the pardon to entrench his power underscores how vital this discussion is, and if he does do that, which I think he probably will have a private militia that it’s armed and loyal to him.

There also were six members of the United States Congress who asked for pardons in connection with the January 6th insurrection. We have the president’s now criminal immunity that the Supreme Court manufactured really out of thin air and in a way that’s contrary to the plain language of the Constitution that I’ve argued in a recent piece for the Hill, a president who’s hell bent or heck bent on entrenching power could just promise pardons and get a cadre of people within the White House to commit crimes at his behest and effectively enhance the belt and suspenders of immunity to cover criminal enterprise in the Oval Office and say, listen, I’ll pardon you on the last day in office, so once you commit the crime, I’ll pardon you, I’ll promise to pardon you once you commit the crime. I mean there’s always various ways this can be achieved and in addition, the Supreme Court said that motive a president’s motive in using a power like the pardon power is off limits even for discovery, even for a subpoena, even for a deposition or finding out, so we might never know what deals are being made. It’s extraordinarily serious when you look at the immunity decision next to the pardon power, we are really, really talking about amending the Constitution in a way that I would argue you could not do except for a revolution in the United States, but the Supreme Court has managed to do it in conjunction with the Republican party as we know it in 2024.

Jackie Gardina:

I was exactly going in that direction, which was to talk about that piece you had in the hill called a frightening thought experiment, a murderous president with criminal immunity, and I just want to make sure the listeners understand what you’re talking about in the context of that decision. You argue that obviously a president couldn’t pull out a gun out of a personal bag and shoot someone that he could be charged with murder, but a president as part of his core powers could instruct a law enforcement individual to kill someone. The president would be immune because it was a core power within the presidency. He could pardon the law enforcement officer or other person who did his bidding thereby essentially immunizing anyone involved in it. There’s been a lot of talk about what if in the immunity decision and there was significant speculation about whether the president could now take a bribe for a pardon without legal recourse. Some legal scholars argued that the president could still be prosecuted for taking the bribe. Others argued the immunity decision shields any prosecution for bribery. What’s your take on that argument?

Kim Wehle:

I think that framing of the question, which is exactly the right question, most people are asking needs to take a step back and that really the question is if you take those two powers together, you take the power that Supreme Court just gave the president and you take the part in power as I think it’s vastly overwrought, what is the incentive for a president not to commit a crime? The problem is the commission of the crime, not the prosecution of the crime. We have to ask ourselves, what’s going to happen when someone gets in office? Where’s the ticket for speeding? Where’s the red light that is going to catch a president and a president’s going to say, whoa, I better not do that because I’m going to get in trouble. That’s really the bigger problem.

Mitch Winick:

We are going to take a short break and when we return, Jackie and I are going to continue our conversation with Kim Wehle, law professor, news commentator and former counsel to the president. She’s also the author of Pardon Power, how the Pardon System Works and Why

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Kim Wehle:

The possibility of a prosecution has always been remote. That is, if you remember before Donald Trump was indicted in New York by Alvin Bragg, the public debate was it’s unthinkable to indict a former president. Are we a banana republic? You can’t imagine that would be unseemly. That would degrade the office certainly with the two Jack Smith indictments, Mar-a-Lago and January 6th, it would’ve been, I think malpractice and I know there are probably people who disagree with this to not look into those because people died on January 6th overturning an election illegally. I don’t think anyone really seriously argues anymore that Donald Trump won that election and then of course the classified documents, presidents under the Presidential Records Act don’t own those classified documents the American people do and it wasn’t just taking them, it was then hiding them. I don’t think there’s facts that are disputed and I just want to underscore one thing too.

We don’t know what happened to that classified information. There were files that were empty that said classified, we know they were in the bathroom, they were on a stage. There were hundreds of people in and out of Mar-a-Lago. We in this moment do not know what damage was done so we can hypothesize we were ever to get to the point of a prosecution. Could a prosecutor prove bribery? Could a prosecutor prove a quid pro quo for a pardon? I think if we get to that, that’s a triumph because I think there’s going to be so many barriers to even getting the evidence and then with this gloss, the Supreme Court’s put on it, they’re going to know it’s going to be so hard to prove anything, so that’s my first point. Pardons for bribes based on what the Supreme Court did, it’s open season on there now would the court change its mind later? I think it probably should, but in this moment there’s no disincentive to not do that.

Mitch Winick:

Let’s go to the end of this. Let’s assume that there is a circumstance where something does meet all of these tests and you have convicted a president or a former president. Now we get to the question of can that person then subsequently pardon him or herself before the Supreme Court’s immunity decision? I think probably all of us thought this was a total fringe argument. You wouldn’t even use this in a law school hypothetical because it didn’t seem to be meaningful enough to go down that road, but after the immunity decision, I think a lot of us worry now that there’s a majority of the current Supreme Court that would find self pardon, entirely constitutional. What are your thoughts about that?

Kim Wehle:

Well, this Supreme Court I think on unfortunately is probably going to lean towards a Republican president in any case, and I say that very deliberately and I know that sounds partisan, but the court did not give any indication of what would be unofficial conduct in the opinion. It said this stuff is official but found nothing around January 6th. That’s unofficial I think, which leaves open the possibility that if they see a crime they’re comfortable prosecuting against a former president, we still have wiggle room to go in the unofficial conduct bucket, so that’s the gloss. Unfortunately, this Supreme Court I think is lost its legitimacy and it deserves that and really there should be some serious oversight by Congress on a self. Pardon? I argue in the book that a self pardon would be antithetical to the rule of law and the idea that nobody’s Above the Law and the idea that we have a system of separated powers and checks and balances. I’m not willing to give up on that, but to your point, if you say the pardon power is absolute and you’re pardoning yourself under the court’s opinion, you can’t even second guess that decision.

Jackie Gardina:

What we’ve been kind of talking about is what kind of checks on executive power have been eroded or lifted, and I want to pivot to Judge Alene Cannon’s decision to dismiss the case against Trump because Jack Smith’s appointment violated the Constitution since Watergate for a period of more than 30 years. Special prosecutors, independent counsels and special counsels, we’ve had different names for them, have all been used to investigate alleged presidential misdeeds or executive power overreach and Ben, an additional check on presidential crime sprees. Do you see Canon’s decision gaining traction in other courts and perhaps more importantly the Supreme Court?

Kim Wehle:

I think if it went to the Supreme Court, given that Justice Thomas wrote a concurring opinion basically suggesting was unconstitutional, there might be some more energy on the court. It’s impossible to know it’s possible. He’s a one-off. He did not need to write that opinion. It had nothing to do with immunity and the Supreme Court went out of its way to say it’s immunity thinking was not about January 6th. It was about immunity more broadly, which I would say is outside the scope of what it really should have done, which is narrow itself to January 6th, but that being said, there are a lot of flaws in that decision. It flies in the face of a couple Supreme Court cases that suggested otherwise it’s problematic, but the bigger issue is I think this court is completely comfortable identifying how it wants to rule and then finding reasons to rule that way. It’s a fair assumption that if that were to come up to the Supreme Court, they would side with her.

Mitch Winick:

We are going to take another short break when we return. We’re going to discuss another area of Kim Wale’s expertise voting. Kim is also the author of the book, what You Need to Know About Voting and Why

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Mitch Winick:

Well, this is a perfect transition because the point you make is that so many of these things we just discussed, the use of the Pardon power, the use of the Justice Department, the appointments and decisions of the Supreme Court perhaps more than ever before is going to be significantly influenced by the outcome of the 2024 presidential election. So you have also studied and written about voting and how important voting is and how it works. What I’d like to start with is something that I believe surprisingly enough many of us do not understand, which is that when we think we’re voting for an individual candidate for president, we are not. Could you simply explain why we ended up with the electoral process and what votes are we really casting when November comes around and we’re looking at who should be the next president of the United States?

Kim Wehle:

Well, the framers of the Constitution we’re worried about what’s known as populism. The idea of if you just count up all of the people that are for one candidate versus another candidate, you could have the people vote against their own interests because even back with horses and buggies, bad information traveled much faster than accurate information. Of course, we now live in a world of misinformation and disinformation and my friends who are deep experts in voting and election law say that’s the number one problem for November of 2024 is the bad information, so that’s number one. So that’s why we have a representative government that is, we’ve got members of Congress who make laws for us. We don’t just say, here’s a law, we all vote on the law. That was the concern. The idea if you have a layer of representatives in between, then there’s someone that can make a sober more measured decision for you, and the electoral college does a similar thing.

That is when you’re voting, you’re voting for electors representatives to the electoral college, which is not a place, it’s a concept. You could say the electoral panel and then they vote for president based on what you tell them to do. Essentially. There’s also a concern that the more populous states, the states that were bigger and more people in them would outweigh the voices of the least populous states. How many electors you have to the electoral college is determined by population and the census. California will have more than North Dakota, for example. So when you go to the polls, you are voting actually for a slate of electors that are determined in various ways according to state law, but usually by the party and then they go and vote. In theory, they have independent discretion. However, this is the other thing I think people don’t understand. The way the electors vote is dependent on state law, so the state legislators just like Congress, they go and they pass laws to say, how do we want our electors to vote? In all but two states, it’s what’s called winner takes all.

Jackie Gardina:

Kim, given what you just described about the electoral college, I think one of the things that is confusing to people is this idea of the theory of the fake electors. How was that going to work? Why was it going to work and do we have any checks in place that could prevent that from happening again?

Kim Wehle:

There’s a process that the federal law sets forth under what’s called the Electoral Count Act, so the states decide how their electors are supposed to vote. Winner takes all who the electors are. That happens in November. Then that gets finalized in December, and then those slates go to Congress on January 6th and then the vice president counts the slates and then gavels in the new president, the fake slates of electors were fake electors that were not the proper electors under the state law, and they made up fake ballots that were not consistent with what the voters voted and what the state law required them to do, and the idea was, okay, it’s pretty sinister. We will send two slates of electors to Congress in January. We’ll have the real one that was resolved in December and then we’ll have a fake one and then under the electoral count act, if it’s a disputed election, members of either house can challenge that and then it would go to the Congress who would then decide the presidency In 2021, the quorum required to decide the presidency favored the Republicans, so the idea was, okay, send the real one and the fake one members of Congress, as I said, some of whom asked for pardon for in on this scheme potentially they wouldn’t ask for a pardon if they thought they didn’t need one and they’d say, oh, golly gee, we don’t know now we are going to contest it and then we’ll vote the president that we want.

It is illegal at the federal level and at the state level to fraudulently vote. When people run around talking about fake elections and voter fraud, it ignores the fact we already have very stringent criminal laws for fake voting. It’s also for the same reasons against the law to then count those votes in a fake way, create a fake ballot for the electoral college and send that fake mega vote to the United States Congress in January of the next year. That’s what happened, and there have been many people including the former president who have been indicted in connection with that scheme.

Mitch Winick:

Kim, one of the things I worry about, and I thank you for that description because I think it helps everybody understand, but there’s I think a legitimate concern that should the former president be reelected, he starts out pardoning people, but if nothing else, it would most likely disrupt any and all of these indictments. I know he doesn’t affect the state level indictments, but it would seem like the wind would be out of the sails to pursue these even at the state level, and does that potentially leave us with laws on the books that say this behavior is illegal, but no actual history of people being prosecuted and convicted under them.

Kim Wehle:

I think what this does is say the Supreme Court said that it’s illegal for everyone except the president of the United States. The court did say there might be unofficial acts in the communications with state level officials. It wasn’t willing to say it was an unofficial act. They’re basically making themselves the ultimate constitution and they’ll tell us what the constitution says when it gets to them, so it’s possible. The Georgia election interference case chunks of that would still be prosecutable, but the famous call where he had his close advisors on the call and called Secretary of State, Brad Raff Asperger and said, find me 11,871 votes. He’s asking for fake votes, illegal votes because Raff Asperger said, listen, we’ve audited this two or three times. We don’t have ’em. If he did that as part of his official duties because he was with his advisors, that would not be prosecutable, but again, the courts left open the possibility that the six unelected justices get to decide that for everyone forever based on a standard they manufactured that doesn’t actually exist in the constitution, so it is really problematic in a lot of ways, and I know this is disheartening and scares people, but we’re educators and I don’t think we can turn the tide at all if people don’t understand what’s going on, and that’s step one.

If you refuse to see and hear the evil, there’s nothing you can do to stop it. I think we do need to do something about it.

Mitch Winick:

We are going to take one final quick break and when we return, Jackie and I are going to continue our conversation with Kim Wehle, author, law professor and news commentator

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Jackie Gardina:

Just to create an even more dystopian hellscape. One of the reasons it seems that we relied on a lot of virtuous actors following through on what their duties were at the county level. We need the counties to certify the votes, and I know there was a couple of counties in Arizona and other places where they were refusing to do that. We’ve had some elections for Secretary of State in which people who believe in the 2020 election was fraudulent, were elected and many who were defeated. We’ve got part of the fake elector kind of scheme involved people going to state legislatures and say, you have the power to choose where the electors go, even if there’s some confusion or unknown around whether or not your election was fraudulent, you’ve got some power, and then we had Vice President Pence who said, no, I I’m not going to get involved in this. It’s a ministerial act and that’s all I’m going to do. It seems like virtue is what stands between us and the potential unknown. You

Kim Wehle:

Went through a lot, but I mean I think you’re right that at the state level there are people that are election deniers that are now in the position to basically thwart the vote. If it’s not for Donald Trump, that is a real problem. How you get around that, it’s hard to say. People have asked me if I could change one thing about the constitution, if I had my magic wand and I can do one thing in the Constitution, I would put an affirmative right to vote and have your vote counted. If you’re a citizen of the United States, there are parts of the constitution that say you can’t ban someone for voting based on their gender or ban someone for voting based on their race, but there’s nothing that says your vote gets counted, and that’s why all these cute maneuvers, and I put that in quotes are happening. Lawlessness is bad for everybody. It’s really bad for everybody, but I couldn’t agree with you more Jackie, and I say this over and over again, what stands between us and tyranny really is electing people with integrity. You use the word virtue. I use integrity. That is it with this kind of power that should be the primary criteria, Republican, democrat or independent,

Mitch Winick:

Kim, you let us write to the way we like to end each episode, we like to ask our guests to provide recommendations how each of us can positively contribute to solutions that support democracy, our justice system, our definition of civil society. As we’ve talked about on this episode, many of us are concerned that elements of these principles are currently under attack in this country, but as we continue to progress through this upcoming election cycle, what suggestions do you have to us as individuals about the role that each of us as citizens, voters, community members should and can take to support and defend our democracy?

Kim Wehle:

Number one is educate yourself and be very scrupulous and exacting about the information that you get online. A lot of lies out there and the algorithms try to make us think a certain way and I’m going to plug not only my constitution book, my voting book, but I also wrote a book called How to Think Like A Lawyer and Why, which to Jackie’s point really tries to sets forth a five-step process for thinking about things in a skeptical way for identifying what your value systems are for understanding. You’ve got to compromise. Lawyers have to, when they go to court, they’ve got to imagine their opponent’s best argument and imagine if we engage in people we disagree with that energy, I’m going to assume this is a good person and I’m going to try to construct in my mind the very best reasons for why they take a position that they take.

I’m going to give them the benefit of the doubt, so I think it really starts with a mindset and education absolutely critical. The second of course, vote, if you’re listening right now, log in to your secretary of state or your election office for your state and make sure you are registered. Make sure that all of that is done and encourage your friends and families to do that and the big picture, I do think we have to change our elected officials to start to put common sense laws in place that matter to Americans. Identify who are your folks that make decisions for you in your local communities, in your states and at the federal level. Send an email, give a call. They do listen to those things.

Mitch Winick:

Thank you. That’s a wonderful wrap up for this episode and gives us hope, which is what we try to instill in each episode. We appreciate your time. We appreciate the writing you’ve done and the speaking you do on these topics because they’re so important to the things we all believe in. Thank you very much.

Kim Wehle:

Well, thanks for having me. I’ve enjoyed chatting with you. Thanks for being on the show, Kim

Mitch Winick:

Jackie, this interview with Kim Wehle was great because she’s such an authority on issues such as the pardon power of the presidency and the process of voting. There was a lot of what she suggested is a bit on the dark side and concerning, which is one of the reasons we want to talk about that on SideBar and really is alarming that this is our worst fears perhaps realized. On the other hand, as we’ve asked and received from many of our guests, when you step back from it, she was still very hopeful and said, the system does work. The process is there, the Constitution is there to be applied, and that if we pay attention, get involved and do our part, it isn’t quite as dark and doom as we might sometimes fear.

Jackie Gardina:

I’d like to say I agree, Mitch, but I’m struggling right now because there was an awful lot in our conversation with Kim that just left me a little bit breathless. There’s a couple of things that stuck out. One, how absolutely important the 2024 election is at the school board level, at the local level, at the state level for the judges we might be voting for and at the presidential level as well in Congress. What’s important about the election is not just that we vote, but that we’re voting for people of integrity, as she said, or as I used, that have virtue and that are invested in keeping our system of government operating as intended rather than seeking to amass power to push through an agenda that may not be and isn’t supported by the majority of Americans. I was really struck when she said how the Supreme Court is participating in dismantling much of the guardrails to the rule of law that we’ve held so dear and I was really struck by how strongly she felt about the Supreme Court’s recent decisions and the effect that they’re going to have on executive power and our democracy as a whole, so, so important to get out and vote.

Mitch Winick:

I like the fact that you highlighted the court again as many of our guests have because it’s a reminder that this election isn’t just about who’s going to serve as president or who will be the next term for our senators or our congresspersons. Those are the people who end up deciding who’s going to sit on the Supreme Court and it’s very likely there could be several vacancies in the next president’s terms. Certainly if a president were to serve two more terms and that these votes we’re taking right now, this election cycle don’t just affect the policy of a party of Republican versus Democrat, but deeply affect the long-term effect of our courts and the policies they apply as they interpret the Constitution.

Jackie Gardina:

Once again, I want to thank everyone who joined us today on SideBar and as always Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

Mitch Winick:

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Jackie Gardina:

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