Though there's not lot of political power around the issue of pardon. It's actually an important issue for democracy itself. I'm Bert Cohen him with your help. We are keeping democracy alive. He's not breathing. Barely. Democracy is an action. For it to be strong, it needs exercise when anti democratic constraints, are arbitrarily shack to it. We become less of a republic and more of a system which America has fought to prevent our legal system exists to do justice, of course, but the regrettable truth is that it has been corrupt did in all too often exacerbate injustice. Though it is too often buried in the massive amount of weeds that make up a presidential election, the topic of pardon carries enormous implications for democracy, how so. Unless we personally know someone who has been affected by the criminal justice system, chances are... We never think about this. Often unjust aspect of our justice system. How is the power of the pardon an important factor in the 20 24 presidential election? Well, we're gonna talk about that today With us today on keeping democracy live is Kimberly Whale, an expert in constitutional law. And the separation of powers with particular emphasis on presidential power and administrative agencies. She's a tenured law professor at the University of Baltimore school of law, and a legal comment for Abc News, Kim Regularly writes for Political, the Atlantic and the Bo among other public patients. She was an assistant Us attorney in Washington Dc office and associate independent counsel in the white water investigation, it must have been fun. She's author of the books what you need to know about voting and why how to read the constitution and why and how to think like a lawyer and why. And a a common sense guide to everyday dilemma her new book, which is to be published in September is titled pardon power. How the pardon system works and why? Kimberly, thank you so much for being with us on keeping democracy alive today. Thank you, Bert for having me Really happy to be here. Well, what what prompted you to write this new book pardon power? Why is it needed? Well, you know, why is the word? Obviously, that comes up again, and again, in the titles of my book. And this was 1 actually that, the particular publisher asked me to write having red to first 3, with the idea being that it's just... It's this monarch like power that we have lingering in the constitution, that is widely misunderstood somehow, you know, having no restraints, and it is 1 now in where as we sit that a 1 of the 2, primary candidates for president, on as part of the presidential platform is using the part and to justify election, and that would be Donald Trump promising to part in the over 1200 people that participated and were engaged embroiled in the criminal justice system by virtue of their participation in 01/06/2021. Yeah. The the attack on democracy itself. It really really was. And he could abuse the pardon power and the pardon power can be abused. Interesting you say monarch like power. There it it does go back to that. Doesn't it? I mean, why... What is the the monarch... Monarch article, that's a hard word to say, beginnings of the idea of a pardon. So it goes all the way back to the famous eighteenth century B c, Babylon texts known as the code of Ham lobby. Which is 1 of the first examples in human history where a ruler laid down some laws and punishments for laws. And when that happened, the code also provided ways in which those punishments could be lifted. People could earn pardon for their crimes, kings would declare pardon for certain individuals in part in just, basically in different ways wipes out the crime. So you go through the entire process as a defendant to get a conviction. And then it gets essentially forgiven. And in Common England, of course, the revolutionary awards was thought to throw off the yoke of Monarchy under the British Monarchy, The, you know, the Colonists didn't want that. They wanted no more kinks. They wanted to rule themselves under British common law, there wasn't a code a criminal code necessarily. So. So people were punished in arbitrary ways and the idea behind the pardon power in part was to allow the monarch to to exercise mercy. There a lot of crimes were automatically punishable up by death, for example. And there wasn't what we have today under Us. There wasn't the fourth amendment, to the fifth amendment, the 6 amendment, all of these protections for criminal defendants, to process to make sure there was fairness. And so 1 primary rationale for allowing a pardon is because just the criminal justice system becomes unfair and certain people get, caught in it that really should be shown some kind of... Care and mercy. Yes, indeed. And I the we need to define terms I think. I mean, there's... It's not just... Anne null a conviction. It's... What what exactly is a pardon defined terms? Well, there there are 2... 2 kind of primary categories. 1 is the part in itself and 1 is would be a comm connotation. So part really means that you are... You take your criminal conviction, your criminal history off your record. So it is to some degree, like, it doesn't... It never existed. Now that varies depending on the state because there are state pardon ins or federal pardon ins, their pardon ins in most countries across the globe. So there there are in, you know, slight variations on the extent to which your part a party would wipe away a conviction. A comm computation is a form of a pardon in, but it just changes your sentence. So a president could commute a sentence. You're there for life. You've served 5 years say, okay, you can you can leave federal prison. I will commute the ends or commuter sentenced to death to life imprisonment mint, for example. Those are the 2 primary categories of pardon ins, and they fall within the bigger, rubric of the word cl. So cl could includes part ins and comm mutations. A comm computation, you still have it on your record. Right? The crime? Right. A comm computation you'd still have it on your record. It's just you to have some kind of change in your sentence. And they're also... There's a history of post pardon ins, pardon ins that are. That are granted after someone's passed, and those would be to to basically clean someone's reputation, if someone is, you know, wrongfully convicted by a racially biased jury, for example, an African American male, wrongly convicted years later, a president might pardon post, that person so that to his or her, criminal record and and reputation would be rehab after death and perhaps the most well known and controversial pardon was when president Gerald Ford in 19 seventies, 6, I believe it was, or maybe 75 actually. Pardon his predecessor Richard Nixon. The forward to your new book, was written by John W Dean, White House counsel to the president from 19 70 to 73. I certainly remember John Dean, but Perhaps some listeners don't. Refresh our memories, please, for what is John dean famous and what is compelling about what he has to say in your forward? Well, it's there's... The the ford part of Nixon, I think introduces a different category of pardon ins first of. So we talked about mercy and justice being 1 rationale for pardon. The other is known sort of as amnesty. The idea is that presidents need to sort of settle discontent in the country, sort of move on. So they'll they'll issue part in here, of, forward parted Nixon with the idea that sending Nixon through the criminal justice system going to trial, that would just getting intensify and prolong the trauma on the country of Water gate. So John Dean was White House Counsel to president Nixon from July, 19 70 until April 19 73, and he was involved in the cover up of what's known now. It's a water gate stand... Us, scandal. And he subsequently testified before Congress. He plead guilty to a felony, and in in exchange for testimony and he ultimately searched some time in Baltimore and was later discharged or excuse dish bard. But in if, you know, I know younger listeners don't necessarily remember a water gate, but it was basically a plan, orchestrated and part by the attorney general at the time John Mitchell To Ea drop on the the Dnc, the Democratic National Committee headquarters in Water gate and they hired burglar to break in to get... To find out what was happening with the political opponents of president Nixon. Hired John Dean took a custody of some of the evidence found and discussed it with the Fbi director. It was later, some of the evidence was destroyed. And he was later charged by others within the the cover up with, having spoken to Nixon and took and taking a lead role in covering up that that berkeley, as I said, he he plead Guilty to destruction of justice and cooperated. And, ultimately, that whole water gate incident led to the downfall, the rise of resignation of Richard Nixon. So, he also 1 of the first in the administration to to accuse Nixon of being involved in it. So he was pivotal really. To what some see as the survival of democracy in that time of water gay with a corrupt president So he writes in the book He he talks about his role in actually writing, pardon ins of the pardon in for... Teams, Jimmy Hof, who was served 13 years for Jury tampering, bribery conspiracy, Mail Fraud, He was he was part by Nixon and, John Dean wrote that part in, and it was 1 of the first that contains conditions that he wasn't allowed. It a condition of his partner. He couldn't, still be its part of the Teams stores. But John, Dean also talks about how things would have been different in the Nixon era as if the... If the president had the kind of immunity that, that the Supreme court is given him since given, I mean John wrote the forward with the expectation that's what the Supreme court going to do, and he was absolutely right. That is what the Supreme court did. Yes. What the Supreme Court recently did. It's it's absolutely appalling, and you talk about going not wanting monarch article powers, the the United States, the people of America don't want... We wanna democratic republic, and this is quite contrary to that. Before I get to the next question, did did Dean ever get pardoned himself? No. Nope. Dean is was not as of, you know, the recipient of a part in. And the part in system now, as I talk about in the book, there there's a... Process for asking for part, It goes through the Department of Justice, their criteria, but there's also people that just, you know, jumped the line, like, large number of them in the Trump administration, Donald Trump just ignored that entire process part his... Some of his Cro, Paul Manafort, Robert, Roger Stone, people that, arguably participated in in some of the wrongdoing that took place in the first Trump administration, and then after the January 6 6 members of congress that that were, comp in the ins interaction also asked Donald Trump part. So the part in, even before the immunity session by the United States of Supreme Court, the dangling of a part, is has already demonstrated, itself to be an important factor, in in motivating people to commit crimes in the White House. And so, you know, you couple that with immunity in I argue that the pardon power is the shotgun in the closet because now presidents can commit, you know, crimes using official power, but they're gonna need people to do it for them. I and the promise of a pardon in, you you couple that with with the immunity decision, and now we've got criminal enterprises in the in the in the white House potentially that the United States Supreme Court, the 6 are far right radical justices is Supreme court, now green light it is okay under the constitution. It just it's just mind blowing from, you know, from the idea of no more kings. Right? Us Absolutely amazing. And so could 1, d from what you're saying that the promise of a pardon from a president could encourage criminal activity. Sure. I mean, it's... Imagine a president says, okay. So there is the court said there's a difference between official and unofficial acts, unofficial acts are not not protected. So so if for if a president, pulls out his personal handgun and shoot someone that I think would be an unofficial act he he'd be prosecuted that. He's not gonna be so dumb to do that. He's gonna ask, a law enforcement officer to shoot a political rival. He's not gonna do it himself, But the law enforcement our officer could say, listen, you have immunity, I don't. If I actually do this for you, because Sure we've... You know, we've engaged in, a conspiracy to commit a to make... To get a commit murder, you'd be protected. I won't. I'm not gonna do this because I can go to jail. A president could say, listen all part in you and will both be protected. You'll be protected by the pardon. I'll be protected by the Supreme Court's immunity decision. Now, the supreme Court has held that or indicated, that a a crime hasn't yet been committed is not pardon. So that official would still have to make the decision, Listen. It's better. I'm better off. I trust this president. He will pardon me once I commit the crime. I'll get maybe some other kind of goodies, and so he does it, and then the part... The pardon would follow that. It could it it would follow the actual commission of the crime. But the nixon part in is a historical per precedent that a pardon maybe can happen before you're charged. So Right. So there's a there's a... The act of the crime, there's the indictment and conviction and then you think there's a pardon. But this... But the, you know, the language of the constitution is really vague. So all those things would have to be worked out, I should say, But under my hypothetical, that person could decide to commit a crime with the promise of a part end, then we've got some real damage to democracy itself. Happening at the highest levels of power in the United States. And if I recall correctly, as as I think you mentioned that, Nixon hadn't been charged with any crime. It was a preemptive pardon. I mean, Preemptive in terms of, okay, the justice department has an actually charged him with any crimes ford saying, I am pardon him for any crimes arising from water gates. Any crimes that actually could be proven, I am prospective or preemptively pardon those charges. There's never been a supreme court decision that said that is covered by the pardon, So I suppose in theory, if anybody had had had standing back in the 19 seventies, they might have said, listen, That's not a good part, you have to actually wait. Until there's at least a charge pending. There's something to actual actually pardon in besides the possibility of an indictment. But most people treat that pardon as effective, as a matter of history. And so it stands as a historical precedent, maybe not a legal precedent. But, you know what? Everything Bert comes down to incentives under the law. It's less about Okay, What what's gonna happen then what's gonna stop people from doing the bad stuff to begin with? And that's really the problem because we might never find out what they do. We want them. We want someone in the White House to feel like, whoa, I better not do that because I'm gonna get in trouble. You know, I'm not gonna speed this through the speed limit because I might get that ticket. I know they've got the speed cameras hiding on that street, so I'm gonna slow down. Because the camera might get me. There's no tickets for speeding in the White House when it comes to crimes right now, and the pardon powers is a big part of that, because without it, a criminal president would not get people to go along with his directive to commit crimes. I don't know if I've ever heard that phrase before a criminal president, but it fits unbelievable. Bert cohen here for those who just tuned in. The show is keeping democracy alive. We're talking about pardon power. Book coming out in September. Bert with its author Kimberly Whale, the title is pardon power, how the pardon system works and why. Well, the the pardon system was it created with good intentions. I mean, it seems so open to abuse and and you know, corruption. Was there a good intention it originally? Yeah. So as I mentioned back in common law England, the jury trial, was not established until 12:15. And before that, accused people in England often underwent other ways of determining guilt. For example, the ordeal. So it could be more ordeal by fire, which meant walking 3 paces holding a red hot iron bar in their hands or by water, which meant being tied up and thrown into the water by combat, So if you survive, the verdict was not guilty. So in that kind of arbitrary environment, the royal prerogative known as the the prerogative of mercy, which we now call apart. And was really important to achieve justice. And the... There was also... You know, they were corrupt pardon by by bon, you know, pay for, you know, bribe pardon for Bribes, things like that. I mean, that... That's all existed because human nature is is unfortunately, leans towards corruption. If people are given power. But the framers of the constitution just sort of adopted a card in power. 1, not a lot of discussion, but the idea was we do need checks on on, you know, miss justice in the criminal justice. And remember, the primary legal protections under the constitution were part of the original constitution the Bill of rights didn't come till a few years later. So I think it was just sort of understood. There were some discussion that they need to be restraints on Pardon power. But. The overall, the framers just assumed it would be used with integrity. And so it did make its way into the cons without a lot of limitations. The only express limitation anyway. Is that presidents cannot part in impeachment if someone's impeached, that's not part nimble. Would? That's a that's a nice assumption. A little naive to just to think that it be a pardon would only be soon with yeah good intentions. Yeah. I suppose it could happen. But as as you can... I mean, as you say, you all, the human nature, yeah corruption is easy to do. It's very easy to do it very tempting. And there, of course, politics involved here. Obviously, at the national level, but I wonder about at at state level. If governors have similar latitude and then I I referred to a case here in New Hampshire, where Pamela Smart back in the eighties, I think it was, Had her, boyfriend, her husband killed actually. She had her husband killed because she was having an affair with the, somebody else. And the actual people, the young man who did the killing have gotten out of jail. She has not gotten out of jail. She's been in jail for over 30 years, I believe, and I'm not sure if she's asking for a pardon or just cl, but it would be politically a third rail if the governor ever, pardoned her, and she didn't pull the trigger. But, the other people were let off, she was not. And I wonder about what kind of latitude governors have, not just presidents. Yeah. So Greg Abbott famously are this year also pardoned a black... Met lives matter protest in Texas, who is killed in connection with that protest, part in the person who killed him. So... Yeah. Sure. Pardon ins are also used politically to get votes And, you know, I would argue that with a criminal justice system. Right, which is designed to make sure the facts, are accurate to... Design to make sure no one's convicted, except beyond proof with proof be on a reasonable doubt. Like, with those checks and balances in place, maybe pardon aren't necessary. And if they are so necessary, the answer is not to give this unilateral power to a single person, but to fix the criminal justice system and make that more fair. Under state laws you indicate, it's really varied. There are many, many more convictions you know, criminal convictions under state laws and under federal law. Mh but there aren't the... There are not the kind of unilateral power in governors that there are, in with the president. So 22 states, the the governor shares the the pattern power with a board. Yes. You know... Some states there has to be, like, in Georgia. You have to have already served your sentence before you're eligible for a part. That that they have to, The a committee in some states has to issue a pardon with... In many instances says, no involvement at all of governor, un... You could you could argue on the 1 hand that makes the pardon power less arbitrary. On the other hand, you could argue listen. It's super arbitrary that wherever you get, you know, tied up in your, the criminal justice system, you could be in 1 state and you could to have the opportunity for part in and another it's close to impossible. So it creates this patchwork, of fairness across the country. And, again, in the book I asked like, do we really need it? What is it doing? And if it's if it really is there for justice, why don't we fix the system itself? So for example, it seems to me, that, you know, people that are on death Row based on bad evidence that could... They could be exon if they were given... The d... They were you... Dna evidence, there was a test that could exon them based on the science of Dna. To me, it seems like Okay, the president could use the the pardon and power to to to... In federal funds to test everyone on Death Row, And those that are wrongfully on death row, you've used the pardon power to adjust for the fact that at the time they were convicted, they... We didn't have the scientific. Expertise that now can leave beyond a shadow of a doubt that certain people are innocent. To me that would make sense. Right? But it's not used really, across the board for that kind of justice. It's used as you indicate, you know, to to to hand out favors and there've been some very, very disturbing pardon, particularly under trump administration. Yes, indeed. They certainly have been. And I wonder about the proportion, if we look at the population of our prisons in America, just break it down, white and people of color. And it's... Well, hugely, you know, much many, many, many more people incarcerated people, happen to be people of color. I wonder how that relates to whether or not pardon are given. I mean I wonder if it's proportional to those to the numbers that of of incarcerated people, you know, given that there are more black people in jail, than white people, are are there more pardon have there been... Is there data indicating that, whites get pardon more often than black people? You know, I I don't have those those Mh. Numbers at my fingertips. But as you indicate, sure, absolutely, there's a massive disproportionate incarceration of people of color. And pardon ins, I believe, are proportionate to that. That being said, you know, it's not the high profile har ins, the ones where they're lobbyists when Rudy Giuliani was running around. Selling part ins allegedly. They're... You know, Jared Kushner was the top person within, justice or, president Trump's White House managing pardon and Trump C father, Kim Kardashian pulled her influence for for pardon. So so pardon ins do... I would say, you know, there's a there's an argument that that they're about access and access free people with to largest 10 consent with power money and that doesn't tend to... Tend to be, people of color in the United States. True. The but but, you know, it it could be used for good in theory, It across the globe, in other countries, the fact of Covid itself led to approximately 6 percent of the world's population being pardoned just so that, you know, they weren't gonna going to get sick and die in prisons. So it can be used in a way to, address prison over and to address address other kinds of injustices. It's just not used that way in the United States routinely, although, you know, joe Biden carter thousands of people convicted of marijuana crimes, and it still happens but there's not really a rhyme or reasons or a theme behind it. And, generally, we try to do things with some consistency under the law, at least when you're talking about putting people. Behind bars and and the process of inviting, trying, convict and sentencing people. Yeah. It would be nice if there were some... Consistency and, you know, rules that the same rules apply for everybody to equal justice under the law. What a concept We ever heard that before. It doesn't quite always work out that way in real life. So if the orange 1, the the former guy were to regain the presidency. Could he potentially just exon or pardon the hundreds who attacked democracy in 01/06/2021. But and would that be the final word or would there be any possible remedial action? He could. It's long as they're federal crimes. I think that's another limit on the pardon and power. Right? At least under the text of the constitution, it says offenses is under the United States. And so to the extent to which any of these folks have been separately prosecuted by... At the state level, not I'm not aware of that being robust, process. But to answer your question, sure, you could do it. He could definitely do it. Now what what would be the what would be the response. It to get to federal court challenges, you would have to have what's called standing, and I don't think a a regular citizens that could go in and say, pay that was unfair. Maybe another another person who's incarcerated could go to court and through a behaviors petition or if they still had a direct appeal available and say listen, as a matter of due process as a matter of fairness under the law, I should get a consideration for a pardon because my my factual record is very similar or even more sympathetic, then these ins is, in fact, I didn't try to overturn, a legitimate election by force. I... The Supreme court is never entertained that kinda challenge. And you process challenge and I think for sure with this Supreme court, this it it would probably fail. That's not to say, Bert that Congress couldn't come in and make... And try to make some adjustments power and see if the... With the laws of transparency, laws of fairness, some kind a criteria, that that would maybe that would maybe that would get through. It's hard to say in in hypothetically objectively, or a new president, a new democratic president could decide for him or herself to use the part... Establish new precedent using the pardon power to change expectations that it's going to now moving forward, not be used for corruption, but be used for fairness and am and to heal the country, and I'm gonna make a big deal out of it, and I'm gonna make everything public, and I'm gonna give my justification for it, and I'm gonna establish a new precedent for use of the pardon power legitimately, but that's not a legal, argument. That's that's a matter of integrity. And as I've said in many contexts, Bert, I think at the end of the day in 20 24. We want a fair government. We got to elect people that have integrity and and act on virtue. 1 would hope so. For those of may have just tuned in and Bert Cohen here, the show is keeping democracy. See live, our guest is Kimberly Whale, who's got a new book coming out called pardon power, how the pardon system works and why? And way you're talking about a a new different president, somebody who was not Trump. Could... Make reforms in in the pardon field. I don't think that would be a winning political issue. I don't I don't know if if, you know, pardon pardon are even on the radar of most voters. I would think probably not. But once he or she becomes president, then there is that opportunity, to make those changes. And and I guess Congress could could make some changes as well in in the pardon system. Correct? Well, you know, this the Supreme Court given the immunity decisions decision could strike down any efforts by Congress to... Rest restrained the part and power because the court used the majority used very broad language and discussing the pardon power is being an absolute power. But Congress could create a cl board, for example, and put presidential appoint t's, with a range of experience this happens in other parts of the world where people that are recommending cl aren't like the what we have now, took Department of Justice, the very arm of the government that touch somebody in jail, You might have. Religious leaders so you know, experts in psychology, you know, other kinds of people that make recommendation. So the... Maybe the president you could put that in place, the president could reject, those, but we would at least have a, a more transparent, a plural system. And I would also suggest records of the decision, again, this is harder now under the immunity session because the court said that the motive behind the exercise of this power is now off limits. So maybe if Congress were to try to say listen, let's... We wanna know who you talk to and why this part capital we wanna know, did anybody along the line, lobby the part in who's got paid to lobby the party and because they have access to you. That kind of thing. And maybe Congress could put bands on that lobbying activity. It wouldn't necessarily impact the president. You say, okay, It's not constrain the president's power. But just like there's other lobbying, restrictions, say, you can't be lobbying for partners. Who knows? So also, they could establish, criteria to consider for mass pardon. So, you know, sort of limits on the part and power maybe, people would be it wouldn't be a politically, you know, terrific argument, people did not like sort of crackdown. On policing, for example, the people, Democrats sort of, got some heat for that On the other hand, we do have a severe problem, the criminal justice system. And there are others that wanna sat. See some reform, Congress could use the part as a a reason to maybe at least consider more widespread criminal justice. Reform because it costs American taxpayers a lot of money to try and put these people in Jail for long periods of time. I don't think people how many tax dollars go there. Mh. So I I see it as an opportunity to have a broader discussion around some of these issues that are in deep need reform. Oh, absolutely. And I I hope to do a program looking at the system of incarceration and the how effective it is or is not in terms of, corrections of a bad behavior, and if it really fights against crime effectively. But we... That's a that's another subject for another day. But we, of course, referred to the the decision of the 6 right wing members of the Supreme Court who issued that incredible presidential immunity ruling. And the in so doing, some could suggest that they practically invited future presidents to commit crime spree. Now there was no pardon involved? But how does that ruling relate to the discussion of the power of pardon? The power pardon... I I guess if I'm correct, was cited to justify this sweeping new king like authority. Yeah. It was cited multiple times as an example of what would be absolutely immune from any criminal justice scrutiny. So anything that's black and white in the constitution, the commander and chief power, the power to take care that the laws are faithfully executed, the power of the part... I mean, it's really exactly the kind of power. We want to have oversight over. It's the stuff you can really abuse that the court has now protected, and the kind of power... I don't really care about. You might not care about. I mean, I don't care if a president you know, lies in a private deposition in connection with, a messy divorce. You know, that doesn't affect my rights in my and and the future, of democracy for my children, it does impact my rights in the future productive democracy for my children. If the president uses the military as part of his commander and chief power to start arresting peaceful protesters who are exercising their first amendment rights. That is a problem to me. So so I see the the Supreme Court at at getting it exactly wrong. It should be the official x that don't get on protection, not the unofficial x. But that being said at oral argument, both, I think it was justice gorsuch and Justice Ali talked about the pardon power as a high... In a hypothetical way. Say, Well, listen, if we don't... If we don't give immunity to president, they'll just pardon everybody on the first day of office and commit crimes anyway. We might as well give them immunity, so there's no incentive to abuse the pardon power. I mean, it's a very tortured reason. Recent line of reasoning. And as I suggested earlier, I actually think it's made the pardon power more nefarious because now the president's can say, I'm off the hook. But how do I get you off the hook for me to use my commander and g power to ent my power to my political enemies, etcetera. I need people to go along with my orders, and the only way to do that is to pardon you. So I think the pardon power is now, become, a, you know, a real thorn in the side of democracy that we're gonna have to talk about in a more robust way. Oh, we are. Yeah. You can picture. Commander in chief or using the military to to suppress free speech, and that's a that's... I mean, the the name of the show is keeping democracy alive, which we actually picked before Trump became president amazingly enough. Who knew. But, you know, that pardon really are more tied to the practice of democracy and justice, then then most people realize it it seems to me. And it seems if I heard you right, the the Supreme Court protected, the power to abuse the justice system itself. Correct. Wow. They specifically said in, you know, AA1 place that is protected would be talking to an attorney general. Now, you know, as I say to my law students, I've been teaching off for a long time. And I don't think students will come in into to to law school really understanding the difference between government power and regular citizen power to use a very basic example. If I were to put zip ties around someone's risk behind their back and throw them in my car and lock them in the back seat, that would be a kidnapping. I would go to jail for that if a police officer does that, that is an arrest, and the person with the zip ties in the back seat, even if innocent, would then have to hire lawyers or get a public defender, which varies state by state some of them our way overworked and try to dis disprove that they did something wrong. And if you're poor in America, you could even be put in jail with... And cannot make bail, you could serve that you're in higher sentence without a single piece of evidence, justifying you being thrown in the back of a car with zip ties. So you look at that from the president standpoint. Right? A president has the power of the justice department with within which is the... Fbi, the Us marshals service is it... Is within the department of Justice. The president basically, is within the chain of command to the the central intelligence agency. Spy surveillance technology that regular people do not have x s too. And then, of course, there's a commander chief power. The massive United States military, satellite technology, all, you know, that's weapon... Military grade weapons that regular people don't have. All of that is at the fingertips of a single person. Regular people do not have it. What the court said is when the when the president uses all of that power that nobody else has on the planet. You cannot second guess him. You cannot ask into his into his modem. So in your hypothetical, if a president says, I want all of the the the protesters on Lafayette Square. So to be shot in the knees to to so they stop protesting and according to, 1 of Donald Trump's former cabinet secretaries, secretary Esp to Nora O'donnell on Cbs. That is 1 of the things Donald Trump considered with the left Lafayette protests. It wouldn't not... It's now unconstitutional to second guess set. So long as he could say, this is my official power because I'm in charge, of the mille of of law enforcement, you can't ask, well why did you do that? You and I would say doing that to keep them silent is a real problem. Doing that to keep the rest of the public safe, maybe that's okay. We now can no longer ask the question. Because that's in ent in the president's prerogative to use his power as A script. Oh, it's worse than I realized. I I assume. I have to assume pardon are sometimes warranted and and are are really good things. So could you cite some examples of of that being done? Yes. There there were... You know, there have been parts that are positive. I'll take an example. From Donald Trump, there was a woman named Alice Johnson, who was convicted of drug trafficking and sent to life. In 19 96 in Memphis. She had lost her job at Fedex. She worked there for 10 years. She became addicted to gambling. She had a divorce and then her young son was died. And she said, she felt like a failure and, was desks Sprint, and she made a decision to make some quick money. And so she relayed coded messages over the phone in connection with a drug deal, She never handled the drugs. She never broker any deals, but 10 of the c defendants testified against her. Some of them had their... Charges dropped, and she was in prison with a life sentence. She asked president Barack obama multiple times. For a part, and it didn't get get anywhere, and then I mentioned Kim Kardashian became involved, spread her story on social media, and got a new legal team and then Lobby, the the Trump administration and Donald Trump pardoned that woman. I mean, you know, you could say, well, they're for every Alice Johnson, there's a... Thousand other alice Johnson says, what about them. Pardon aren't necessarily about, you know, handing out justice equally across deserving thousand candidates. But in that instance, you could say, listen, why are these c defendants were actually involved in the drug, the drug exchange handled the drugs, got off. She's in in prison for life. And she engaged in this crime when she was... Had just experienced tremendous trauma and she was desperate, and I think Americans understand that. They To understand what's to be gained by keeping this person in prison. But I would say the alternative, we could also change the bases for appeal. Supreme Court has really made it very, very, very difficult to get out of jail and it's in a series... Many, many series of cases. It's very difficult. Even if there's evidence exon you, the default as you stay in jail at the taxpayer expense. Guilty until proven nun innocent. And that... That's... And if you're proven guilty based on bad information, you're still guilty probably. It's very hard to get out, like I said, it's it's a... It's winning the lottery, even if you have evidence demonstrating that you didn't commit the crime once you're convicted... And lawyers don't come cheap. Oh, no. Lawyers don't come cheap. No. No No. I mean, anyone who's had to engage lawyer, including me, who's a lawyer. It can bankrupt you. And it really, we are in a system in America where people with extreme wealth have more justice. Hands down. Yeah. Yep. That's true. We like to believe in equal justice under the law, but it's it's clearly effect. And there is a long history that I believe is included, in your book, history of colorful and often overlooked pardon in Us and world history. Wonder if you could tell us about some pardon in the book known as the bible and in ancient Greek and Roman times. Yeah. So the Bible, maybe the most famous is in the new testament and the crucifixion of Jesus of Nazareth. So puncture. Pilot was the fifth governor to rule over Jude during the Roman emperor empire of Ti, and pilot thought Jesus hadn't done anything wrong. You know, he claimed to be the son of god. People ultimately saw that as here. He was willing to release Jesus. But then it was up to the crowd to decide when to whether the issue a pardon, and they he gave him that the crowd a choice. And this was that the... As part of the passover celebration. He, you could quiet at the crowd and hand out a a pardon, and... And Po just gave the choice between Jesus and a guy named Bar, who was in prison for treason in murder. And the the crowd shows the pardon in for Bra. And, of course, that changed. The rest of history. And Jesus was, Jesus was ultimately crucified. So that's an example. The Quran quran under Islamic S law represent has a a deal, which is play a payment of blood money to compensate for death or injury, and, it's believed that if the family chooses a money payment over execution, they some kind of, a higher standing in the afterlife. So... And then in ancient rome, there was a belief that I found your way to execution, you encountered it what's... What's known as a vest virgin along the way, a sacred virgin. It was good luck and the divine favored you, and you could... You were pardoned on the theory that their purity supernatural transferred, you know, forgiveness and washed away the crime. So so the the pardon power yes has a very long and colorful history that as I... We said at the beginning of the of this conversation is really grounded in this idea of Ver and also just moving on and and healing healing for a divided. I mean, Jimmy Carter, Yeah. Pardon draft dodgers example in in the Vietnam war. 2 presidents Johnson. And and Lincoln part confederate soldiers at the end of the Civil war, The idea being we need to move on as a nation and come together. And now you've cleared up, excuse me, the great mystery for people, my age who remember the huge hit in 19 67 wider shade of pale. The pro call here. They referred to vest virgins. Nobody knew what the heck of vest virgin was. Nobody ever heard that term before. Now we know. Yeah. The famous lady Ga, if anyone anyone's had the chocolate. I think she was 1 of them. No really? Yeah yeah. Yeah. Oh my goodness. The history is so fascinating. If you just tuned in Bert Cohen here, the show is keeping democracy live. We're looking at a very important aspect of democracy pardon power, Our guest today is Kimberly Whale, who has got a new book coming out soon called Pardon power, how the pardon system work. And why We're talking about why it's so important to democracy. Not something we think about all the time. And another thing in in American history in the 17 nineties, there was the whiskey rebellion, like the S rebellion and were populist to protest against what was Seen as unfair taxes. Was pardon power applied in the case of the whiskey rebellion? Right. As probably, I think the first example of president using its part and Power that was George Washington. Pardon in the whiskey rebels in 17 95, they were upset by taxes put on whiskey imposed by the first... The country's secretary of treasury, Alexander Hamilton because the country was in debt after the revolutionary war Yes. And so let's raise taxes. We'll pick on whiskey dis sellers, and they rebelled. They didn't want to put the bill for the war. There were couple of them and surgeons that were convicted of treason, which carried a death sentence as I indicated earlier. I mean, a lot more crimes carry death sentences in the olden days. Yeah. And so Washington and at the time the governor of Virginia to address state crime side pardoned to everyone who participated in the whiskey rebellion, and he got some political perks. I mean, he was widely crank claims for that acts action But as you indicate, these are are these are these are difficult decisions. Yeah. I mean, some might argue that, you know, for, Jimmy Carter and parting the people that dodged the draft in Vietnam might not have helped him. He did not get a second term. Yeah. Yeah. And ford's its pardoned of Nixon. Mh. Seem to have had an adverse effect on his reelection chances. But sometimes that happens. And then you mentioned in Mormon dominated Utah, there was something known as the mountain Meadows massacre, which I had not heard of. Tell us about the political fallout around that, please. Yes. This is really fascinating and I open the book at some link because I think it just sort of tells the story of how hardened are. So So really entrenched in much of American history. So mormon tray has its roots back in upstate New york in the 18 thirties and the founder was Joseph Smith. Who had a vision that led him to write what's called the book of Mormon, and the mormons believe in the second coming of Jesus Christ. So that's what's known as the Latter days, the church of Latter day Saint. So Yes. Christ will come to the earth in Latter days. He dies, and, mormons follows a guy the by the name of Bring them young as a new prophet, and they go out to what now Utah, Utah Territory. And started imposing pretty Draco religious related laws in that territory, under bringing brand young, that... It was still not recognized by the federal government, and Miller Film were actually appointed, young. The first governor of the Utah territory. And, ultimately, there was some talk of succeeding from the from the union, the mormon under the, the leadership of of, Bring Young, president James Buchanan declared, Utah and you belt... Rebellion sent 3000 troops at the time it was 20 percent of the Us Army out there to remove young and install a new... Governor and, young pushback with a with a mormon militia. And so young and the territory of Utah were actually at War, with the United States, Later, later, people that participated in that real... Mini civil war were were pardoned. But you mentioned the Mormon met... The Mormon Mountain Meadows mass occur. Right. In the process of this rebellion, a wagon train of a hundred and 40 people went from Arkansas on the way to California and stopped in Utah, and in Salt Lake City because they needed supplies, Young had put Utah under Martial law as I indicated, so there were limits on who could... On selling grain to the people in the mag... Wagon train, and rumors started spreading, about people in the wag reg wagon train maybe killing a mormon, stealing grain, etcetera, And on September seventh of 18 57, some militia members under, B Young dressed up as Pay, Native Americans and started shooting Yep. At people in the Wagon train. And then later, 4 days later, they dressed up as militia members and pretended to offer some kind of a a truth. On behalf of the pay and said, listen, we have a deal for you. If you give us some wide livestock and other supplies, we'll let you through. And on signal, they ended up mass occurring all the adults and children over the age of 7. They were They adopted the remaining 17 children under the age of 7, thinking they were too young to tell the story. Later, young was indicted for treason relating to the rebellion, the broader rebellion. But as I said, you buchanan pardon them all, but it wasn't so many years later, that there was, 18 years later that there was a single indictment around the Mountain Meadows Massacre. And that was for a guy by the name of John D lee, whose lawyer said he was sort of put out as a scape in in a deal with young to basically in exchange for spa everyone else involved, we was convicted. Now at this point, Young was already had gained power notwithstanding, as I said, he had been prosecuted for treason earlier, but he still maintained a tremendous amount of power power in Utah. And they're also separately, pardon ins for for big, or poly, I should say poly me within the the church of Latter sends 2 presidents Pardon, poly under federal law. So the Utah, History of Utah, the mormons are go hand in hand with a colorful aspect of the president's part tar. Yeah. Colorful. That's 1 word for it. Couple couple more questions. What would... There's gonna be some way of having some guard rails against unjust and arbitrary. Pardon, you know, pardon that people buy. What in in your opinion, as the author of this book and as a a law professor, what would be in ideal reform of pardon power. What would it look like? Oh, 0, and an ideal reform unfortunately, after the immunity decision would be amending the United States constitution. To put constraints on the pardon power. I would say, ideally, it would be to have pardon, but to do it in the context of some kind of independent panel that made Mac recommendations and have constraints on lobbying for sure. It shouldn't be that rich and powerful people, can get part ins for committing white call collar crimes where people like miss Johnson and others that are swept up, in the criminal justice system due to poverty trauma, other types of, experiences that they don't have any control over they're left by the way wayside. So I'm a big believer in transparency. I think president's Pardon should be made public why they're doing it. And I think there should be constraints on on the kinds of people that have access to the president that it shouldn't be people like, you know, Cro, like, an in the, you know, in the Robert Mueller investigation. President shouldn't be able to pardon people in order to protect themselves, but this would take, you know, take an act of Congress. And I say, ultimately with the Supreme court probably a constitutional amendment. Congress is not likely to go for that heavy lift. Well, Kamala harris is the presumptive Democratic nominee. She served as California attorney general. And and when she ran in 20 19, criminal justice reform leaders looked at her career as a prosecutor, some advocates branding her top cop who lacked a strong progressive record. Her prosecutor tutorial history wants something of a liability among Democrats, maybe now seen as a key asset as she prepares to take on Donald Trump. If she wins, what are your thoughts? Should we expect to see new initiatives to reign in excess. Of part and power. You know, I think it's unlikely just because there's such a long list of things that people are concerned about, But to and that is... There is this this kind of conflict. Right? They're soft on crime for mercy. Right. Gets so certain political constituencies in America very upset, well look, the idea is that, you know, crime is crime is rampant when actually under Joe Biden it's... It's dropped. So I think it's it's highly unlikely, But that being said, this this campaign not only self pardon for Donald Trump, if she's still in... If she takes over as president, those 2 cases, the January sixth case as well as the Mar case, I think we'll continue to move forward. Maybe they'll need to be not under a special prosecutor. They will, of course, have to deal with the immunity decision. And there might be some people within American Public she should pardon in. She should part a Donald Trump. Yeah. In the name of Cl. On the other hand, we also have the sitting president, Joe Biden son, who was convicted of a gun related offense And this kinda gets back to Alice Johnson. He was biden lied on an application about his addiction. I mean, this was someone who was in the t of extreme trauma and addiction. So 1 could argue that is the kind of candidate for a pardon in for Mercy. Right? So so she will have the her 2 present predecessor have... It's it possible pardon ins on on the table for her, and that's assuming that Joe Biden doesn't do anything with either topic on his way out of office because the Yeah. The pardon screens tend to have spree tend to happen in the waning days of administration, Yeah. But there's no more accountability. Yeah. Yes. They do. Well, the book is coming out in early September. It's cut titles of Pardon Power. How the pardon system works and why and its author is... Has been our guest today. Thank you, Kimberly Whale for being here. And who... Who is the publisher of that book? It's wood hall press. And but it's available on an Amazon. It's on my website. It's anywhere books are sold. And it comes out September second. And what's your website? Kim whale dot com, KIMWEHLE dot com. And I also tweet, and I'm Instagram at kim whale, and I have a a subs twice a week that breaks down all the legal news in a user friendly q and a format. So you're not a lawyer and not in law school and you just want the bottom line, you can sign up for that as well on my website. Thank you very much. Fascinating discussion. Good to know about The importance of this little thought about issue. Thank you. Great. To be here. Thank you for having me. Soon If you enjoyed that discussion, don't miss a single show. Subscribe. It's all free. And if you find the information valuable, Your friends probably do too. Please ask them to also subscribe. It's on apple, Spotify, Progressive radio network, stitch, I heart radio, and of course, the website keeping democracy alive dot com. Thanks very much.