Would You Pardon Him? With Kim Wehle

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1:21Hello, I'm Anthony Scaramucci and this is Open Book, where I talk with some of the brightest minds out there about everything surrounding the written word, from authors and historians to figures in entertainment, neuroscientists, political activists, and of course, Wall Street. Sorry, I can't resist. Before we get into today's episode, if you haven't already, please hit follow or subscribe wherever you get your podcasts and leave us a review. We all love a review, even the bad ones. I want to hear the parts you're enjoying or how we can do better. you know I can roll with the punches, so let me know.

1:55Anyways, let's get to it.

2:05My guest today, Kim Whaley, has written an incredible book about the pardon system in the United States, how it is used and abused its true power and its potential for corruption. It's a conversation that's at the center of our democracy right now. And we need to listen to Kim.

2:27I'd like to take a second to recommend my friend Andy Ostroy's great podcast, The Back Room. Every episode is a fun, incredibly honest take on our society and the political situation, along with some brilliant guests. I've been honored to join Andy on the show, and you know anywhere that accepts me with no filter deserves a shout out.

2:54So joining me now on Open Book is Kimberly Whaley. She's a former assistant U.S. attorney, legal expert for CBS. She's a constitutional scholar and professor of law at the University of Baltimore. But the title of the book is Pardon Power, How the Pardon System Works and Why, which is very timely, I might say, Professor Kim. Great to have you on. Obviously, I'm a big fan of you and your previous books. But for our listeners, provide some context. Give us a little bit about your background, how you got to become a professor, and then we'll get right into the book. Yeah. So I practice both, as you mentioned, as an assistant U.S.

3:31attorney. I was also a lawyer and associate independent counsel in the Whitewater investigation, investigating the Clinton family under the late Kenneth Starr. and after several years, I ended up having four children and transitioned into a legal academic world. And when Donald Trump took office, I mean, I've been writing in scholarly journals, et cetera. When Donald Trump took office, I was reading the New York Times on a Sunday, and there was a statement in the New York Times that said the pardon power is absolute and there are no limits on it. And I know you've been to law school. I was like, no, that can't be right.

4:07It's always, it depends. It's always balancing against other limitations. So I wrote my first op-ed for the Baltimore Sun, and that just kind of snowballed into more opinion editorials. You know, I now write for the Atlantic and Politico and Bulwark, you know, hundreds of them at this point, radio, and then CBS heard me on the radio and then CNN heard that and MSNBC. And now I'm actually the last couple of years been with ABC, but it's all around civic education and breaking down these concepts into English. And it's produced also these now the fourth book. I was writing a scholarly book for Cambridge and realized the audience was different.

4:44And that was how to read the Constitution and why HarperCollins took it in 24 hours when they got the proposal. I think understanding there's a real problem here. We don't know how the car works. We can't exactly fix it. And then there was a book on voting. My third one was on problem solving like a lawyer, which sounds like an oxymoron, but you have to understand your opponent's point of view. You have to be ready to compromise. You have to take into account the policy or the value system behind the law, all of those things that we don't do in regular parlance. And then this last book, it's a different publisher, but they approached me for this.

5:17So, you know, another installation in the and why series, not the how to books, the why to books and the pardon power. I don't know if you agree is kind of at the center of the storm. I mean, what we can't dodge it in the next six months, whether we like it or not. And it's a disturbing remnant of a monarchy that really, in my view, has no place in American law, at least as it's currently functioning at the federal level. Well, I think it's been corrupted, by the way, but we'll talk about that in a second. Let me just step back and I want to get your reaction because I'm fascinated by this. So I've read the book and enjoyed the book.

5:49And I want to go back to Julius Caesar for a second, because Caesar comes into Rome. He crosses the Rubicon. He takes over. He becomes an absolutist. He becomes a dictator or monarch or somebody that has absolute power. He's above the state. And he starts offering out pardons to his adversaries. And so this has been a political device for several millennia. It's a device to bring people together that are sometimes at war. This is the device, Lincoln said he didn't have to use it, but he effectively was using it at the end of the Civil War, pardoning generals and other people, trying to get the union back together.

6:30So there is usefulness to pardon power. And so I want to ask you the following question, and then I'm going to make a – I'm reading your book, and my reaction to your book is, well, there are usefulnesses. There's a reason why this idea evolves from monarchy or from Caesar deployed by other successful statesmen, but it's now been corrupted. I think that's right. Yeah. Yeah. And so Donald Trump has corrupted it. So I'm just wondering if it needs certain checks and balances like everything else does where, okay, you can't just whimsically, you have this absolute pardonability, which if you get it in the hands of the wrong person, it becomes very, very dangerous.

7:11And so what's your reaction on that? Well, I think two parts. Yes, I agree with you that, I mean, it goes back to the code of Hammurabi. It's in every country in the world except China. So there's something foundational about government, about justice, maybe. I mean, in common law England, it came on the scene in the seventh century, and there wasn't a jury trials until the 13th century. And there were a lot of death penalties for, you know, sentences for low level crimes. And a lot of justice was kind of retaliatory between private warring factions. And the king came in to administer justice in certain circumstances to the worthy.

7:50And that still is the concept, I think, that we hold on to as positive. But since Reagan, with the exception of Biden, Obama, every president, including Clinton, have run on this tough on crime stance. We spend approximately$8 billion in taxpayer money a year to imprison people. And there's no mechanism to get, since there's been no parole at the federal level since the 1980s, there's no mechanism to adjust for false positives, for keeping people that are innocent in jail or keeping people in there for a long period. So in theory, Kamala Harris, if she were to win, you know, I don't know, win, end up in the White House in January.

8:25And I say win in quotes because I think we're going to have debate over that falsely. She could decide, listen, I have this power. I don't have to deal with Congress. I don't have to deal with agencies. I don't have to deal with states. I don't have to deal with lawsuits. I have this power. I'm going to use it in a way to administer some fairness and justice in a deeply flawed criminal justice system at the federal level because I can do it. And I know a lot about it, having been a previous prosecutor. You know, part of the reason for the book is to have that conversation. That could happen. But that's not what's happened.

8:56Barack Obama, kind of a minor or limited commutation policy in, I think, 2013, 2014 involving low level drug offenses. So it's happened, but not on a meta level. And on the meta level, as we saw in the last in the last administration, and it wasn't just Donald Trump, but he took it to a pardon palooza level, like, you know, real, real corruption. It's it's pay for play. It's, you know, this avalanche of pardon requests. Rudy Giuliani peddling them for two million dollars a pop. Six members of the United States Congress seeking pardons for January 6th. pardoning Paul Manafort, pardoning Roger Stone, who the judge raised eyebrows at in a hearing around that pardon because it was ostensibly to keep these people silent in connection with investigation to the president's own wrongdoing.

9:44And then I hope we can talk about it. We have the Supreme Court coming in and manufacturing criminal immunity for presidents if they use official power. And if they're going to do that, they're going to need people to execute their orders. How do you do that, you pardon them. So the pardon power has now, based on that decision, it is now a green light for not only extraordinary corruption, but a crime gang in the White House. And it's been insulated throughout this mythology of pardons being unlimited, plus this ridiculous immunity decision. So I agree with you in theory. I just think it's gone off the deep end in the other direction.

10:17And we've only seen how nefarious it can be thanks to our friends in the majority on the Supreme Court. Okay, so I have a theory that I want to test on you. And it's a pretty bold face theory. So, you know, I know we're in this culture now, we have to be very sensitive, but I'm not that sensitive. So I have a theory that whites are threatened by black and brown people, and at least a group of whites are. And I have a theory that the democracy works as long as the white people are in charge. But in the demography is such where black and brown people are going to be the majority of the demography, and therefore they will end up running the government.

10:56Well, then that's not good. Let's switch the rules of government and let's keep the white people in charge. And so there's a group of them. I think Donald Trump represents them, frankly, if I could be bold enough to say that to you. And so now we're watching the scissors come out and we're cutting things a certain way so that they're manufactured a certain way. This this immunity case as an example is an example of that in my mind. So what have I gotten wrong? Tell me I'm completely wrong and tell me that I'm living in a reality distortion of my own mind. I wouldn't say either of those things.

11:28The only thing I would do is I would add, I don't think it's just black and brown people. I think it's women too. Women too. Yep. Yep. I'm sorry. Black, brown and women. So Kamala Harris, she represents a direct threat. And I think I should point out that I have endorsed her for president and I've worked for her. I've been in the spin room for her in the debate and I'm doing some debate prep with her. She's going to debate Trump again is my prediction. But I interrupted. You said you're, it's not just black and brown people, it's women. And then continue. I'm sorry. So, I mean, I have two answers.

11:58One is from the demographic. You're right. I mean, the last statistic I checked, people under the age of 16 are primarily black and brown. So just the, just literally the generations coming through, the numbers are such that it's not going to be white and it's not going to be male. Now, as far as, okay, so is there a backlash? Is there a reaction to this? Not only in the representations of the two presidential candidates coming November, but we have the United States Supreme Court again, reversing Roe versus Wade, which is putting women's basic healthcare, access to emergency room care is being denied by virtue of an immutable characteristic of birth, that is having a uterus, which to me is counterintuitive to anything about liberty, justice for all.

12:42And then you have the Supreme Court's basically declaring affirmative action unconstitutional. And in that decision, I mean, people talk about and can debate whether affirmative action is helpful or harmful for minority, traditional minorities in the academic field. But if you read that decision, Anthony, the court declared the Constitution colorblind. The court rewrote Section 14 of the Constitution, which was enacted following the Civil War to bring black and brown people who had been enslaved into the union as human beings. And the court has now declared any interpretation of that that takes into account addressing past discrimination or tries to put people closer to the same starting line as white males, white males with money, no offense to you, were the only ones who had any agency at the time of ratification of the Constitution.

13:31The court has now said interpreting equal protection in a way that's about remedying past discrimination is now unconstitutional. Unconstitutional. I think we're going to see, and I've written a whole law review article on it in the University of Maryland Law Review this spring, I think we're going to see a cascade of the Supreme Court rolling back civil rights protection. So this isn't just, it's a metaphorical, theoretical, spiritual, symbolic thing that's happening with Kamala Harris and Donald Trump true. It's also literally happening in this packed Supreme Court, thanks to another white male, Mitch McConnell, who in a Machiavellian way managed to essentially lock down the United States Supreme Court for generations, to your point, because they're not, they are not having to respond to voters.

14:20When these black and brown kids become voting age, they can't do anything about the Supreme Court. It's anti-democratic. So what you can't do with the ballot box, yeah, they're doing it by changing the system. And it's at every level. I mean, we could talk for hours about it. I don't want people to get terrified around it. It can be addressed, but it can't be addressed if people don't even know what's going on. Well, I'm going to blame one other person, if you don't mind. And he's deceased now, and I liked him, but it's Harry Reid because, you know, just for the constitutional historians here or the Senate process people, he gave up the filibuster move.

14:59And McConnell told him, if you do that, you're going to regret it. And he did it anyway. And McConnell ended up using it against the Democrats and getting these nominations through without a two thirds vote as they once used to go through it. So. Right. He did it for the lower federal judges. And then McConnell said, fine, I'll do it for the Supreme Court justices. But I'd add a living person to Barack Obama didn't really even make a speech when McConnell stole Merrick Garland's seat. So the Democrats were behind the ball on this and didn't push back. You know, and I'm on record as having, you know, assigned that criticism.

15:35They could have played hardball, I think. Well, I mean, but also, I mean, listen, McConnell was incredibly hypocritical because he had the Garland nomination. It was six months prior to the election. He said that we needed to wait. And then a few weeks prior to the election, he's got Justice, I guess her name is Amy Barrett. She comes in a few weeks before. And so it's the height of hypocrisy. It creates all the cynicism in the American body politic. But I want to go to this, if you don't mind, because it's embedded in the pardoning aspect. You're writing this book, at least the way I saw it, you're writing the book to explain that there's worthiness to pardon power, but it becomes unworthy if you're going to corrupt it or put it in the hands of very bad people.

16:23And so therefore the process has been, in fact, corruptive. And so what do I have wrong? Is that fair? Is that a fair assessment of your book? Yeah, I think that the pushback would be, well, the framers did it, right? The framers put into the Constitution Article II a pardon power thought, a lot of restraints, but they also kind of thought it would only be white males that they know that would be in charge. And I also argue that the Supreme Court and the public, frankly, and even legal scholars have somehow allowed the pardon power to have a mythology around it that it doesn't have limits when any other power, the commander in chief power has limits.

17:00The power to execute the law has limits. The power to make treaties has limits. Everything else that is supposed to be core power has limits. But even in the immunity case, counsel for the government, for Jack Smith, didn't push back at the conservative justices' statements that the pardon power would be a core power with which the president could commit crimes with impunity. So you're right that it, my argument is it does more harm than good. It's not doing the good that it could do. But I also argue that part of that is the mythology again around this as somehow being a relic of King George III, whose pardon power was constrained at the time of the ratification of the constitution.

17:44He shared it with the church, parliament had pulled back on it. Um, so my argument is it needs serious attention and all power has to be checked by other branches, all of it. So it's okay. What can we do short of a constitutional amendment? Um, and I make arguments for what can be done, but the special thing is we have to stop ignoring it because it's now become a real monster, a real, to your point, if it's in the wrong hands, it not only could be corrupt as to individuals, but it could be used to use the massive power of the presidency and now this official power to commit some serious crimes, because you can you can immunize your deputies now using the pardon power and they wouldn't be covered under immunity.

18:27Yeah, no, it's interesting because, you know, Nixon, whatever we both think of Richard Nixon, he did believe in the Constitution and he believed in the in the process. I mean, he could have been Trumpian, pardoned himself and pardoned his people around him, but he complied to the checks and balances in the system. And so you now have to wonder how we made it 250 years without having a rogue player come in that was morally bereft and that would take the system and use the system to their advantage as opposed to respecting the system. But I want to talk about Justice Roberts for a second, if you don't mind, because I followed his career with some level of admiration.

19:09And I'll give an example of this. He wrote the opinion on Obamacare. Whatever you think of Obamacare, whether it should be or shouldn't be, what he did not want the court to do was to come into the political process. You had the executive branch and the legislative branch that voted it in. And so he wrote the case to treat it as a tax. And therefore, if it's a tax, it would fit and conform to certain things. And it was a little bit of a manifestation on his part, but I think it got to the point that I think he wanted, at least at that time, 10 or 12 years ago, to depoliticize the court and to maintain the integrity of the court.

19:48But now fast forward, it's 12 years later, he doesn't seem to be doing that anymore. And I'm wondering as a constitutional scholar and a professor, if you could opine on that. Am I wrong about that? And if I'm right about that, then what's changed about the court and what's changed about Justice Roberts. You're not wrong about that. I just want to make one note on your last comment about Nixon and a plug for the book. As you know, John Dean, Nixon's White House counsel, who famously said there's a cancer on the White House, wrote the foreword to my book. I was just on a panel with him in the 50-year anniversary of Ford and the pardon at the University of Michigan.

20:22He says the difference between Donald Trump and Richard Nixon is Richard Nixon had a conscience. And then everything Nixon did would now be protected. There would There would be no criminal liability. There would be no Watergate. There would be no resignation. There would be none of that because it's now all immunized. So we have seen in the last, over the last summer, a change in the trajectory of constitutional law. I mean, we have a witness to it say it would have been completely different. I'm a lawyer. I've read the opinion. On Justice Roberts, yes. I mean, he not only, there was a front page article in the Sunday Times, New York Times about, you know, how he rested the opinion in the immunity case from Justice Alito, maybe because Justice Alito's wife and himself, it's his property, has stopped the steal signs now, made public that, so maybe there was at least an appearance of conflict of interest.

21:11But he also wrote the decision in the Section 3 case, basically deactivating the 14th Amendment, which expressly says you've engaged in insurrection and rebellion. You can't hold office again if you've taken an oath. So these are, this is an originalist, a textualist, someone who pretends to pay attention to the plain language of the law and the history and rationale behind it. It's both of those decisions are, and the, and the section three got, you know, a bigger majority. I mean, there wasn't, there were some concurring opinions, but it's not intellectually honest pursuant to their own jurisprudential philosophy.

21:47I mean, if you're a textualist, you're an original is fine. But then do that, do that across the board. They're not. So I don't know. I've been asked this a few times. I think, you know, he was in the White House, Brett Kavanaugh, who I knew in the Ken Starr investigation, excellent, brilliant lawyer, also under worked for Bush. And it seems to me there was a deep, it's one of two things. It's either, or maybe both, a deep skepticism of prosecutors. The idea is, okay, now this has gone forward against Donald Trump. It's going to become a ping pong ball. These rogue out of control prosecutors are now going to be indicting former presidents based on politics.

22:21The problem with that, of course, is there's a lot of checks and balances against limiting the excessive power of prosecutors, including grand juries, you know, proof beyond a reasonable doubt, appeals, all kinds of things. The other alternative was they are political, that it's, you know, heads we win, tails you lose. So this is a Republican president. We don't want to see Donald Trump indicted or constrained or the Republican Party indicted or constrained. So we're going to say certain things are official, including relating to January 6th. Those can't be prosecuted, but we're not going to do the same thing for unofficial acts.

22:56We're not going to draw any boundaries and say, this is definitely unofficial. So if you find anything that Donald Trump did that's unofficial under our definition, go for it, Jack Smith. They were eerily silent on that topic, which to me suggests, Anthony, that there's some politics going on, that they might be biased and corrupted. And that's very disturbing as someone who has to persuade law students every year that the system is something we should have a lot of respect for. Is there any going back, Professor? On immunity? Or any of it? Is there a re-engineering of the process? Is there a renewal, an American renewal that would sort of re-fortify the planks of the Constitution, provide some guardrails for the pardoning situation and to, you know, I mean, it's in the decision of the courts, you could, of course, legislate via the right legislature.

23:50The court's interpreting the law, right? But you could put law into place that redefines immunity, right? Well, you know, the question is, it comes back to the Supreme Court. So if Congress were to try to do that, they might say, no, you can't constrain the immunity because we've now declared it as a matter of the Constitution. I mean, as you know, when the court interprets the Constitution, it's like amending the Constitution. But that goes back to Marlboro versus Madison, right? So they gave themselves that power in 1803 in that landmark case. And I know you're an optimist, and I like to be optimistic.