TF 27: The Pardon Power
Harry Litman [00:00:07] Welcome back to Talking Feds, a six-part series of live episodes from Washington D.C.. On the overall topic, After Mueller: Challenges and Prospects for U.S. Democratic Institutions. We are again here at Georgetown Law School. Thanks to the hospitality of our co-sponsor the Institute for Constitutional Advocacy and Protection. And this episode is also sponsored by the American Constitution Society, the nation's leading progressive legal organization. Through its nationwide networks of over 200 student and lawyer chapters, ACS is dedicated to defending the language and the spirit of the U.S. Constitution. You can learn more at ACSlaw.org.
Harry Litman [00:01:00] We're focusing today on a topic that has been at the center of the disputes about executive power and the President's imperial instincts, namely, the pardon power. We're going to discuss the values and purposes of the pardon power and then turn to an evaluation of the Trump administration's employ of it. And for this task we have the ideal panel, combining exceptional scholarship with deepest practical experience.
Harry Litman [00:01:29] Beginning with Robert Bauer. He is now the professor of the practice and the distinguished scholar in residence at the NYU School of Law. But he was formerly the White House counsel, which as we'll hear plays a very special role in the pardon process and had a private practice for many years that focused on national political campaigns. Bob, thanks very much for joining us.
Robert Bauer [00:01:54] Thank you.
Harry Litman [00:01:55] Margaret Love is here. She is a private practitioner in Washington D.C. But for many years she was the former pardon attorney, the highest person charged with administering the pardon program exclusively -- all pardons all the time -- and brings with her, obviously, a wealth of practical experience. Margaret, thanks for coming.
Margaret Love [00:02:17] Absolutely. Nice to be here.
Harry Litman [00:02:19] And finally, Rachel Barkow from the New York University Law School. She's the Vice Dean and Siegel Family Professor of regulatory law and policy there. She's also the faculty director of the Center on the Administration of Criminal Law. Rachel's recent work has focused on a number of what you might call "back end mechanisms" or "safety valves" to mitigate the, sometimes draconian, effects of the criminal law and the relationship of those mechanisms to executive power. Rachel, is that fair? -- And by the way, thank you for coming.
Rachel Barkow [00:02:58] Oh, thank you, very fair.
Harry Litman [00:02:59] Okay. All right. So look, the part and powerf. It's it's very important and yet it's very complicated. On the one hand, the pardon is a sort of override of the justice system. Yet it's also a necessary safety valve within the justice system. So in a sense, it it draws the basic contours that divide justice from mercy. Hamilton wrote in Federalist 74 about the pardon power, "The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance to sanguinary and cruel." And so in this sense, the pardon power seems to get at society's highest aspirations of justice but also mercy and forgiveness.
Harry Litman [00:03:55] But there's also this separate aspect of the pardon power that's come to the fore in the last few years that really has to do with its being part and parcel of core executive power and that, to some minds, doesn't really express our deepest aspirations at all. It's just a plenary power for the President that he can use as he likes, including for raw political motives, just a special item in his tool box. And under this view, the idea of a righteous or appropriate pardon almost doesn't make sense. So I want to start here and this idea of the aspirational value of pardons in general. Let me ask Bob for for your view and if you think it's different from other prominent views. What's the basic purpose of the pardon power in our constitutional scheme?
Robert Bauer [00:04:48] It has been described variously, as you said, by Hamilton among others, having different component parts: One is a private act of grace by which individual injustices are rectified--.
Harry Litman [00:05:00] Why private would you say there?
Robert Bauer [00:05:02] Well, I'm actually quoting from a case called U.S. versus Wilson in which it was described as a "private act of grace". It's essentially dispensation of mercy where injustice has been committed. A second aspect of it is its use in exigent circumstances like cases of national healing where the public welfare would require ,say, as Jimmy Carter did, by providing amnesty to those who would escape the draft during the Vietnam War. Or perhaps, Gerald Ford's pardon of Richard Nixon, at least as he saw it, in 1974. And so it's it's a healing exercise in the public interest, but there's a third view and I really want to distinguish the third from the other two, which is integral to the President's discharge of Article Two functions as an absolute power that can be used to put the President more in control of the executive branch. Also as a mechanism for communicating policy priorities for moving a policy agenda. And the third one is the one that I think you were referring to when you said maybe my view is different from others. I have profound concerns about breaking the pardon power out into that third category and not recognizing the perils associated with that particular prong of the pardon power.
Harry Litman [00:06:12] Yeah, and let's double back on that shortly. And that is the view I think that has been the main subject of focus and debate these last three years. Rachel, you basically agree with that schema and are you a partisan of one, two, or three?
Rachel Barkow [00:06:29] Well so I -- Let me back up for a second to remind people what the pardon power includes. So it includes commutations which would mean reducing a sentence that somebody is currently serving. So for people who are currently in federal prison today there is no parole. We don't have a back end sentencing mechanism for any of the people in prison. So any stories that people hear about, about somebody serving a life sentence for marijuana or serving 30 years for crack cocaine, if we don't change those laws, and Congress is basically incapable of doing that, making retroactive adjustments for things, the only place those people can go for sentencing relief is to the President of the United States. Now I'm not saying that's the ideal model in the first instance in creating a government, but that is what we live with today. So I don't know where it fits into the categories that Bob outlined, but for me that's kind of priority one -- is thinking about for people who are currently incarcerated in federal prisons today and are serving excess sentences -- that's what they need to do in order to get relief.
Harry Litman [00:07:30] And by the way, is it fair to say that that's actually Bob's first point. You know, individual injustice and getting through it. Okay. So are you endorsing it or just describing it here?
Rachel Barkow [00:07:40] Oh, I fully endorse it. I think it's a necessity. I mean, I think we have thousands of people currently incarcerated in the United States today in federal prison who are serving excessively long sentences. And we need to do something. You know, there's other things we could try to do. But for right now clemency is is kind of key. And then, you know, the other bucket I just wanted to make sure I got to was in addition to commutations, reducing sentences people are currently serving is the pardon power. So that would be people have already served their time. They're out in society. And the question is, what could be done to kind of give them a real fresh start to say, "You know, we have recognized your rehabilitation. We've recognized your reformation and we want to give you a clean slate, clean record.".
Rachel Barkow [00:08:20] Hereto, the federal system does not have another option for people to turn to. And when you have a criminal record, and Margie will be able to talk more about this I'm sure, when you have a criminal record it stops you from any number of things, getting jobs getting licenses. So if you want relief from that, again, if it's federal you need to go to the President the United States. So I just kind of wanted to add to those broad categories just this very practical notion that for the people living with convictions or currently serving sentences, the only place they can go is to the President.
Harry Litman [00:08:52] Okay, and by the way, they got to the President -- in my experience anyway -- through the pardon attorney. So Margaret, your business was sort of, you know, wholesale and retail. Rachel is talking about broad social trends, for instance, draconian sentences and drugs. Was that in fact, kind of, pound for pound the biggest thing that you did? And were they always combined with some personal story of rehabilitation or were they just simply an appeal for clemency for just over harsh sentences of crimes that the applicant might have said, "Yes I did. But I'm getting overly punished for it."
Margaret Love [00:09:30] Well, I was pardon attorney in the 1990s and that was when these long mandatory sentences began to show up in the pardon caseload injustice and it was a strange time because the Justice Department for over a hundred years had, basically, managed the pardon power and had guided the president in his exercise of it and tried to keep him on the rails.
Harry Litman [00:10:01] Which meant what? What what would it mean to go off the rails?
Margaret Love [00:10:04] Well, going off the rails as far as the Department of Justice was concerned was undoing whatever the Justice Department had done in terms of baking and finishing a criminal case. And that is the way that the prosecutors in the Department saw the pardon power. Now I had a little bit of a different take on that and thought that finishing a case did not necessarily end with imposition of the sentence. I thought there was a lot more to the case and that that had really been recognized historically by the U.S. attorneys, in fact, that there was a shape to a criminal case that had a beginning and an end and the end was this notion of rehabilitation that Rachel mentioned.
Margaret Love [00:10:51] I always thought that there was a wonderful opportunity to tell good news stories about the work of the U.S. attorneys in actually recognizing the full accomplishment of a federal prosecution which ended when someone really changed their life and gave back to the community. Let me mention one other thing that Rachel just alluded to. The function of the pardon power is a kind of driver of law reform bringing out the hard cases, difficult cases showing where the law is short. And I think, frankly, Congress has taken a big step in that direction last December with the first step act, because there is a safety valve now that will steer prisoner cases back into the courts and if the Department of Justice is willing to use that safety valve, it's now out of the hands of the prison system and it's now into the hands of the courts by virtue of having taken the BOP out of that gatekeeper role.
Harry Litman [00:12:00] The BOP being the Bureau of Prisons.
Margaret Love [00:12:01] The Bureau of Prisons. Right. So now people in prison can go directly back to court. Now that power is very broad in the statute that gives the court power.
Harry Litman [00:12:12] And it's not technically a pardon, right?
Margaret Love [00:12:14] No, no. It's absolutely a sentence reduction for extraordinary and compelling reasons. That's the only statutory standard. It's true that that's been construed in a very narrow manner by the department over the years, but it does not have to be. So, I think, the back end, as far as the prisoner cases are concerned. Is basically taken care of.
Harry Litman [00:12:40] All right. So I just want to talk a little bit more in practical terms about this aspirational model especially hearing some pretty distinct or profound differences among you three. Could you give us an example -- Bob, I'll just start with you of what you think is the paradigm of a just or righteous pardon. A situation which we're really grateful that the Constitution includes it. And if you have in mind something that is is, you know, an absolute constitutional transgression as well. Hopefully, a high profile case but not necessarily.
Robert Bauer [00:13:14] Certainly. Well before I get to the constitutional transgression, let me refer to it as an inevitable constitutional transgression. The moment we put emphasis on the broad ranging use of the pardon power by the President. But I certainly would say the salutary uses include precisely the ones identified by Rachel where there are clear injustices that have taken place, either on an individual or in the case for example the Clemency Initiative of 2014, on a class basis involving drug trafficking offenders and some effort is made through the use of the pardon power squarely within what I think is one of its more noncontroversial uses, and let me put, maybe, less emphasis on "noncontroversial" because in this day and age everything the president does on a grand scale is controversial. But I think it falls within the acceptable or the comfortable zone, from my perspective, as a constitutional matter.
Harry Litman [00:14:01] Because, in a word.
Robert Bauer [00:14:03] Because it was designed for that purpose and because I think there would be broad general recognition that there needs to be that sort of backhand safety valve where the criminal justice system has significantly misfired and people are suffering as a result and it's a means of alleviating unjustified suffering, systemic suffering, produced through that criminal justice system. That does not trouble me. Nor am I troubled by cases where the country has undergone what I think, you know, for want of a better term, you'll call major divisions, significant, you know, calamitous national events that presence are expected to calm the waters over. And I would put in that category Carter's decision to provide amnesty to those who escaped the draft during the Vietnam War and I would, even though it was very controversial at the time -- may have cost him re-election may not have cost him re-election -- Gerald Ford's pardon of Richard Nixon. Those sorts of things I find, again, clearly within what you see reflected in the Federalist Papers as the sort of justified uses of the pardon power, the acceptable uses, the constitutionally, mainstream uses of the pardon power.
Harry Litman [00:15:08] They're very different, right? I mean, you're talking about a social problem that there's a back end safety valve to alleviate with the draft of the drugs and with Nixon I think you're talking about, not the specific over punishment of Nixon as the president, but rather, a national. You know, "Our national nightmare is now over." Like acting in a sort of --
Robert Bauer [00:15:29] To spare the country--
Harry Litman [00:15:31] Right.
Robert Bauer [00:15:32] -- the trial of a President and the months of sort of grinding controversy and continued division over what occurred during Watergate. Where I think we have to be very careful is where the pardon power becomes yet another direction in which presidents look to exercise challenged uncontested authority, constitutional authority, and attempt, in that way, to communicate political messages, just narrowly cast political messages, which we've seen in this administration or, alternatively, to move policy again in a circumstance in which they've concluded that the only way for them to show results on this policy is not by working political results through cooperation with coordinate branches but by imposing their constitutional will.
Harry Litman [00:16:17] Right.
Robert Bauer [00:16:17] And that I would put in that category and I will not only pick, in the moment, on Donald Trump, but I will start certainly in the Trump administration. We've seen this with pardons that have been directed with conservative, if you will, "co-celebra" like Dinesh D'Souza over a relatively minor but clearly committed campaign finance violation. Certainly the pardon of Sheriff Joe Arpaio, prospective pardon I suppose it was. In any event, long and short of it is, those are the kinds of uses of the pardon for just raw political purposes as a messaging matter that I am concerned with. But I think that's only one aspect of the troubling use in that third bucket that I described earlier.
Harry Litman [00:16:59] All right. So I'm hearing a clarion call to move to the Trump administration's exercise of pardon power and I will shortly. I want to pause still just for one second, but Margaret heads up that I'm going to ask you in short order what you think, specifically, about the Arpaio pardon. But Rachel, so Bob's identifying two different aspects, two uses that that differ to me as I understand the pardon power an important respect because one is about social overreach and the correction of a legislative initiative that, being legislative, applies across the board. One focuses on, however, and I think this was Margaret's view, a kind of rehabilitation of the individual. The pardon application, and I've reviewed them as U.S. Attorney, asked for a specific story of triumph and an actual overcoming of adversity and a kind of personal redemption that some would say, "Well this is the paradigm." So I'll ask you Bob's question about what's what's a real paradigm for you of a just or righteous pardon and how would you integrate this notion of just legislative overreach, on the one hand, versus personal redemption on the other?
Rachel Barkow [00:18:20] Right, I don't think they're mutually exclusive and you have to pick one or the other. I think they're both well within the core of what the pardon power is. You know, when it comes to legislative overreach, though, I think it's important to keep in mind that it's not just legislative overreach, it's executive overreach. So you could have the legislative branch pass a law that's a mandatory minimum sentence for a drug trafficker of 10 years and maybe in some cases--.
Harry Litman [00:18:44] Wait, Congress would have to pass that law, right?
Rachel Barkow [00:18:45] Yes. And we have those and Congress could have a law that says that and maybe in some cases that sentence is appropriate. So it's not necessarily true that the law in all cases in all instances is a bad law and you need this kind of class wide corrective. But you have cases where the Department of Justice has made the decision to charge where in that case, it is excessive and there's thousands like that. So for me a paradigmatic case that you could look at -- and and I kind of want to push back on your asking for a high profile one -- because I think really this power should be used for everyday people who don't necessarily have political connections or in the media, but they are just the everyday people who prosecutors have excessively charged.
Rachel Barkow [00:19:26] So the example, and she has been in the media, only because Kim Kardashian was one of the people who helped bring her case to the attention of Trump was Alice Marie Johnson. So here's a first time offender who was involved in drug trafficking and she got -- first time offender -- life sentence and she'd already served 21 years by the time she got her commutation grant by the President. To me that's a perfect example of those two categories you asked about at the beginning. Because, one, she was someone who got an excessive sentence to begin with. I mean, who gets a life sentence as a first offender for drug trafficking? I mean, that's crazy. And, two though, she's also an example of what you were talking about with personal redemption, because while she was incarcerated, she was just an amazing force of nature helping others there. You know, writing plays, helping people she was with, just you know, tons of people calling out what just a warm and wonderful human being she was and is. And so, you know, under either of the models that you're talking about this is a very deserving applicant for clemency. And you know it shouldn't take Kim Kardashian hearing about her case for that grant to occur. And so, you know, that's an example of, you know, where it was DOJ on that case recommending a grant. They actually recommended denial and that's why President Obama did deny her case. You know, the reason her case was still out there to be granted by President Trump was because she was a "no" under the Obama administration.
Harry Litman [00:20:48] Right. Now I think these are very good points. Although I'll just add, there's a special problem with high profile defendants as well. And in terms of potential executive record overreach. So I think a very good -- I'm the least of the experts here -- but I think about Jack Johnson or maybe Lenny Bruce as being exemplary in the sense of this social judgment having now been been reached that we were wrong back then to have been overly harsh. All right, so the promised question to you, and if you want to set it up, Margaret, with any with other thoughts, please do. But Sheriff Joe, what the heck?
Harry Litman [00:21:25] Before I speak to Sheriff Joe I just want to respond to Bob for a moment about the use of the pardon power in terms of political messaging. I think that's a very valid use of the pardon power. Obama certainly used it with the drug cases. That was political messaging, a message to Congress, "Change these laws." And so I think that the political messaging, the bully pulpit if you will, to tell a story about how the law ought to function is a tremendously important part of the President's responsibility really, in not just individual cases but in the broad sense, and that's what I mean about law reform. Sheriff Joe. I will speak to Sheriff Joe. Sheriff Joe is a little, to my way of thinking, beside the point.
Harry Litman [00:22:16] Well, why is that?
Margaret Love [00:22:17] Well because it was sort of silly. It was a silly grant. It was a very personal gesture that was taking a case out of the courts that was being handled in the courts. Frankly, Sheriff Joe's case is not that unusual. Ronald Reagan intervened in the justice system before he had been in office two months to pardon the two FBI officials who are being prosecuted at that time for unconstitutional black bag jobs against The Weatherman. This is not that unusual. Nothing that Trump has done has no precedent in the system. Every one of his grants has a precedent.
Harry Litman [00:23:02] Well, we'll return to that. But go ahead.
Margaret Love [00:23:02] So but the problem with Trump is, in my view, that the regular exercise to benefit "little people" as -- Bill Barr actually called them "little people" -- when I worked for Bill Barr when he was deputy attorney general, he really liked the use of the pardon power for ordinary people. That's what's gone off the track. And my take on that is that it really is the responsibility and the fault, if you will, of the steward of the pardon power which is the attorney general and the Justice Department was responsible for making the pardon power work in a responsible way. Ever since the Civil War they have had that role. And in my experience, they fell down on the job beginning in the 1990s. And it's never really gotten back on track. And frankly, I think that if, if, we could somehow manage to reconstruct, resurrect, that administrative system that helped the president fulfill all of these roles, not just the individual injustice but the political messaging, the proper messaging, I think, that would be a great benefit. And it's very sad to me, right now ,that that process has fallen on such hard times.
Harry Litman [00:24:25] Bob, do you accept this view?
Rachel Barkow [00:24:25] Can I intertect for one second? For just a quick second on that one.
Harry Litman [00:24:28] Yeah, please Rachel, sorry--
Rachel Barkow [00:24:29] I just want to point out that I really think if we stop and think why the Department of Justice has this role at all it becomes clear why it's gone off the rails. I mean, you're asking the agency that has prosecuted these cases to be the same body that gives it a new objective second look. And I just think it defies human nature to ask somebody to do that and it goes back to Margie's point before, which was DOJ got upset with any grant that looked like it was undoing what they had done. Well, because that's true. They though, "We thought these were good cases to bring. These were the sentences that we asked for." And so any pardon. Or any commutation looks to them in some ways as a rebuke of decisions that they previously made.
Harry Litman [00:25:11] Yeah, I can report as a practical matter that agents, in particular, just hate pardons and are arguing against it. I want to pick up on one thing you just said Maragaret which is the A.G., as you see it, is the proper steward. You know, Bob you were White House counsel. It seems to me that in the modern era you are kind of on the hot seat for pardons, I wonder if you agree and, in general, Margare, I'd like to give us a little sense of, practically ,how it works. What's the bureaucratic mechanism, what constituents do you take input from? How big a headache is it for you that the part of your practice as White House counsel that is part pardon applications?
Robert Bauer [00:25:51] Well, let me describe the headache. But before I do let me just respond to something Margaret said about the political messaging. That's why I use the phrase "narrowcast" political messaging. High minded messaging about false in the criminal justice system, it seems to me, particularly where they're focused on completely meritorious cases, strikes me as laudatory. I have no problem with that. Narrowcast political messaging is the use of the pardon power as an instrument for accomplishing narrow partisan political goals. Speaking to a specific constituency the president and saying, "Oh yes, look what I did. I rescued somebody -- may have committed the crime, may under normal pardoning criteria not be eligible for a pardon -- but I pardoned them because I'm scoring a political point that I'm sure you agree with.".
Robert Bauer [00:26:37] I find that problematic. I don't think it's been limited to the Trump administration, though in his usual fashion, he's done it with more brio and consistency than perhaps his predecessor. But I want to distinguish that form of political messaging from the kind that Margaret rightly defends. I also want to then turn to the question you asked and it's an opportunity for me to say something about the realities about the institutional presidency and Margaret's wish to kind of call back an era in which in which the Department of Justice was a help mate to the President. The Justice Department of Justice provided expertise and, frankly, some independent cover for the president who received pardon recommendations from those who, presumably, carefully screened the applications and put deserving pardon applicants in front of the president.
Robert Bauer [00:27:27] First of all, I take Rachel's point which is, I think, it is not realistic to assume that the Department of Justice is going to be particularly imaginative or assertive given the desire to defend its own work product. I think that's 100 percent correct. I agree with that. But there's another problem and that goes again to the modern presidency. There is no way in the world, given the very personal and political nature of the exercise of the pardon power, that the President in this instance, as in any other, wants to delegate decisions of this significance to bureaucrats. That's why it winds up that the White House counsel signs off on these issues, because it brings the whole exercise of the pardon power back within that circle that the president has come increasingly to rely upon at sixteen hundred Pennsylvania Avenue to protect the President's personal and political equities and all of these decisions.
Harry Litman [00:28:22] What do you -- Can you just elaborate--
Robert Bauer [00:28:23] Well, the suspicion -- if you go to the White -- I'll give you an example. You go today and look at the way the real estate in the White House is allocated. At least in my time, and I think this is not unusual, one of the smallest offices in the building is the office of the cabinet secretary. Why? Because, by and large, many presidents view the agencies and the cabinets to be a source of always looming threats of actions taken that the President has to own but that the President actually wasn't responsible for originally and hasn't developed. And so the desire is to control from the White House the risk environment advancing what is to the President's advantage, keeping from occurring what is to the President's disadvantage and it is for that reason that you're going to see people going directly to the White House and the White House responding to the direct appeals on pardons and being leery of arrangements that repose the fundamental work elsewhere where, if you will, there is not sort of the same reliable sense that the President's purposes are fully understood and being achieved.
Harry Litman [00:29:27] I mean, in that sense, it's almost like a political appointment. The same kind of kind of process and--
Robert Bauer [00:29:33] Ye,s that's right. And so I think one of the very many people have made the point and, not without justification, I think it's been overdrawn that the White House counsel is a complicated institution and I think by the way in this administration that has certainly been shown to be the case because it's one of the few administrations I know in which the White House counsel in the President of the United States have been literally openly at loggerheads with each other over a sustained period of time and the White House counsel was a leading witness against the president or at least in a matter involving the President in a criminal investigation. So it's a strange set of circumstances, but at least in the normal course, the White House counsel is the reliable source from within the building of advice to the President, consistent with what is the understood political, personal and policy priorities of the president. Not easily or comfortably delegated elsewhere in the government.
Harry Litman [00:30:24] In the government even because, Margaret I want to turn back to you, because in my understanding the White House counsel, the deliverable to the White House counse,l is a package that you've prepared with a lot of different views. I mean, one of the things that strike me as particularly controversial problematic about the Trump process is it seems so bypassed this the whole routine that you presided over. First ,do you agree? But second, just tell us a little bit about the kind of requirements a pardon applicant must make and what you're preparing for the White House counsel.
Margaret Love [00:31:01] Sure. In a way the pardon attorney is the staff for the White House counsel. There are hundreds of applications and it would be hard to staff all of the staff, in the sense of investigate, find out what they're all about, find out the facts, find out the merits in the White House. So you have to staff these things somewhere. And the pardon attorney was the staff. Now, unfortunately, Rachel is entirely right in describing the the general attitude of the Justice Department toward pardons and the pardon attorney had to work through the office of the Deputy Attorney General. And that was a big roadblock. Now, it didn't have to be and for 100 years it wasn't. And I guess that's my point and perhaps I am trying to recall a better time. Perhaps the government is sort of too big to function at this point as Bob's suggests.
Margaret Love [00:32:03] But still, if the White House counsel is going to be the linchpin to guide the president, to give the president advice, you have to have staff somewhere. And it seems to me that having that staff working in the Justice Department is as good a place as any. As long as there is an idea of what you want to do with the power and that's and that is the critical thing. I don't think there's been a lot of attention given to exactly what the agenda for the President's pardoning ought to be. I'm not sure that the president himself has ever been asked that by his by his counsel or anyone else. Obama had an agenda: To commute the drug sentences. That was, at least, a legitimate agenda. Unfortunately, the other part of the clemency agenda under Obama was severely neglected and that is the part that, at this point, I believe, is the most important part. Because the law, as Rachel was pointing out, does not provide for this sort of final end stage forgiveness, recognition of rehabilitation in the federal system. The states are going great guns and we've just put out a report.
Harry Litman [00:33:22] Yeah, that's important.
Margaret Love [00:33:23] Yeah. I mean, the states are really doing well and they are recognizing this problem of the War on Crime. That one third of the adult population in this country has a criminal record. One third. And that's what has to be dealt with in the states, as I said, are really doing a terrific job. The over 100 laws just in 2019 in the States.
Harry Litman [00:33:49] All right. So now let's move directly into the Trump administration. I mean, I would argue, again, as the least knowledgeable person of the four of us, that there is an agenda here in my view. And we're not talking about all that many pardons. It's a raw political agenda. It's tied up with a kind of loosely speaking theory of the unitary executive and the agenda is whatever the hell the president feels like on a given day will advance some some political whim of his own or, possibly, of what will please his base, no more, no less. Which to me strikes me as a very transgressive view and then we're we haven't even come to the arguably criminal use, which I would like to if we have time, of the pardon power as a vehicle to obstruct justice. But Rachel, I mean, your thinking about whether this administration has been particularly transgressive and whether really the only way to justify the approach it's taken is by positing just a broad plenary power for the President to do whatever the heck he feels like for whatever reason he feels like.
Rachel Barkow [00:35:10] So I will start by saying that I do think the way the pardon power is in our Constitution, it is a broad plenary power. You know, it just is. It's right there in Article 2 next to the commander in chief powers and the framers, the quote you read at the outset, really did think this was critical. It was critical. They knew about the bloody codes in England. They wanted there to be a mechanism to allow the president to use this and I believe they thought that the biggest check on abuses was going to be the political check. You know, if you didn't like what the President was doing. Vote him out. And, you know, one thing that's kind of interesting about the Trump grants, he's doing it in his first term. You know, I will say, when you look at what other presidents have done, they sneakily do it on their way out. If you take the Clinton pardon of Marc Rich right, which was as heinous of a grant as you could possibly think of and I'm going to let Margaret talk about that one--.
Harry Litman [00:36:01] Come on, as heinous as you could possibly think of?
Rachel Barkow [00:36:03] He was a fugitive from justice. He was a fugitive from justice and got a grant. It's hard to imagine a scenario that's frankly worse than someone who won't face the consequences of their criminal behavior. And he got a grant and he got it in the last days of the Clinton administration. You know, these grants, while I disagree with many of them on the merits, you know the Arpaio one we could talk about it but we know they happened and we can at the voting booth decide. Is this a human being that should occupy the position of the presidency in light of the decisions he's making? You know, I would say no. These are perfect examples of why this is someone who's unfit to be the president but--.
Harry Litman [00:36:39] Well of course if it's at the end of the second term, then there's just no political check?
Rachel Barkow [00:36:43] Well that's what I'm saying is kind of interesting here. Is that he did it in the first term as opposed to to waiting--
Harry Litman [00:36:46] That Trump did.
Margaret Love [00:36:49] Rachel if you look at the exercise of the power over time, it was always exercised in a very regular manner through a president's term. This piling up at the end, which people seem to think happens, only happened with Bill Clinton. It was the only time it ever happened. Now, sure there have been a few controversial grants at the end of presidents' terms but there was always a regular exercise beginning in the very first months of office and that's the way it really ought to work. And I do totally agree that the political check is the one that the that the framers intended. I always love the quote from James R. Iredale about how how a "check on the President's power was the fear on the damnation of his fame to all ages."
Harry Litman [00:37:38] That's seems be working pretty well these few last few years, doesn't it?
Robert Bauer [00:37:41] Can I just interject? I agree that that is clearly the understanding they have. But they had the understanding during a period of time, and I think everybody agrees with this, that they had actually no conception of how the institution of the presidency would evolve. So would they have wanted to grant the pardon power in quite the same with quite the same scope, had they understood where things were headed? There were debates, as I recall, not because I was there at the time although, you know, there were there were debates in the Constitutional Convention about potentially providing the Senate with some coordinate role in the granting of pardons and ultimately that was rejected. Would they have gone to that if they had seen the various ways in which constitutional authority under Article 2 has been used by presidents, expanded by presidents and the role that Congress has ceded, its own role, that it ceded with the growth of presidential power. I don't know, and that's why I'm not sure that sort of reflecting on the framers' intent is all that dispositive in these circumstances.
Harry Litman [00:38:42] And what about -- well let me just ask you -- I think it's -- I mean, in general, this theme of expansion of of executive power in a surprising way, that is by the kind of ceding of Congress is a big part of the story how we get here -- but I wonder, Bob, if you've a sense of how the pardon power and its modern day exercise fits within the broader context of arguable abuses of presidential power and the collapse of norms of conduct toward democratic institutions. We spoke yesterday with Jamie Gorelick and in that panel about a general collapse of norms having to do with the communications between DOJ and the White House. Do you see the pardon power issue here as part of a bigger story, whether it's just about Trump or presidents in the last, say, 30 or 40 years?
Robert Bauer [00:39:36] It could become a bigger story. I think that's why we have to be careful about how we define and the norms that we at least try to develop for the President's exercise of the pardon power. My view on the collapse of norms, for whatever it's worth, is that there are certain norms, like the ones that are supposed to protected independent Department of Justice, that we could have predicted would eventually start to fall apart under the enormous pressure of an expanding presidential authority. Why would a president, why would a president, given the expectations that devolve on the presidency, the claims that are made by presidents, the Congress regular conceding of its role to the President why would a president not want to assert maximum control over the Department of Justice and why wouldn't the norms that introduce those controls become less and less attractive to a president. So I think Donald Trump, again as always, takes things, at least rhetorically and sometimes in actions to the extreme, but I view the period of time during which in the growth of the modern presidency there has been this so-called independence, a zone of independence around the Department of Justice, to have been a very very short period post Watergate. After all, Watergate followed not too long after Jack Kennedy made Bobby Kennedy his Attorney General. And it was not the model, for example, when Jimmy Carter appointed Griffin Bell, for example, and there was this emphasis on independent Department of Justice. That norm, that very sharply defined norm of independence had a very very short shelf life.
Margaret Love [00:41:13] Let me just speak to this issue, take a little bit of a contrary view about the breakdown of norms. I I wanted to to point to this enactment last December and the pushing of these clemency cases into the courts as an example of the branches of government functioning really well. The executive sent the message. Obama sent the message: These sentences are too long. Maybe this is a goody two shoes view, but still, he sent the message. Congress heard. Congress passed the first step act. And now we have the possibility of sending clemency cases into the courts. So I think that really is a terrific example of of the tripartite structure of our government working really well.
Harry Litman [00:42:06] I mean, that's actually a good point. When you think of it in those terms, i's a classic checks and balances as we learned in fourth grade. It's a specific counterweight to legislative power as opposed to just an arrow in the executive's quiver.
Margaret Love [00:42:21] Although Congress took up the challenge. This is the thing. Congress heard. The sentences are too long. Congress changed the law. And that's a function of the pardon power to draw to drive law reform that I think it's a very healthy one. And Congress did its job. And now those cases need not be decided through the pardon power anymore. They can be decided through the courts.
Harry Litman [00:42:45] Well now I feel we're really in your backyard, Rachel . So let me ask you your view.
Rachel Barkow [00:42:50] I don't have as optimistic a view that the first step act is going to do that. I mean, I recognize that litigants are out there pursuing these cases, it's a mechanism that was previously called compassionate release and it was had been used for people who were facing terminal illnesses or they were the last remaining caregiver for a disabled minor child kind of situation. And before the Bureau of Prisons was not granting the gatekeeping role that it had to let those petitions go forward. And so the way that Congress fixed that was to say, "After you've exhausted trying to go through BP you can go directly to the courts." And I hope that it turns out the way that Margaret has described it where that we could see a really robust use of this in the courts for all any number of long sentences. But it's baseline was this idea of using it for things like terminal illness and really extraordinary situations. Not -- "I got a 20 year sentence and that's just too long." So I I actually think there is still very much a need for executive clemency because I don't think that the first step back is going to fill the void completely. I just want to make that one clarification.
Margaret Love [00:43:55] And Rachel, let me just say that it was the Department of Justice that announced that very narrow compassionate release frame on that statutory power that doesn't need to happen. If the Department changes its view and decides to use this mechanism as opposed to executive clemency then it can work well and it really, to me, depends upon -- it's a nice point where the department has an opportunity to take charge of this and make it work well to avoid the need for the pardon power.
Harry Litman [00:44:35] Bob, you had a point you wanted to make.
Robert Bauer [00:44:35] Yeah, I wanted to ask, just to get a sense of what my copanelists and you Harry think about this, I have not studied at great length the politics behind the enactment of the first step, but I have to say I am very skeptical it's because the Republicans in Congress suddenly decided to listen to Barack Obama. There were very powerful forces, including in the libertarian wing of the Republican Party, that, in effect, converged with the President's priorities to produce support for the enactment of this kind of relief and I agree with Rachel and I'm not an expert on this. I don't know where it's going to head and whether it's going to have the salutary consequences that that Margaret and, I suppose, all of us hope for it. But I really do want to address the institutional question of, "Can the pardon power be used by a president to, in effect, drive law reform?" Maybe in some eras. In this era I'm less clear and I don't know that I would pick the first step as my example.
Harry Litman [00:45:31] Rachel, that seems up your alley.
Rachel Barkow [00:45:34] Yeah, no I don't think that was a product of -- "Oh, President Obama showed us the light." First of all, I think he was reacting pretty late in the game to excessively long sentences. So I do think there's a grass roots political movement pointing out how long these sentences were. And the racial disparities behind them. But the first step act, in particular, was kind of an odd combination of political forces that included, first of all, Jared Kushner was absolutely critical in getting that passed. And, you know, part of that, I think, was a personal experience of having an incarcerated parent. I think it left an imprint on his life and he has really, you know, to his credit, has really kind of backed up what he said he was going to do in pursuing that issue. He was absolutely critical to this one.
Rachel Barkow [00:46:13] The legislation that ultimately passed, you know, had been working its way through the Senate for years and it included getting -- you know, Chuck Grassley started out skeptical and then became really a huge proponent behind it because he was getting a lot of pressure frankly from Iowans who wanted to see him do something -- so you know it's a variety of things that happen and lots of activists going door to door in the halls of Congress. Formerly incarcerated people meeting face to face made a big difference in getting it passed. But I would count myself along with Bob as not really seeing the kind of Obama messaging as the key thing. I think the Obama approach was reflecting this larger phenomenon of people really pushing for change. And I see both the Obama commutations and the first step act as really responding to that more grassroots effort.
Harry Litman [00:46:58] Okay, I want to raise one more point and then we may we may have time for a question or two from the audience if anyone wants to offer one. I think, listening to everyone, I feel I've had maybe too flip a view coming in about Trump's own exercise of the pardon power and how transgressive it's been. I've seen it as very much so. But so let me cut to the 64000 dollar example of the, you know, dangling of pardons. So we've had many instances in which it seems that there's been communication with -- without going on the facts -- take it as as the supposition is true that somebody reaches out to encourage a witness not to talk or not to cooperate with a kind of unspoken wink and a nod. So there's no political check here. Nobody can be open about it. That if you support the the position of the President there will be a reward down the line. Now I would add that as a prosecutor I would have thought of this as a fairly classic instance of obstruction of justice and the mere fact that the pardon power is plenary and,as Rachel says is, you know, listed simply in Article 2 and without any kind of limitations, would nevertheless be a serious crime. So I want to ask your view, because there have been other exponents over the last few years who say, "Look, no. It's a plenary power. You do with it what you what you will. It's like any other political tool." If if this were a valid charge against the President would it would it be serious and momentous or would it just reflect a new day in which the power has simply become one political expedient to to choose to to deploy as as he or she will?
Margaret Love [00:48:56] I'll take a crack at that. First of all, yes. The pardon power is plenary. The President can take a bribe, can obstruct justice, the pardon that he grants in doing that is not invalidated for this--
Harry Litman [00:49:11] It doesn't matter his motives?
Margaret Love [00:49:12] No. No, no. Wait, just one moment, let me just say the other half of it. Yes. If the president takes money, if he is corrupt, if he obstructs justice. Pace at all this business about whether you can indict the sitting president. That is illegal criminal conduct. He can be prosecuted for that. It doesn't invalidate the pardon. That's sort of the bifurcation there. Corrupt use of the pardon power can be managed in the criminal justice system, but it does not invalidate what the president does. And that's why, ultimately, it is a political check that you have to rely on.
Harry Litman [00:49:52] But let's distinguish now between a bribe, which is a separate crime, and the mere dangling. Because one answer has been: "Well if it's a separate crime..." But I would certainly defend the position that you wouldn't have to have a statutory bribe -- you could obstruct within the definition of obstruct by doing this conduct -- but there'd be a constitutional defense and I guess we're arguing about or discussing the merits of that now. Bob, thoughts?
Robert Bauer [00:50:16] So you're talking about in a proceeding, using the dangling the pardon as a means of either preventing someone from, discouraging someone from testifying or shaping their testimony.
Harry Litman [00:50:27] Perfect.
Harry Litman [00:50:27] Yes, exactly. As you might not be surprised to hear my view is that that is problematic--.
Harry Litman [00:50:34] Criminal?
Robert Bauer [00:50:35] Yes, I think it could be. I mean, all of these cases are very fact sensitive, of course. And so, precisely what sort of evidence is adduced to show what the intent was behind the offer of the pardon in the circumstance it was offered to the witness whose testimony in specifics was involved. I think all of that would have some bearing on my judgment about whether it was a criminal in a particular case. But I certainly think if the president jumps into a proceeding, and by the way, if it's one in which self-protection is a motive, I think that really does raise the stakes criminally, significantly. And attempts, in effect, to shape the proceedings by using the pardon power. I would like to see that case, again if the facts line up properly criminally prosecuted. And I just want to add, political check among the voters. You know I'm skeptical how much of a price voters pay. I'm not even certain by the way that Gerald Ford is so often sort of the urban myth is that he lost the election in 1976 because of the pardon of Richard Nixon and, indeed, when he issued it it was extremely unpopular at the time. Whether it's, in fact, what accounted for the outcome of a very close election, I am less sure. But I'm not, and I don't think that if Donald Trump wins or loses in 2020, that it will because of the pardons that he issued in his first term. Congress, however, does have a role to play. Granted, it's a plenary power. But as we saw in the case of the Clinton pardons, Congress can inquire, put pressure, utilize a whole range of legislative levers to express disapproval and to try to, if you will, herd the president toward the observance of some critical norms.
Harry Litman [00:52:09] Yeah, Podesta was on a very very hot sea,t wasn't he? Right after the election.
Rachel Barkow [00:52:14] Professor Barkow, Last words to you.
Rachel Barkow [00:52:17] So I agree that this is grounds for obstruction of justice. I think, you know, it's tricky because you have to show that it was done with the corrupt intent to influence a proceeding and so I think it's just a question of proof. You know, if it the president wrote "Dear Diary, Tomorrow I'm going to offer a pardon--".
Harry Litman [00:52:34] Videotape.
Rachel Barkow [00:52:34] -- You know, I'm going to offer a pardon to, you know, pick your person who he might offer it to, you know, so that the case doesn't, you know, hey'll be favorable witness for me later. Then I think that's a slam dunk case for obstruction of justice because we'd have evidence of the intent. I think you don't get insulated just by virtue of the fact you have a power that you could lawfully exercise if you use it for unlawful purposes. And I think the law is pretty clear on that. You know, it's the same with bribery. You can't say, "If you pay me money, I'm going to use my lawful ability to vote for X." Yeah, you have the power to vote for whatever you want but it becomes unlawful when you do it because you were paid to do it. So I think that part is is clear. I just think it's hard to prove that it was done with a corrupt intent because it is this plenary power. You know unless you have the dear diary entry the President's going to say, "No, you know, I just think this was a case of excessive prosecution," or "I've told you all along I thought this was a terrible instance of government overreach and that's why I'm doing it." So I just think it's a proof matter as opposed to this conceptual matter of could it be prosecuted.
Harry Litman [00:53:32] Right, which really brings us to back to the overall theme of these six episodes we're taping in Washington because this really is an after Mueller problem and we've inherited now a report where intent is the critical item of proof. And yet, Mueller chose not to subpoena the president and not to chase other possible lines of testimony, even while asserting in the report, it was because he felt they already had adequate testimony which presumably would have been on the intent piece. But that becomes a little bit afield of this particular panel. Well, what do you say? Shall we -- I think we have time for a question or two if anyone in the audience has one on the on the pardon power.
Questioner #1 [00:54:18] Hi, it's Jill Dash. I'm the Vice President for Strategic Engagement at ACS. Thank you for putting on this podcast for us all to be the live audience. I wanted to ask you, Bob, you talk about the political effect than the calming effect of Ford pardoning Nixon and we're talking about potential crimes being created by the current president. So, have you thought forward a couple of years about, you know, if this president were to be prosecuted for some action that he's taken while in office, if it would make sense because of some precedent by you know Gerald Ford or just because this is the way we do things that's a norm now to pardon the President or what would be different this time?
Robert Bauer [00:54:58] Yes. Well, first of all I didn't, by the way, I didn't suggest that I thought it had that calming effect, it was extremely unpopular when it was issued. I think later it came to be thought, and again this is you know currents of opinion that can change over time, that Ford did it for the right reasons and that maybe over the long run people would look back and conclude he did it correctly. I happen not to have been one of Richard Nixon's warmest fans, so I won't deny I was vaguely disappointed. But in any event, having said that I don't think it's established a norm at all. I think would be very dangerous for us to, once again, wind up in a position where we say, "Well, the Office of Legal Counsel, assuming that opinion stands, prohibits the prosecution of the President while in office. However, the President can be prosecuted once the President leaves office. However, we have a norm that says once out of office the president shouldn't be prosecuted." Reminds me that old joke about there's a door and it says knock before entering and above it it says don't knock. I mean, there's no possible way the President is ever ever responsible for criminal acts committed as president. So no, I wouldn't. I would view that norm as very very dangerous. I think the question of whether the pardon is used in those circumstances is extremely context sensitive.
Harry Litman [00:56:09] I'd just add one point and, again my very inexpert way, which is it is good to bear in mind it's going to feel very different at that point. There will be some very reasonable currents of opinion saying, "Let's let it go." There's, right now, a very tempestuous blood in the water kind of atmosphere about all these things and when it's actually in a post Trump administration, I think the flames will have cooled quite a bit.
Robert Bauer [00:56:36] May I just say, he isn't done yet. (LAUGHTER)
Harry Litman [00:56:39] In fact, this came up yesterday and the point was, well ,it could be it could be six years from now. Oh my God. (LAUGHTER)
Robert Bauer [00:56:46] What I mean by that is judging how we feel about it depends on what he continues to do between now and then. Right?
Margaret Love [00:56:55] Well, the one thing that I would hope for going forward is that we would really think about how we need to use, how the President needs to use the pardon power and set up a procedure that will help him do that and keep him out of trouble and, hopefully, have the pardon power play the kind of functional role that it has played in the past.
Harry Litman [00:57:21] All right. I think that is all we have time for thank you so much Bob, Margaret, Rachel, for a really illuminating and expert conversation about the pardon power and yes, as Bob's last comment makes clear, I don't think we're done yet with controversial exercises that will test the very point of what is the notion and purpose behind this powe, what stretches it too far, and what is within the strike zone of, at least, modern uses by a president.
Harry Litman [00:57:57] Thank you very much to Bon, Margaret, and Rachel and thank you very much listeners for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcast or wherever they get their podcasts. And please take a moment to rate and review this podcast. You can follow us on Twitter @talkingfedspod to find out about future episodes and other Fed related content. And you can also check us out on the web and talkingfeds.com, where we have full episode transcripts.
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Harry Litman [00:58:45] Thanks for tuning in. And don't worry as long as you need answers the Feds will keep talking. Talking Feds is produced by Jennie Josephson, Dave Moldovan, Anthony Lemos, and Rebecca Lopatin. David Lieberman is our contributing writer. Production assistance by Sarah Philipoom, Michelle Bo Lieu and Courtney Columbus. Transcripts by Matthew C. Flanagan.
Harry Litman [00:59:15] Thanks very much to Georgetown Law School's Institute for Constitutional Advocacy and Protection for hosting us for this entire six episode series. And thanks to the American Constitution Society for co-hosting this episode. Thanks to the incredible Philip Glass who graciously lets us to use his music. Talking Feds is a production of Dalito LLC. I'm Harry Litman. See you next time.