continues. host: welcome back. we're joined now by university of baltimore school of law professor kim wehle, who is also

a abc news legal contributor and a assistant u.s. attorney, and the author of t fort coming■j book "pardon powe: how the pardon system works and why." thankuch for joining "washington journal." guest: good morning, great to be here.t the supreme court. and before we start talking about specific cases, when is the supreme court scheduled to be finished this term? it seems like they have a lot oa cases left on the docket. guest: well, they added another day this week, so we should hear from themednesday, thursday, friday. but as you indicate, there's about a dozen cases still waiting to be delivered, and there's some major issues, crimr donald trump and other presidents, also ano&%ther big criminal case that could affect hundreds of january 6 insurrectionists who have been convicted for their role on that day,nd a handful of cases involving the intersection of the first amendment and social media. lot coming down.

justice alito was not on the bench for two days week, so we can speculate. my guess is we'll get it apped and maybe it will go into july, but that would be ua answers from the court. host: you mentioned theanuary 6. you write in politico magazine that this case could be theiantd upend jack smith's prosecution . and i wonder if you can talk a little bit more about that case, which is different from the immunity case. guest: it haslly to do with dond trump much he's not named in that particular case. but there counts in the criminal indictment relating to january 6 against donald trump. two of the four countsr a statug challenged in that separate case, the fisher case by a plaintiff, or defendant who's appealed by the name of mr. fis claiming

that that statute, from the sarbanes-oxley act, which was enacted after the enron health meltdown, he's saying you can't use thatto pro. there's lots of ways the court could narrow a rulin could eithe government completely, or if it sides fo mr. fisher, it could do it in aaffect the president,n theory it could. that's why i say■] it's a sleepg giant. if it could knock out half of the four counts,■ obstruction of an official investigation and conspiracy to obstruct an official inves the four counts that jack smith's team brought against donald trump, that, of course, d a big impact on that stalled because of the immunity case that the supreme court took up. ho: one case that's already been decided was that case the y

8-1 margin that federal law to domestic violence restraining orders from having firearms. s to know about thatrtant thing ruling in particular? guest: the important thing is court, majority seems to to have pulled back on its very broad protections under the second amendment that it handed down a couple ago in a case called bruin. traditionally the second amendment was interpreted effectively to say, ok, let's look athehte sure the public is safe, and we'll make sure that congress properly made that balance.■ two years ago in this case, the carry permit law out of new york that was 100 years old and said we have a new test now. that balancing anymore. instead we're going to go the te of the second amendment, around that was enacted, and we're going say, is there a parallel

gun law then? if there's no parallel gun law back then, congress couldn't restrict it today. so lower courts were really afte looking for -- some of the lower courts mirror image of something when it w muskets, and we certainly didn't have the kind of ar-15 technical weapons we have today. in this radio hundredee case, the court said no, we didn't that, we mean something sort of substantially similar and the principle behind the gun lawñ]y essentially said, listen, back then there were laws to keep guns away dangerous people, keeping guns■i away from domestc violence abusers so they can't er 900 women have already been economy abusers this year a-- by domestic violence

abusers this year.ntially we'lls upheld under the second amendmentk' understood were constitutional prior to this case. so it's a for guns rights advocates and for women.s ago, so he's been left out+■n the cold in his very stricken sent reading of second amendment rightshost: chief justice roberu wrote when a restraining order contns an finding that an individual poses a criminal threat to the safety of a partner, that individual amendment, be banned from possessing firearms while the order is in effect. since the founding our nation's firearm laws have included provisions preventing individuals who threaten physical harm rom misusing firearms. now, you brought up something there about clarence thomas and sort of the interpretation of historical precedent and things like that, and there seems to be

a bit of a division coming up between clarence thomas and some of the other conservatives on the court over this. can you get into that? est: listeners might have heard of original i am, textualism. it's a mythology in that the conservatives have suggested that the best way to read the constitutions time and to not interpret it. and thomas. in justice thomas' defense, he's saying that really means you have to find a law from the timt bans domestic violence abusers from owning guns. if you're going to be intellectually hes about that, you have to actually have the same thinghave now. the majority is kind of moving more towards a approach, which is really the most logical approach. old, it's vague. as i said earlier, the o test

was you kind of balance public safety against protections for gun so the conservatives are saying we're going stick with originalism, but we're not going to look for a mirror image. we're going to instead kind look at the principles behind the gun law at the time of theee principles are similar to the se today. that, frankly, is a lot like what morero justices are doing or have been doing de the living constitution principle, tt that means exercig discretion. i think we're departing here in the majority is realizing the stringent reading is not workable. justic concurring opinion catalogued a really long the lower courts that are really confused since that decision. 'rking us to be historians. we don't have the expertise in

history, in what gun laws looked like then. but honestly, this is the psalm thing the court did in dobbs. we're going to go back in we're going to become historians and judges. i think what we're seeing with this rahimi case, the majority is acknowledging that's 2024, n, and congress' j firearms cannot be with certain kinds of people is that we should respect happen through the legislative process and through the ballot system essentially and we're not going to touch host: this shows up between justices barrett a trademark case, in a recent opinion over trademark law, justice barrett seemed to take a shot at justice thomas, saying the court claims that "history and tradition settle the constitutionality of the names cause," whichs s about, "rendert unnecessary to

for gauging whether a gistration abridges the right to free speech." that is wrong first, could you briefly summarize this case andxp this e barrett stood out so much. guest: this comes from an old case, and essentially, and she saysin the rahimi case, if you're going to■uvs do tradition and history, which piece of history do you pick? if you're going to pick a of history, how many pieces of evidence in that history are enough to create some generalized sense of whether way or the other? so i think it's sticking with guns for a moment, the hundred year old expel carry law th■o i mention from the new york state. that's an old lawful it's 100 years years old. the courtwn the permit requirement in new york. some would say a hundred years

is a hundred years. and justice thomas said that's not enough. though there are ots that upheld concealed carry rmites to pick these other laws and say that's our history ak in both oe opinions, justice bare set test. we don't really know what meansd tradition, how much history, which parts of history. and again, to my here we are having judges have to exercise discretion, have tot argue, and i think this is in the trademark cases, some might, listen, congress has already done that for us. congress is accountable to the voters, at the polls. if the voters don't like the gun the voters don't like the trademark law that congress enacted, they can vote new members■ into office. if we let the supreme court do

, ■7thhether you're republican or democrat, you have no s anymore. noticing you can o unless you amend the constitution. so i think barrett is acknowledging in both of these cases that maybe this is too mu power to give the supreme court. there is no black and white. history and tradition is still not a black and white test. under the separation of powers, maybe the court should start deferring to congressnd let the voters decide which members of congress they want to chae host: if you all have questions. republican 202-748-8001. democrats, 202 independents, 2l before we go to calls, i want to talk a bit about some of the ethics queio supreme court. we've had plenty of headlines, like this one at npr.org, justice alito declines to recuse himself in january 6-relate

cases. obviousl related to the flag issue that was well covered elsewhere.w york times" and justice alito issued a statement over the controversy, saying no recusal wasec here spn "washington journal" about thisy centers discussing the recent sties about justice alito and the flag in front of his home. here's a portion of those ents. >> the aftermath of this despite, a reporter went down there and determinedha simple ad dispute.ng to the reporter, that this was a sign of distress, no■q one back then thought this was a stop the steal. and l t■ weeks ago, i can't

imagine that one person ind in y reason to associate an upside-down fg with sale moven t address the point irrelevant, because whatever mrs. alito meant by it had no bearing on his obligation to sit in this case. and again, you sited the standard for recusal. what comes first is a general■to the narrow exception.2@ specifically justice alito's response to the request for him to recuse from some of these cases much a reasonable person who is not motivate by political or ideological considerations or a desire to affect the outcome of supreme court cases would conclude that this event does not meet the standard for accusal. i am therefore duty-bound reject your recusal request. and that up in

axios. is this matter closed, do you think? effectively it might be, because there's no mechanism to so his point is a factual an arn the underlying factual scenario, the relationship between mr. and mrs. alito, neighbor, what do people believe that sign means.w, that kind of thing is resolved at a or if you had some kind of an oversight board, they might hear testimonn as to whether this is something or not that justice alito should around. the problem with this is that th no accountability mechanism. there's no way to test justice alito's assertions, and because■ judges, federal judges are there for life, the standard reallys e appearance of a conflict of interest. if the's even a question, some

would argue, and i would agree, th because the legitimacy of the court is so important. if america the legitimacy of the court, if they don't believe it's neutral, the idea they're going to be apolitical. they don't havut being re-elected. but if people just think it's a political court based on things like this, then eventually into its outcome, and you could have chao the chief justice roberts, he has not stepp up to do anything to really take steps publicly to hold justices thomay disturbing conflicts of interest wheer you think they're factually accurate or not, or rise to the level of he point. they created chaos, and they the court, and congress could step in, but congress so far hasn't of legislation would rare a super■d

be filibustered by theion that justices thomas and alito really are harming the institution itself and creating a lot o concern among americans, and it's real and legitimate. host: let's go to your calls now. john is in wisconsin on our line for independents. what's your question? caller: good morning. thanksorakg as a law-abiding citizen and gun owner, and living in the state of wisconsin, just on the city of milwaukee, the horrible comment that mr. trump made, there's been 10 and killings in the last month in this city of. when it comes to the supreme slipperyng, i think it's a slope. i mean, domestic abusers still have the right to go in with a baseball bat, i mean, do you

want to outlaw baseball and like that, and golfing? because i■tean, the illegal gune street, which is probably where the majority weapons are, came from right now that i just described earlith milwaukee. they're illegal guns. we need to start putting with il guns in jail. and then you're also takingol te right away from that person to protect their home and the family that they may have now, if it was from a prior marriage or something like that. and one more thing, the go■ove was mental fitness. and with know, a friend of mined call up somebody say i think this person is, you know, has a mentaland i think that you should take his guns away, just randomly, willy-nilly, without really any -- let kim respond to some of those points you made.

guest: i thipw john's point is really a policy whether guns should be regular guide this way. and under the questionregulate the guns, but s to regulate theuns. we have states, state legislators, state judge stutioe federal level we've got the congress, and we've got the supreme court. so here, the domestics been in e 1994. that was enai"cted and essentially the court is saying here, even underu know, l of these -- all parts of the constitution you have to balance various interests. but they're essentially sayg if people want more or less gun regulation, the benefit of having it be in congress isike e

different gun laws one can go te ballot box in november andtheir. the people then are in power. if the sre and second guesses congress on this, doesn't second guess congress on that, there's no oversight for the supreme court,ou can't vote them out of office, there's no way to have an appeal from■c them, that needs nine people who are not elected to ultimately become the bosses of the country, almost like kings whether it's first systemment rights, second amendment rights, abortion rights, of these thinga pr the ultimate discretion to make policy judgments about what kind of guns we do and do not want. and the secondnd the court makes really clear, is not absolute. there's nothing specialsecond as different than, say, the first amendment, where you can't hd child abuse imagery on your

computer. some mighty, that's part of howt to express myself. for example, the illegal, that s kids. likewi can say guns hurt people, so we're going to restrain guns. and agree that it shouldn't be the supreme court to make that ultimate decision. host: let's hear next from paul in for democrats. host: good morning.g, america. caller: while i was waiting, i've been reading up on the mendment and the initial thinking of it was talking aboue originalistsce thomas. you have to put yourself back id firearms to hunt, to put meat on the table. the shore of america, the

coastline, which was developing militia was needed because me didn't want a standing army. they saw what happened to standing armies in europe, and they knew thnt one here. but it's morphed into th thing now where, you know, we have half of believes that guns are their legitimate god-given right, and no matter how many bullets it sets out, it still should legal. host: paul, what is your question for kim? caller: my question is, who wrote it, what was 1791 in e that they felt they this? because at the same time, england had been having mass shootings, and they were doing away with firearms. ho: let's go ahead and thank you for the history, but i'm wondering if you can, kim, bring us back to the present with sort of what this means for the

conversation m forward. guest: well, he makes an excellent point in that the thes not defined. there's no definitio and so an originalist could say arms, if we're 1791, arms only means the guns that were available in conservay depart from the that and said, no, we can have modern guns, even if you're going back too 1791, and i want to make one additional point. until 2008, in a case called heller that wasstice scalia, ity militias tt rights. prior to 2008, the supreme court did not the second amendment to protect the individual right t@ube the court said you can have pistols in your home for self-defense, but it's really expanded dramatically b i agree, there's a misunderstanding somehow and a mythology that the second

amendment has this umbrella right that supersedes other interests and rights in the consti■rtution■y. it's just not true historically, and it's not true under the case law of the supreme court. host: henry in georgia on our line for republicans. good question? hi there, we'll try to get henry back next up, we'll hear from huntersville, north carolina, on our line for democrat caller: yes, good morning, than. my question is, if every current legal issue that the judges are handling is subject to aion tesy rulinging that was ruled on longí ago, and if it's never been ruled on befor w issues get added to the history and tradion lis for ruling?

when does history that's my question. thank you. host: thanks for your call. guest: it's an excellent question. i think the answeis pkg never. and the big question really is whetr this history and tradition test and expands it beyond the two places they really emphasized it, which is gun rights and abortion rights. tradition and extend it to marriage? to contraception? do you take history and tradition and extend it to medical independence, the ability to make your own decisions about your healthcare? we don't know, but it is■[ a mar shift in interpretation of the constitution. host: up is rick in new york on our line for independents. good morning, rick. caller: hi. you very much for taking my call.

i love c-span, and i'm really happy you're talking about ethics. urn, we're seeing the n within all of our bo■di of government, certainly in the congress,ta the supreme court, and even in s president, of course. so i've heard many times that the former president trump has asked president biden to take a dr test before this debate coming up. i would suggeha he wholeheartedly accept that challenge on one condition. host: and do you have any questions about the you have ans about the supreme■zcaller: i di. if the supreme court and the president during the debate can take polygraphs while they are speaking?

that is a useful tool -- host: let's get your thoughts guest: someone would either have to do itich is what the sitting president would have to do, to having the supreme court justices take polygraphs or some other kind of#x standard, it would have to come to the u.s. congress. t independently on their own. i think there are od arguments -- i have a new column next week in politico on one way that congress could rein in the supr that is consistent with conservative thinking under constitution. we will have to see. host: springfield, massachusetts, the line for democrats. caller: thank you for taking my call. thank you to your guest for informing us about these ethics questions. myconcern is gun safety. i would like to know from rstanf

gun safety by the supreme court. what can the legal profession do to make sure we are addressing this life-and-death problem? host: thank you for your qution, tthew. guest: i think that we will see more of a shift initigation. i think that lawyers are going to want gun safety, are going to start walking through the door that was reasonably opened to protect gun laws as they exist. while you can bats, knives, the problem with guns right now is suicide. you're more likely to have a death in your family if you have a gun in your house for self-defense by virtue of suicide then you will p family . the chances of death with the gun arch higher than the

chances of death with some other kind of weapon. the other thing that i've written about is the united states congress has enacted powerful immunity laws for gun manufacturers. they cannot be shis with tobacc. once lawsuits started happening, then corporations, tobacco corporations and gun corporations, their profit margins required them to make safe -- or in this case, tobacco. ilawsuitsers to make their guns using technology using more safe hands of congress, out of the handsfee markets adjust it. thtinker with the immunity law that other manufactu dangerous objects. host: matthews, north carolina

republicans, good morning, rick. caller: i believe the reason the supreme court is given lifetime terms is ■ú■@ -- is because libs can't challenge everything they do. nstitution. people just can't get -- especially a lawyer, to get on there and besmirch the supreme court. c-span has hit a new low. thank you. host: what about the idea -- go ahead. guest: the constitution exists to protect everyone. there b times that conservatives have been very upset with the supreme court over the years. my view, i like to think of the constitution like a over a very dangerous river. sometimes there are cops in blue

uniforms in chargemetimes cops in red uniforms directing traffic and in charge. if the bridge falls, the constitution itself no longer protects everyone, e0

rights based on someone having unaccountable power. ■zit is the structure and not te politics that motivates me as a hoboken, new jersey on the line for independents. what is your question? caller: thank you for taking my i agree with what she is saying, but the problem is, it is not just the supreme court. it is the whole government that has beenitd. if you speak out against anything you will be demonized. 5e weaponized with words. it is not ju the-- taken $4 million the last few years in special interests, right. if you speak out against anything, if you say going to ir ukrae,4 weaponized. you will be attacked. most peopldort.

most people don't have the money to run for office. now, she is saying go vote and make congress help out, congress has been corrupted. aybe two people in congress don't take money from special interests. special interests and special -- whatever -- are basically taking ■4■+over our country. you can't speak out, you can't run for office unless you are backed by them. it is interesting that you mention that. a supreme court decision that actually allowed more corporateoney into congress, correct? guest: i did a column on this last week. i write about this if people want to look at my work. instagram @kimwehle and there is a link tree to all of these cles. i don't mean to suggest that congress is the answer. together and take back their

government through every possible lever. the supreme court struck n 5 -- effectively struck that down, making it easier for states to keep legitimate voters from the ballot. 's united basically gave corporations knowledge that they like living, b people. they can spend unlim amounts on ads as long as they do not directly coordinate with candidates. like the■g caller and myself, i don't have billions of dollars s my voice is drowned out. i can only give $3300 to any particular candidate. if you can do it under the guise of the first amendment as a it is now protected under the constitution and the about it thanks to the supreme

court. i don't have the easy answers. a few years ago i was definitely more positive. but i am also a mother and i think that we have to protect and fight for our rights for our kids. the last point that i want to make is i think on theed onlinee misinformation spreading online, different news into each one of our phones under the guise of news that is tailobiases, this e problem. the framersd direct democracy where you the votes because they were worried about bad information people voting against their interests based on lies. they could not have igial probl. we have to go back to education and teaching and learning how to sort garbage -- xb ko basic education and teaching andrning how to sort garbage from good information.

it's very easy to make bad information. president trump on the campaign trail has pledged to pardon january 6 rioters. he is facing pressure to name names of speciyou have a forthc, pardon power, how the pardon system works and why. can you tell us about the book and why you want to put this out now? guest: the publisher asked me to ■write it because i have a seris on civics education. i take the complex constitutional stuff■ into engl. the pardon powers come up. we have not just donaldrump that the presidents have used thpact themselves. there is a big debate as to himself.commit a ncs in the oval office, name whoever, joe shmo

commits a bunch of crimes in the himself on the way out and now you have a crime spree in e president has more r than anyone in thene fbi, the c, the military. if they can commit crim using that power we are in big trouble. i argue that justik the second amendment the pardon power is not absolute. ted and presidents can pardon any federal crime. that's not true. i debunk that and i say this like other parts of theconstituo reasonably balance it against the the people and protecting against the two po to win the white house again, if he pardoned the january 6 insurrectionists, that would be within the scope of his power under the pardon clause. and then it would be up to the votersnd this the kind of thing that we want the pardon powersed for? that would be different than a

self-pardon. ar self-pardon should be unconstitutional because that would insate presidents from any accountability for committing crimes for their own self interest i-- which is not ok. host: loretta, democrats line, good caller: kim, that was a perfect it is regarding the immunity part of this, the case with trump. what in the world could the supreme court be thinking of? insurrection is not part of the president's duty. i don't understand. what it looks like to me is that theyp their own catch and kill. ow they can do nothing about.

it's show, especially with trump, but it has spilled overnt you look at what's going on in trump stole our secret the hell is they thinking about?we don't even know what hd with the ones he had. host: we are running a little low on time. you want to talk about the gree with the caller. this should be easy. let the trial decide if donald trump ispi guilty. in theory, the idea that presidents can incite rebellions against the government is somehow immunized, that shodthet easy case, but expanded the problem. we are not just going to look at january 6 and if those actions, in theory, would be protected

from immunity. we will legislate a constitutional standard. again, i think that the court is getting ahead of its skie ands -- of its skis and taking more power than it it should be narrowing these quon that -- if we give anyone power and they don't have any checks and balances, if through the speed limit. i think that is what we are seeing on the supreme court. there needs to be a disincti be. i think it's very disturbing that the court has to manufacture immunity, whatever flavor it is. if it goes beyond january 6, which it sounds like the court is going to do, that ier you are republican or democrat can come back to bite the american

people. host: on the line for go ahead, virginia. please turn down the volume on your tv. caller: i have a question regarding the gun■■b i think she stated somethiaboute suicides. gun owners having them in their a pistol, or whatever. i understood that it was domestic morthan likely? the wife? i'm curious what the cor■ was. i did not know 50% were suicides. i stand corrected if so. guest:■& don't have the actual statistical numbers, that i have interviewed experts on gun safety who said that in terms of the numbersf have a gun in your home you are actually making your family less safe. if someone i suicide and they get a hold of the gun there is almost a 100% chance of success. if they are forced to use some

other mechanismood they will not succeed inill survive. people think that i need my guns so that i can shoot an intruder if needed, but the chances of that are much, much lower than someone you care about getting a hold of the gun and hurting themselves. thes in having the gun in your home it is more statistically likely than protecting your family. 50-something so far this year murds from people who are domestic abusers. yes, it's po to keep them out of the hands of domestic abusers in order to protect women, primarily, from that kind of outcome. host: some numbers thai nter log

at data from 2021. suicides accounted for more than half of u.s. gun deaths in withc year afterthat is all of the tie have for this to kim wehleimorew professor and abc news legal contributor and the author of a forthcoming book "pardon power: how the pardon power works and why."■@■k$■■8u