kim, i'm delighted to be here

with you very much enjoyed. your book and i learned from it. i noted that this is really the latest in a series of books that written, all of which seem designed to explain aspects of the legal system to laypeople and maybe law students and with something even for people who've been in the field. why at this time did you choose to write about the pardon power for next book rather than some other topic? yeah. so this is the fourth in a series and each title has the tagline and why so the idea behind of these books is to convey why we have a constitution why we have certain kinds voting access laws and here pardon. which is really a holdover from an unlimited monarchy in we talk a lot now about the rule of law. we talk about for elected

officials and honestly the editors of this book knew that coming to the election the of how much power should be lodged in a president be certainly discussed don't know that they could anticipate that it's really the ballot and i would argue pardon in the scope of the president's powers the ballot in november this year i think that's probably right before. we get into the aspects of the book. one of the things that i learned or actually knew, but people will learn from the book is that pardons come in three flavors. there is what we think of as the pardon, which is a president kind of waves a wand and someone gets out of jail. there are commutation options of sentences and there amnesties. could you just briefly what the difference between these three flavors and how they're rooted in the constitution right? so i'll start with amnesty. amnesty is like a mass pardon to

address some kind of conflict or discord or mistrusted miscarriage of justice within the populace. so for example, jimmy carter pardoned, people who had dodged the draft after the vietnam war with the we need to move on. so that's a traditional idea that part of their president's commander, chief power, the head of the executive branch, he can make those executive branch decisions. and there might be political pushback some people argue that jimmy carter lost his bid for reelection, in part because that then there's the individual will pardons, which the umbrella term would be clemency, a pardon for gives an offense it doesn't wipe it clean complete. but the idea is you were convicted or charged and going to take that and forgive it a commutation is like parole where the president or or board depending on the state will

shorten your sentence let you out prison earlier the constitution doesn't make distinctions it just says it refers to pardons and give any definition of the term pardons. as you know, there's a lot in the constitution that doesn't have definitions. and the sort of the supreme court is sort of given some definitions, pardons, but not very many. and we also have some understanding of pardons just based on how presidents have used them. so gerald ford pardoned richard and richard nixon had even been charged with anything. so that sort of stands as a piece of history to suggest that presidents can pardon people when they haven't even been charged with something. but not clear in the constitution. there's kinds of ambiguities, but there's this mythology that somehow the pardon power like that of king george, the third king pardons be conditioned in the same way. parole can be conditioned even

they're not commutations or. yeah. so back to abraham lincoln's time, he conditioned pardons of confederate soldiers or people and participated in the civil war on behalf of the the confederacy. he conditioned those on taking an oath to that the national government in my book, john, who was white house counsel for richard nixon, writes the foreword and he talks about how he drafted a conditional pardon for a very high pardon, a jimmy hoffa gangster or teamster union organizer. ah, and that was later the conditional pardon by mr. claiming that that it was on he lost that. but that is also in our history now not expressed in the constitution your book it's incredibly wide ranging you know it goes back at a couple of paragraphs to the hammurabi code and something like.

1600 or 1800 b.c. and it almost ends up going into the future about what might and what we should do, just taking the period that gave rise to our system, which is following the norman invasion. 1066 in britain where the pardons and the king's pardon became really part of the anglo-american legal system, it seems that the start i mean even from like the 12th century, the kinds of issues regarding pardons that caused some eyebrows to be raised are still with us mainly corruption and the pardons are sold and access that only certain privilege people are likely to get pardons. so with this history, how has the pardon power can you say more about the abuses, the pardon power that we've had over

our history? sure. we talked about the different kinds of pardons write amnesty, commutation and pardons we'll just talk about that. i think are different versions of the pardon. it's just that forgiveness of an individual in theory it is supposed to be about mercy and back in the origins of if if we take when there were british there wasn't a constitution. the idea was that a lot of justice. so to speak, was was resolved among private parties. there was sort of a hatfields and mccoys type retribution for for murder or theft against the family. and you took matters into your own hands. and then the kim came in and, shifted to the backdrop of that. no, it's not a crime against the family it's actually a crime against me. i'm king there's something this idea of the divine right of

kings that the king's power came god, that if if someone slayed the king on the battlefield the notion is that victor was supposed to be king because anointed them. so the king in and says i will pardon people who have had been you know miscarriage of justice and back then as as you know there was no functioning criminal justice system. there wasn't a federal rules of criminal procedure. there was not the fourth, fifth, sixth amendment. there were not appeals and and various kinds measures to ensure that. people weren't abused through the criminal justice system. that being said, kings, you know, hand out pardons, cronies to protect themselves. they would pardon people to get them to go to the new world. they pardoned people to get them to, you know, join an army that definitely, you know, between that period and between the

ratification constitution, there was what's known this enlightenment period where these thinkers of were thinking about liberty and government by the people. but those limitations didn't make it into constitution and the pardon power. so as you say certainly in the late 20th and the 21st century, we've seen i think really since bill clinton, most prominently and or even before that, h.w. bush presidents using pardons midnight pardons on the way out of office. george w bush said, listen, i don't think this is a great idea. there's this flurry of people with access that want these favors at the and it really kind got crossed the rubicon in the trump administration, where presidents are using the pardon power to their friends for allies donors and to protect themselves from oversight. and there's just no way the framers of the constitution

would have endorsed that but they probably didn't anticipate lots of things about the 21st century. yeah i want to get there first. just sort of a side note, is it to say with only slight exaggeration that but for the pardon power australia would not have been settled? oh, i don't know you know more about that. it sounds like that i i'm just that the pardon was used as know to on the condition that criminals emigrate right australia and actually originally to emigrate to our country right exactly so you know we'll put those bad bad guys or whatever over and that that far off landed kind of clean up. i mean there's some vestiges of that in our current political conversation as well which is a topic for another day but sure yeah and were just a lot fewer people on the planet back then too so there lots of things that are different from from back then and now, you know, turning now where you were going to the constitutional by the time the

convention occurred, the abuses of the pardon power were well known not just in england, but also here. and when you read the, you know, the discussion around article of the constitution, which created the executive branch, one thing that stands out is that with few exceptions most of the framers did not want us to have a king they wanted us to have something was consistent with a republican form of government. they called it the president. and yet they put this power, this language with no real limitation surrounding it into the constitution. why do you think they did that? yeah. so just for for that aren't legal thinkers or lawyers. yeah. this idea of a republican form of government, i like to think of it as triangle. so a monarch is at the pinnacle. the president, the monarch has

the authority from god and doles it out as he or she sees fit. in a democracy, you flip the the people are in power and it trickles down to whoever's holding the power and you can fire them at the ballot box. they took the monarchy and they basically broke it into three parts. the executive branch, legislative congress and judicial branch. and i think there was a lot of concern about a congress, a congress that goes is out of control. and this of populism. so i think there was there was a sense possibly of just distrust of the elected branches and the people that somehow you needed ultimate measure of justice and mercy to tamp down on abuses by the other two branches. and there proposals to constrain the pardon power to require senate confirmation, at least ban pardons for treason, etc. but but that hamilton and

madison, i think, ultimately sort of prevailed. and this idea that there needs to be this ability to bestow mercy injustices. and i think there was also a sense that, you know, presidents will be upstanding people with integrity. there were not that many people to choose from back then. they all participated of in everything and kind of moved around government. they were mainly wealthy males. and so i think that too, i think is changed from today where political system has become so much complicated. we have so much misinformation online. there's more distortions that, leak that sort of filter in to who gets into politician and political positions. and maybe at the founding although i'm not a i'm not a legal historian, others might disagree with me on that. so to use your words, we've been given a system where let me just quote a line i like in the book. the president can pardon anyone

any time for anything that is that's the under and that's the basic premise. i think that many people, even lawyers, even judges operate from. and that wasn't even the case at the time of the signing of the constitution. you know, part had gained power, which is the equivalent of the congress and in england and there were restraints that had been over the years some with varying success on the king's ability to so so it's a little not only i mean i agree with you that that we should all agree more kings. but there was a revolutionary war on that. but the idea that that the framers were somehow empowering a president, a democratically elected president with more power than the british kings. it just doesn't make sense as a matter of logic so that is i think the general assumption. and then i talk about in the book the courts chipped away at that but that that is and we

sort of live with it for some reason. we just accept that this is just part of our government. yeah, i was struck by your that they had this assumption that people would be honorable, you wouldn't need the power and i guess with george washington is kind the presumptive president in an image that was a very reasonable assumption. i'm wondering also did the just put too much faith in impeachment thinking that congress itself would be honorable, if you will, and while you wanted a deterrent force, it was impeachment. and what happens? yeah, i would agree with you. so so the only expressed limitation that is the only thing that presidents can't under the plain language of the constitution is part of people who have been impeached and convicted. and we've seen this with the last multiple impeachment s two to have donald trump, bill clinton that there this clause

in the constitution, the impeachment clause, it's in a number of places the idea that if you want to fire a president, that's how you do it. and so with a functioning impeachment. clause, arguably there is a check on pardon power that if there was an abuse of pardon, there could be an impeachment. now, the one of the problems with that, of course, is timing because as as we discussed, a lot, these pardons happened on the last day in office. if you're not up for reelection, you're got it's too late. so and we saw with the second trump impeachment, the senate took the position that once a president is no longer in office. there is no possibility of impeachment. and then in addition, i argue that just impeachment has become a political football. it's not a mechanism anymore. so we're now at a point where maybe just by virtue of history, the pardon power is become like a king than even it was at the time of ratification in the constitution in 1788. you know, i guess i would differ slightly with one thing you said

57 members of the senate did not take the position that president could not be pardoned. one of the things that makes is you know as well as i do makes impeachment so difficult is the supermajority great parliament. great point, which is like the filibuster but sure were plenty of people but they just weren't enough. get over the hump so. absolutely. yeah. yeah. great point. i don't mean to put words in your and correct me if i'm wrong, but reading the whole book if there's any core message that i came away with it it was that you were creating a case against pardon system as it exists that could be briefly summarized by saying pardons are often given to those who don't deserve them and they are seldom given to people who do deserve them is that capture sort of the gist of your meta message, this book? i think that's right. right. so the prison population is just

skyrocketed and, pardons simultaneously down. so fewer fewer people are getting pardons and there are lobbyists in washington that take money to try to pardon. so so your get pardons for presidents, for their clients, lawyers. so they're rudy giuliani famously so, you're more likely to get mercy of the president if you're close to the president, you have money and you have power meanwhile, as i talk about in the book, the exoneration by judges of people that have miscarriages of justice are disproportionately for people of color. i mean, we have all these other myths, miscarriages of justice within, our criminal system, the pardons not fixing them at all. if we have issues with that, it's really about mercy. we should reforming the system, you know, the rules, the standard, the appeals, habeas, things like that. not assume the president is

going to somehow like the king make sure that know you're not it's not trial by fire. and if you die. then you know, you die in a in a dispute, a before there was a jury trial, for example, king might have to come in and i talk about a case in the 13th century where a little girl a year old girl by mistake, pushed her into boiling water and the brother died. and without the pardon, she would have had some pretty harsh punishment. we have a system now that it didn't improve it, but we have a system, rules of evidence, trials, appeals, all those things, rights that are that are in place to address. and we also have parole. but since i think the early eighties. there's no in the federal system anymore. so the really the only way to get people out of federal prison early would be through a pardon and presidents just aren't doing you know you just alluded to lobby and others as part of the

way the system quote works there. there are of course, two sides to the system. there's the way also is supposed to work for ordinary people who no special access. i wonder you could elaborate on these two sides. first, could you just give an of someone who successfully lobbied for a pardon there probably not have been given and how they managed to do it and. well let me let me leave it there for the moment and then i'll ask you the other side. well, sort of the back story around the lobbying pardons. we don't necessarily know because there isn't any requirement that a president give explanation for pardons. the early 20th century presidents reviewed every pardon application themselves. and oftentimes the attorney general would give an explanation. but, of course, i mean, you know, one example under the

trump administration is very day a guy by the name of jonathan braun, who he he he pardoned him and just a last week, i think went out later to be arrested for first malt. there were six members of congress that were involved to the january insurrection. and john eastman and rudy giuliani to his who asked for pardons in connection with that that roger stone and paul manafort both were convicted in connection with the robert investigation into russian interference in the 2016 election. and donald publicly said you know, praise them for not flipping. and the judge i think it was in roger sentencing made a statement on the record that this looked like was buying silence. so so there you know, there are almost too many to mention it happened under the clinton administration as well.

marc rich, a famous he was a financier and donor to various clinton causes. he was pardoned. there was a lot of pushback and critique in that instance congress opened an investigation. there was even an out of the southern district of new york criminal investigation that the rich pardon was a pay for play pardon that was basically a bribe, that there was money that didn't end in any in any kind charges. but i would argue that you know, this is across the board with the constitution. if there's no people will try to game the system. i mean i an example from everyday life if you're driving down the street and you see a speed limit that's 35 miles an hour, you'll go 45 until you get the ticket in the mail speeding from the the hidden camera. it's ticket in the mail that gets gets people to comply with boundaries. so if we don't want corrupt pardons, need some tickets for speeding through those boundaries.

and i think the depth of the potential corruption pardons, we probably don't know because. it's not made public officially and not something really that even the media, the press has delved into much. and that's oftentimes how we get a lot of information about our government. and let's look at the other side. suppose i'm an ordinary criminal or citizen who feels i deserve a pardon. maybe, though this is usually at the state level, but let me make it federal. i'm a woman who's been abused by her husband or boyfriend and eventually broke and killed him. and now i'm in prison for life and i want to get a pardon or commutation. what is the procedure that this person would follow. so we have to pardon systems. we've been talking primarily about the system for federal crimes. yeah i want to state of federal. i make this in d.c. the word happened. okay. so so for federal crimes the doj

has, an office of pardon attorneys that has a multimillion dollar budget. i think there are 11 full time attorneys are in that that arrangement and there's an application but the application actually you're not eligible through the office of pardon attorney's for a pardon unless you you're five years past finishing sentence. donald trump i think less than 50% of his pardons are significantly less money being bet a quarter bypassed that entirely. so your hypothetical person would have to finish her. and then five years after, apply for a pardon. now commutations are different, but but i will use an example. a woman by the name of alice marie johnson, who is in prison involved with for a drug she applied for commutation or under president obama. it wasn't until kim kardashian got involved that donald trump issued her clemency. so even for the regular person

to get to the top of the pile. i think there were 11,000 applications pending when trump took and another 11,000 after he took office to get to top of the pile. you to have money influence or maybe some kind of public scrutiny. your case that gets the of the president. yeah i know that when obama was president, one of his pardon attorneys resigned and saying she didn't think the office enough resources to process cases and clearly it was quite frustrated by that you just that you have to be like five years past your sentence to even go through this process why would somebody who has a sentence has been out five years of care about getting a pardon yeah so it can carry chain you know benefits to being out in the world it doesn't necessarily

exonerate and wipe your record clean but it can help you vote it can help you get licenses for certain kind of businesses. and also i think want to clear their name. there's that element of two of the two. but but to your point, it's really the commutations that probably are the best. you know, the best bang for your buck if you've got a 20 year sentence and you get out at three or get out of five, you get out of ten. like the gentleman that i turn turns around to commit more crimes. that's a problem for presidents to be concerned about. but if you really are someone that was in and got a unfairly sentence or, you were rehabilitated or reformed and could actually contribute to society a commutation. give me helpful and let me just add one other point. i don't think americans understand expensive it is to people to prison. so i think there's a really good argument that even from the taxpayer standpoint, using a pardon or clemency process, a little more rigorous would

actually save a lot of because there are a lot of people that are in prison for a long sentences for crimes where they're not necessarily going to kind of, you know, do damage to society. and we've also have new technology i mean, we know dna is pretty reliable. and we also know just based on statistics that there are people that to the death chamber who are innocent. so you know, i argue in the book that if president wanted to really exercise the mercy idea behind the pardon power, why just pardon who our modern technology demonstrates are innocent are innocent. but honestly even in the in the doj application, there isn't a criterion around innocence. it's really about admission of guilt and and, you know, remorse and things that so that it's surprisingly idea that we might be taking people's away who shouldn't have their liberty away that's not making its very

often into pardon calculus. you know one of the perverse aspects of our parole system and i think the your book allude to this is the pardon system is if you really are innocent one of the criteria you mentioned for pardons is showing remorse. so the person who on principle will not admit guilt because they're innocent becomes less eligible for pardons. isn't that right? right. and exactly. it's and the the sort criminal justice system as well the mechanisms for through what's called a writ of habeas corpus to get out of prison. the supreme case law really makes it so that proof of of innocence after your conviction really get you out either unless you can show somehow the process was unconstitutional that you didn't get some rights. but this we are we are definitely spending millions and millions, millions of taxpayer dollars and increasingly incarcerating people without a

mechanism making sure that those dollars aren't wasted and people's liberty is unfairly taken away. i mean, this is the idea behind the due process clause life, liberty or property can't be taken away by the government without some kind of a hearing. but the idea liberty is about the monarchs, this divine power, just throwing somebody jail because they don't like your politics or they don't like you and. you know, back to the other point. i think instead of sort this vestige of this monarchy, this pardon power, i would argue and many others do it much more eloquently informed than i do, that they're more needs to be paid to reform in the criminal justice system, not just around fairness to the individuals, but also around. is this really where we want to be spending our taxpayer dollars or do we want to have a mechanism to at least sort out so one, the people that are definitely innocent based on our modern technology no longer being held in prisons that cost us all of us, a lot of money.

yeah. when i asked you about this hypothetical woman who killed abuser, you reference the states because of those cases are state cases. very few federal crimes that sort is the pardon exercised governors, as are their pardon, the same as the pardon powers the president or since read your book. how do they differ. yeah so yes and this is surprising too there are many more state and so many more state prosecutions in state convictions and federal and, you know, just like we had three branches of government, the federal level, each state their three branches. they each state has a legislature, each state has a judicial branch and judges and each state has a mini, which we call a governor. but only a handful of states where that the governor has the kind of authority that presidents do. the majority of them it's shared

with like a board sometimes with you, you know, experts from different walks of life i know you're an expert in, say, sociology and psychology as well as law, they might have to get, you know, conditioned by or get senate buy in from the legislature. there are as i just indicated, rules even applying for these that you have to have served your sentence and across the globe most countries with the exception of china have some version of a pardon power but very does it have this king like power that we the bastions of democracy in america seem to just blindly accept as the way things go in america. so i you know, we'll probably get to this. i argue the book and others have that there are reasonable constraints to bring the pardon power within, the rubric of the whole constitution, which is government by the people and no one's the boss of everybody and we don't want kings anymore.

why we have a king for something like particularly because it could abused to obstruct justice to silence witnesses. you things that presidents can do to to entrench their power it. i don't you know it seems like it's time for reform fighting the governor of a state and i'm thinking about pardoning this criminal again let me use my women hypothetical suppose i partner and she somebody else again why should i risk that as a governor that the political blowback is is this something that governors actually are concerned about when the exercise their power? well that famously happened with mike huckabee arkansas governor mike huckabee in arkansas, he pardoned someone in nine years later went out and he killed multiple police officers. so that is that's a risk. that's a risk that judges take. that's a risk that juries take. there's governors that have that regretted certain or not giving pardons, sending somebody to the

death chamber. jerry brown's dad in california, governor wrote about pardons and how, you know, the end of his term just was really troubled by the amount power that's lodged in one in one person. i would argue you know that that the idea that this governor or president can basically wipe out the work of the other two branches, wipe the laws that congress passed banning certain crimes, wipe out the judicial system where that person has been adjudicated, that itself is we should give some scrutiny to and as you indicate maybe that's at least at the federal level, the the number of pardons and commutations has gone back down because with the exception of presidents obama and biden since reagan, every president, including bill clinton, have run for political office on this

tough on crime stance. so there's again, there's a psychological assumption that we should just put as many people behind bars as possible to keep safe. and it's a political risk for sure to. maybe get that wrong. you you mentioned the, you know, states different constraints on governors. some have boards that do much of the work or have much of the authority and others have other ways of limiting the ability of governor to just issue pardons willy nilly federal system. of course different with the constitution vesting the pardon power the president but in your book you do suggest that even in federal system there may ways to constrain if i will not exactly limit but at least constrain the ability of the president to give pardons. you say a few words about you think are those limits are and

what can be done. yeah so first it could be done through the court system. i don't know that this supreme court, particularly in light of the criminal immunity for presidents that we were talking about before, there are conversation, i don't know that the supreme court tolerate limits, but most of the constitution is balanced by other interests. so the court has found, for example, that a president can't pardon someone against his will, can't pardon someone and say, okay now you have to i'd lift. i'm pardoning you so you don't have your fifth amendment right to self incriminate anymore. you must testify. you can't do that. i mentioned presidents cannot pardon crimes that have yet to be committed. president s there's some language in a concurring opinion about you can't pardon people in violation of the equal protection clause. for example, if a president were really racist and were to come in and just pardoned, you know, any person that is caucasian based on that, that would violate the equal protection

clause or there's language that if a president were just to flip a coin maybe that would violate due process. i mean, so there's all there's all that that would have to somehow make its way through courts. but i also argue that congress could in that and the idea that you can limit the pardon power the presidents or the the supreme already done it, that congress could impose reasonable limits, at least pass legislation, and then that go through the courts, for example, some kind of of pardons or record bans on lobbying. we talked about lobbying. should people be making you know? i think rudy giuliani reportedly was was offering was saying, i'll you know, i'll pick pardon for a couple of million dollars. jared kushner, the president's in law, his father got a pardon and he was responsible for reportedly i think there's some dispute on that. but he was central to the last minute pardons. so limits on that kind of pay

for play pardons express limits on, bribery in exchange for pardons. of course, the impeachment clause specifically mentions bribery as a grounds for impeachment. so, you know, you and i are lawyers, law professors. we can talk about the nuances of how the supreme court would do this. but i'm a big believer in government in the sunshine. so at a minimum, seems to me we should know what's going on. and then i would also argue maybe instead of having justice department lawyers that are one step away from the very prosecutor who put them in, put these people in jail through the criminal justice system, there could be more like a clemency board that even made recommendations to the president even if they weren't binding. and that board could include, you know, psychologists, maybe people that have been in the criminal justice system. it could explain it from the inside from other kinds of experts, not just prosecutors. make those recommendations to the president maybe we'd have a fair system. but i also suggest that the

congress could guidelines out there. this is mercy pardons should be for this is what amnesty should be for. again, maybe they're not binding, but sometimes law i mention this the tickets for speeding but sometimes just law it's out and there's political pressure to just an act of congress so putting some effort into constraining the pardon power could itself have some effect. and i'll say one other thing george w bush, when he left office, made a suggestion that new presidents announce a policy for pardoning so the public could also put pressure. we want know president x, what are you going to do when? it comes to these clemency applications. are you going to favor the rich and powerful with access that can give a big donation once they're no in prison? or are you going to really look at applicants that are had these extraordinary sentences maybe, you know, juveniles, for example that are not contributing or

being being unable to contribute other ways of looking at that if we're going to keep it and unless we amend the it's there to stay. you talked about the president's power is kind of overriding the other two branches of the judiciary and the congress. interesting feature of the british king system in 1617, maybe early 18th century. was that king would ask judges who would sentence people to death if they thought this person deserved a pardon. so judge, by sentence, 50 people to death. and when the king tell them to pardon, 40 of them would, is this something that ever happens? the have an input into whether pardons are granted or would it be a good idea for the attorney, the president, to go back to the judge and say, what do you think there might be in certain states? don't might.

i think that i think there are in certain states a requirement that you get some kind of statement from the judge. now, of course, in england, some of those sentences were mandatory. so death was the penalty for a lot of petty crimes and judges didn't the discretion. so again, the pardon power really was necessary to fill in the blanks for a justice system, justice system that didn't actually function and exist. you know, i, i don't know about kind of the constitutional of it, but i would certainly argue that a judge is a more and probably more neutral than even prosecutors make those recommendations because the judge sat through all the evidence. they're not jury that a jury of the defendant's. but there are there are so many different ways that countries across the globe constrained the pardon power that it really just stands out that at the federal level. the united isn't doing it. we're way behind the and we're

also one of the few countries in the world that call itself a democracy that contemplate a death penalty. so we also have extremely harsh, severe penalties without a mechanism at the federal level to really miscarriages of justice. other the pardon power. and as i said, the early days, a lot more pardons by presidents, a lot fewer crimes. i think, you know, 2600 federal prisoners and ten now that's 70% increase. and donald trump issued clemency to fewer than 2% of his application. so so it's really not making drop in the bucket, so to speak, when it comes to addressing miscarriages of justice in and conveying. that's interesting, you know, the problem of sort of too few pardons, both given money, but also just simply justice and mercy because of what presidents

do, could congress pass an alternative pardons system to exclude the president or not diminish the president's power? but could congress a pardon board which would have a similar power well issue pardons there used be parole in the federal government, right? i mean, at the federal system and parole like a pardon or commutation where you go before a parole board and you can get a lesser sentence or can get supervised release, you can get out early. so certainly they could create a parallel system call whatever you want to call it, to address these. you, the unfairness in the system and let the. but that doesn't do anything about the corrupt pardons, which i hope we get chance to talk about the immunity decision because would argue that, you know, take the pardon power and you put it together with the criminal immunity for presidents decision by the court and then you really have a problem with a

potential crime spree in the white house that, you know, people say, oh, that'll never happen. but the framers, that wasn't good enough for the framers they did create a government with limited powers. the idea that it could happen. so that's where i think that possibility of criminal presidents is where the pardon power in moment is particularly, you know, i will come back to that in a minute because it's so important. but i just want to follow through on my question. it's true that we can have parole, but parole does not remove some of the incidents of a felony conviction like an able to vote, like being able to able to get certain licenses for professions. so in terms of giving you a complete pardon rather than just the commutation including pardons available to people who've served their sentences, does congress have the power. well, that's a that's alavi or article in the making and it's already my head is spinning a little bit. you know, the argument is i

think the argument against that would be it's very clear that it belongs to the president and in again the immunity decision the made clear that's a core power the president so someone would say one might say if congress were to encroach on that that would be a problem. certainly the court has already said if congress to override a pardon, that's a problem that happened during the civil war where abraham basically said, you know, i've been to pardon you and get your property back if you're confederates. congress came and said, no, no no, you can't. we don't you don't get to get your property. if you engage in the rebellion. the supreme court said, no, no, no. lincoln's pardon governs, but but i think the flipside is congress has the power to legislate power. congress has, the power to create the federal criminal code. all of that is laws passed by congress. why can't they have off ramps

and call it a pardon, call it whatever you want as part of their legislative power. and it would be parallel the president's power. so i think i think there'd be a strong argument that they could do that i haven't really noodled that through, but it's a great idea. okay. so let me go back to the question want to address, because it is so very important that if i understand under our current the president could go up to a group of people and say, look i want you to disrupt this and prevent from voting. and while you may be convicted of a crime, i will pardon you for that crime. well, let's just say more that in the danger poses so so viewers might know that there's nothing in the constitution about criminal immunity for presidents. what is immunity? immunity means scot free. you can commit crime. the police can see you do it. there's nothing they can do. the supreme court created that for president.

said can commit crimes in office and no oversight. but only if use official power did us a definition. but i like to use this example. imagine murder was federal crime which you know, generally it isn't. but imagine a president takes out his private and shoot someone. that would be because he just doesn't like this person, that might be a private act. you could prosecute that. if the president says, i want to i want to assassinate a political rival so i can stay power, i'm going to have to use official to do that. the official power is going to be lodged in the military. it's going to be lodged in federal law enforcement officials. so the president's going to have to get someone else execute that assassination under this rubric of official power. now that person is going to say, i'm not going to do that for you because i'm not president. i don't get immunity. and the president can say, well, i'll pardon you right. so if you take that immunity and you add perspective, pardon us

for people that are willing to with the president, then you then you really have a problem. you have just mayhem because presidents have powers that nobody else does on the planet right, just like police officers. if a police officer puts your put you in zip ties and throws you in the car, it's a legal arrest. unless you convince a judge let you out. if i do it, it's a kidnaping and i'm going to jail right. so. so i think that's that's seriously a problem. you talk about elections. it's not just assassinations, all kinds of power that the president use the president's power over the irs military, all these spyware, all these things, if you're going to get someone to to do commit a crime for you so you can stay in power. we just saw it in venezuela, right? we saw an election where super majority. you know, was a millions of votes against the incumbent. and he just refused to refuse to leave. so if you've got a president that says, listen i'm not going

to leave and i'm going direct people my military to just not allow the new president to take office, i'm in of the military, that's official power. i'll pardon anybody that does for me. i don't know what the court would say about that at this. that's a tough one, right? but it's a dangerous one. and it's a one that it's one that i would argue that even though it's a rare scenario, we should we should prevent it. i want to dig a bit deeper. this is i think the whole topic raises, some other issues about the boundaries of pardons. so first, as you said, you can't pardon the person before a crime has been can committed. it seems that you can pardon the person, after there's been an indictment. but what about that period between the commission of the crime and the indictment could president have said to everybody

there were any trials, let's say in the january six episode. i'm everybody who invaded the capital on january six though no one has been yet charged with a crime, he i think, as i mentioned earlier, that precedent of gerald ford pardoning nixon and he had not been indicted. and that was it has been treated as a valid pardon. the supreme court never blessed it, but that was a pardon before there's an actual indictment it's after the crimes committed. the other thing i would say is the supreme court held in the immunity decision that evidence about official acts can't go before juries. so i also kind of wonder whether that's something that could run away with us and create this confidence reality bubble that we might know right about these pardons. so it's a it's a question that

might get litigated. i don't know. so those are my two two response to that. i think would be a good argument that the commission of the crime prior to an indictment and you could still pardon it. i think probably this court would uphold that. why the ford pardon precedent, as you say, it was, ford was never charged. i mean, nixon was never charged. and therefore, there was never an occasion for the court to rule on it. it was something that was accepted by his successors. but why should that figure in the next case when? we talk about precedent. we really mean legal process, we talk precedent. and what i meant is historical precedent said right, i mean, set. walter when he was senator, right after that, proposed a constitutional amendment to address the nixon pardon there's an amendment pending right now, the house of representatives, that would override the immunity decision ban presidents ability

to pardon themselves. we haven't gotten a chance. talk about that. so so the congress is aware that this is a problem. i would argue it agree with you legally legally that isn't a precedent. but it's so widely accepted. i mean, this is one of the reasons i wrote the book is to just disabuse those or try to try to get people to think twice about this almost knee jerk reactive assumption that when it comes to pardons, presidents or kings that that's that's kind of the behind it and that would be one of the most famous pardons american history that i think you i are now as law professors are noodling idea that maybe that wasn't an effective it's kind of beside the point i don't know but you did five justices to agree with that. so many things to talk about that connection. so can presidents pardon well, the answer to that is it's not really the right in that i say

it's if they pardon themselves, is there a ticket for speeding. but i know the disparity. your question is do i think that that would be constitutional. i mean as a matter of common, you know, just legal what we call common history of law, there's this idea that should be the judge in their own case like, okay, kimberley is charged with a crime and kimberly's the judge, of course, the judge is already always to say kimberly didn't commit the crime and doesn't to go to prison and that's the idea behind self-pardon. how can how can a president be the congress? the judge the jury, the appeals courts and prosecutor in their own case? right. but there are many people that disagree with that idea. but but primarily it's again, falling back, this mythology that we are is a it is a monarchy when it comes to pardons. and as i as i say in the book, i just think that's wrong and unfortunately, i think the court in this latest immunity decision

was a little cavalier around the pardon kind of suggested that it is absolute. but they haven't seen the case that maybe going to have to carve out another exception to the pardon power. yeah, another aspect of the ford pardon of nixon, which may even be more troublesome than it was pre indictment. i think it is is it was open ended it didn't specify the crimes for which nixon was pardoned so choose not to pick on trump anymore even ford suppose president biden before he left office was to say i have changed my mind. i've decided to pardon hunter and not only have a pardon hunter for the crimes in which he's been convicted, i pardoned hunter for any crimes which she may have committed during the course of my presidency or the ten years before. would that be a valid pardon? yeah, that i think is an open

question and i mentioned in the book this idea that, okay, crimes are committed. they're nonspecific. there is some case law that that you know a pardon isn't actually made known and accepted to the recipient isn't a valid. and i think there's a strong argument to say any conceivable that was committed in last four years in office by anyone in, my administration, through the exercise of my official power, hereby pardoned. that would sort of upend the constitution. but these are law school hypothetical right now. we don't have anything that says you can't do that, which means people can try it, which means we might get into real crisis before we get some clarity. that and the question is how much the precedent of precedent ford. i mean, i'd like to think that it not mean very much. and one of the things, again, you just alluded to and you mentioned in your book is that the standard learning has been the pardons have to be accepted.

if there's a secret pardon, can someone accept it in secret and then pull it out. yeah. that later that precedent in the context of a judge that it had to be actually accepted in court. yeah these are all these are all problems that now become more real again when you have brand new immunity, criminal immunity for presidents. and so you get a not not a very a guy with a woman with not a lot of integrity thinking. okay, how can i really use this power and again you're you have expertise in sociology psychology. but i would that the framers understood that it's human nature to have amass entrench and abuse power all hope we're good people. but that's why when you get a job you work you're bartender they'll be you got to count the cops or you got to measure the vodka in the bottle or you count the dollars in the in the cash register at end of the day, because otherwise you still might if you're the owner you

could hire the best people possible. they might steal from me. you don't know what their life is like. so you have to have constraints. you have have accountability. or if they're robbed blind, the restaurant will close. and that's what i argue, that if we don't put some, you know, corks in these holes, the restaurant of democracy one day should close and we should all care about it. it's not just democrats problems. it's not just republic problems. it's everyone's problems. and for some of us who have who are under age, that is, they can't vote yet it's incumbent on to use our our relative influence now to protect system for them because they can't even vote. they're just not old enough. so it's they're really relying on us to hold this for future generations, which is why i appreciate this kind of conversation so much because i don't we can really understand how important that is unless we get into some of the theory, like doing like why do we even have a constitution?

is it supposed to function? well, i in a sense hope we don't have the occasion to elucidate some of these questions in near future. so very interesting book. and i think it's led us to have an interesting conversation let me thank you very much and let me encourage who wants to know more about the pardon system beginning in something like 1600 b.c. and extending into the future to get kim's. well, thank you so much, rick. it's been a absolute pleasure having conversation with you. thank you.