sense of community and less of the individual. so i think it's unpredictable, but change will be a constant. our guest is john greenspan. he's the author of the age of acrimony how americans fought to fix their democracy. he's also author of the new book that just came out earlier this year, wide awake the forgotten force that elected lincoln and spurred the civil war. john, thank you so much for being with us today. oh, thank you, terry. that does it for today's washington journal. we'll be back tomorrow morning at 7 a.m. eastern for a m pacific with another edition of washington journal. enjoy the rest of your day. joining us now to discuss

presidents and pardon power is a former u.s. assistant assistant u.s. attorney and legal contributor for abc news, kimberly whaley. good morning. good morning. thanks for being with us. this is you. you also have a new book came out over the summer and it is called pardon power how the pardon system works and why it's your fourth book, that is, and why. tell us why you chose to focus on pardon powers for this one, because it's sort of the next logical step in the series and that the first book is how to read the constitution and why basics are unconstitutional. law. and then when i finish that, i realized, wow, actually, all of the constitution leads to voting. the voting has so much power. democratic and we don't have an affirmative right to vote anywhere in the constitution. so i wrote that book to understand voting. and then we sort of got into a national conversation around polarization and political parties, divisiveness.

my third book then said, well, let's take this tools of lawyers, where you have to understand your opponent's best case. you have to think about broader societal implications. you have to understand you're never going to win everything you think you deserve. and i wrote a book called how to think like a lawyer and why with us step by step process for communicating with someone that you might be on the other side. and then we're getting into this election. and this fourth book, the pardon power stands at this intersection between these competing concepts. we're talking about over and over again, the power of the people versus some kind of unlimited king like power, which is the pardon power, the idea of mercy, which is the theory behind the pardon power. but also the idea of corruption, which is right there smack dab with the pardon power. and even historically, there's a conflict between law, the pardon power being part of the president's legal authority, but

also there has a religious connotation to it. it it's it goes all the way back to the new testament, where punctures pilot at the romans request, denied a pardon to jesus of nazareth, gave it to a murderer named barabbas. jesus was crucified. and it actually gave birth to the entire christian religion was around a pardon. so i think it it's kind of a this center point that gives an opportunity to talk about all these other important issues that i think are so live in our nation right now. and we often hear a lot about pardons at the end of a presidential term when someone is getting ready to leave office. when we hear pardon, what does that mean? and explain the different types of pardons. pardon. means forgiveness. so it's different from an exoneration for a crime. if you want your record completely wiped out like it didn't exist, you've got to go to a judge and go through that process. a pardon is in hindsight, you're

forgiven, but it does have practical implications if your pardoned while you're still in prison, you would be able to leave early. but it also can in certain states, lift some of the the the negative connotations from a pardon. maybe in a certain state. you if you have a felony conviction, you can't vote. it could lift that or you can't apply for certain certifications for jobs. it would lift that the the other two kinds of pardons are a commutation, which is it forgiveness for the pardon, but it just shortens your sentence. so those are for folks that are in prison. that wouldn't be a full pardon, that you're exonerated, you're forgiven for the crime. but the idea is that you're in there for too long and we'll let you out early under certain circumstances. the third category of pardon is known as amnesty pardons. and that just means a lot of pardons at once. and a president who does that usually has something else in

mind. but side leads the need for mercy and on an individual basis, jimmy carter pardoned the draft dodgers in the vietnam war. the idea being we don't want to continue to debate the war. we continue the conflict around whether these people were acting justly or not or pardon them so we can move on to the future as a country and who can grant pardons to who and for what. so the the article two of the constitution says that the president shall have the power to grant reprieves and pardons for offenses against the united states, except in cases of impeachment. very short, doesn't give us a definition of pardons, doesn't give a definition of reprieves. it does say offenses against the united states. so that means presidents cannot pardon offenses against states. so if you if you if you commit a crime under state law, cannot be

helped by a presidential pardon. and then it specifically says pardon, presidents can't pardon impeachment. so for presidents convicted on articles of impeachment, he can't turn around and pardon himself for that. beyond that. you know, the language is pretty narrow. pretty broad, really. when i say narrow, there's just not a lot of exceptions in the constitution. and there hasn't been a lot of opportunity for the supreme court to explain what all of this means. there's been some tweaking of it. i would say probably the most prominent expansion of that power. when i say expansion, you think of it traditionally someone committed a crime, convicted of a crime. you're pardoned of the crime would be gerald ford's pardon of richard nixon after watergate, because in that instance, there was an indictment out of richard nixon ready to go. and apparently from speaking to those prosecutors, my understanding is there were crimes that weren't included in

even that indictment. there were additional crimes. they believed that richard nixon had committed. they don't they they chose a certain smaller batch of them for the indictment. but ford decided to broaden the pardon to not just what was listed in the indictment, but any possible crimes that were committed within a particular time period. so with that historical standard and also what jimmy carter did, i think as a matter of history, not necessarily as a matter of constitutional law or supreme court case law, we all understood the pardon to mean it can apply to to basically immunize people from indictments over a certain period of time. that's already happened. the court has indicated you can't give someone a pardon to go out and commit crimes in the future. you can't just create a immunized criminal to run around and do whatever they want the rest of your life. it has to be for past actions. but in this moment, it doesn't look like there's any authority

to say you have to actually have a and an indictment and a charge that specific. and your book looks at historical. the historical pardons that many presidents have made. and of course, another one has been in the headlines this past week, and that is that president biden issued a full and unconditional pardon to a son, hunter biden. what is your reaction to that? my reaction to that was it was to be expected for a number of reasons. i know people tended to be upset about the fact that he said multiple times that he would not pardon his son and then either either knew that he was still going to pardon his son or. changed his mind. but in terms of the hunter biden question itself, it wasn't to me, it wasn't out of line or corrupt for a number of reasons. one is that president twice

before have have pardoned family members. bill clinton pardoned his brother and donald trump pardoned his son in law. his father, jared kushner's father, charles, and has since tapped him to be ambassador of france. so the idea that you'd pardon a family member, that precedent is already out there. joe biden doing the same thing, you know, is getting more pushback. but but it's not a it's not out of line historically. the second question, i think, around pardons is, is the pardon done to cover up your own wrongdoing for for self-dealing or for or for corrupt reason? here, i think seems like the pardon is to protect his son for potential additional criminal scrutiny under the trump administration. when the trump administration has promised many times to that

that the justice department in the next phase will be used for political retribution, action and vengeance prosecutions. and the supreme court essentially last summer in the immunity case, gave it donald trump the authority to do that so that is a pardon that is necessary because of the the moment we've never seen anyone have to think this through. given what's going forward with this next president. so. you know, biden had to do something that i think was created by virtue of what donald trump is promising the second term. the other thing is the crimes for which hunter biden either pled guilty or was convicted of a fairly low level offenses that even lindsey graham with the gun charge has said if it weren't for biden, he wouldn't have been prosecuted. and both occurred when he was in a serious relapse into a drug addiction after the death of his son or of his brother, beau. he paid back all the tax

liability with interest. and the other one was lying about his addiction on a gun application and then owning the gun for ten days. i would assume there gun advocates that would see a problem with that kind of thing. under the second amendment, we didn't really hear much pushback for that. but i would say if biden weren't a biden, if this were one of the 10,000 applications that come to a president, maybe that is one that it would seem like it doesn't make sense for a long incarceration, for that kind of offense when we're not concerned reasonably that there would be any injury to the public on the other side. we are talking with ken whaley about presidents and pardon power for the next 30 minutes or so. if you have a question or comment for her, you can start calling in. now the lines republicans. 202748 8001 democrats 202748 8000 and independent 202748

8002. and kimberly something that you you mentioned just now is that the president biden's decision to pardon his son is preemptive considering what president elect trump may do once he is in office. how could this decision to to pardon his son impact how trump exercises his pardon powers? yeah. so there's an argu ment that that the use of the pardon in a way to react to or address what's happened with the next president or the prior president could create this sort of boomerang effect. what's good for the goose is good for the gander, and we could just see the use of pardons escalating for political gain and to to cover up crimes. i think a big concern, which isn't really around biden, but but it's a big concern that the supreme court in the immunity case, i think, created is that

now that the president has authority to use the justice department to commit crimes because it's official power and the supreme court specifically singled out the use of the justice department as above the law. if a president wants to commit crimes and wants to get people that will help him commit crimes, the pardon gives that ability to immunize everyone around him. so the immunity decision is just for the president. the president, they're going to use their official power use the military, use fbi, use surveillance technology, use prosecutors. those folks don't automatically get immunity under that decision. but the president could pardon them all or promise to pardon them all and then pardon them all and then essentially you have a federal government where the norm becomes criminals. you abusing power because the system has immunize them from any accountability under the

supreme court's immunity decision. and the pardon and the scope of the pardon. now, you know, some of us don't. i'm not so sure that biden's pardon would have an impact on that either way. it seems that given what donald trump has said and how he's, for example, considering replacing his fbi director, chris wray, who has who he appointed, is doing great job. he's got three years left with someone like kash patel, who has an enemies list. i mean, that to me suggests a turn in how the fbi is going to be managed. the priorities of the fbi. so so i'm not so sure that it's going to be what biden does that will dictate what trump does or does not. it seems to me if trump's going to use the power of the pardon power broadly, it's not going to be because joe biden gave him the green light, although of joe biden. these kinds of things, it will give political cover to say, oh, joe biden started it and it'll probably confuse the public.

but at the end of the day, i think we're headed towards, you know, a weaponized justice department. i take the president elect as his word at his word and more use of the pardon power to cover up crimes. your first caller is marian in georgia, on the line for democrats. good morning, marian, and good morning. i have several points on this. i absolutely think the pardon power should be done away with and for several reasons. one, the coup said kim. kimberly is because it seems like the powerful and the rich at the top. let's just keep pardoning each other. it doesn't matter what party you're in. they'll just pardon each other. say, go ahead, do all the crimes you want and we'll pardon you. and that seems ridiculous to me. and another one is that under the law, we're supposed to all be equal. and so i think if they're going to be able to be pardons that president can pardon, i think

every family in this country should also every four years be able to pardon a family member or relative. that would only be fair and it just seems to me either we get rid of the pardon power because that's the only helping the elite and the rich and the powerful. or we give it to every family, every four years in this country. thank you. bye. interesting. well, you know, at the time of jesus, the romans, the community could choose the pardon. so there is some precedent for that. and but i do agree and i write in my book, i come to the same conclusion that the pardon powers anachronistic and we don't we shouldn't need it. one of the problems with the pardon power is that it gives an excuse to not fix the criminal justice system. there's a case, herrera versus collins, where it involved a prisoner who wanted to had new evidence showing he was innocent, exonerating evidence

and tried to use what's known as habeas corpus. it's another way of challenging your incarceration, tried to use that to get out of prison and say, listen, i have this evidence that shows i'm free. i mean, i'm innocent and i i'm being held basically against my constitutional rights. and the supreme court said, well, you always have the pardon, so we're not going to let you use the habeas process to get out of prison. so, i mean, if that's the case, if this dangled pardon is out there, that is relatively rarely used for deserving people and definitely people with access and money are more likely to get it, then why do we even have it? it almost has a counter counterintuitive objective. and i just say, look at the last you know, donald trump pardoned paul manafort. he pardoned roger stone. he pardoned mike kelly. he pardoned his father in law. he you know, he he pardoned steve bannon.

he pardoned folks that could have incriminated him. and so that that sort of pardons to silence people who could give the american people information about how their president used or maybe abuse their power. that to me, to me is a problem to get to change the pardon power. however, it would require a constitutional amendment that would be both houses of congress supermajorities and supermajorities in all the state legislatures. and when i say that, people say, oh, that could never happen. but it has happened 27 times in our history. i think the most recent was in the seventies. so we can do these things if the people can come together and not be so divided and invested in being divided, we can come together as as a group. we can really make changes to our government that help everyone but we have to get on the same page in a not sort of be so invested in being mad at each other. steve in anaheim, california a

line for republicans. good morning, steve. the morning, kimberly. you're one of my favorite guests i always enjoyed when you're on. i got a legal question for you really early was trump's lawyer and he paid to be trump's lawyer. so how did the client lawyer privilege resort to him as far as he was committing crimes? but you couldn't charge him because he was trump's lawyer? thank you. well, the attorney client privilege applies. i'm glad you raised this because there's a lot of mythology around this. the attorney client privilege requires a couple of things. first, it requires that there's an agreement that you're going to be acting as a as an attorney for someone. so if aunt molly is an attorney and you're chatting with her over thanksgiving about something that's not protected just because she happens to be an attorney, it has to be a

conversation between attorney client for the purpose of giving and receiving legal advice. it can't be about, you know, your bank statements. and it has to be confidential. so if somebody else is sitting the room, then there's no privilege. and the last thing is you can't go to your attorney for advice on how to commit a crime. so you can't go to your attorney and say, i killed someone where the where should i bury the body? that would would be asking them to participate in the crime. if you go to your attorney and say, i killed somebody, what do i do next that would be completely privileged. as far rudy and rudy giuliani and trump kind of like michael cohen and trump, there were there some confusion around which parts of that relationship were covered and not covered by the attorney client privilege. but that's basically the test that if you jot it down and go back to those questions, those factual questions you're wondering about, you could noodle through whether the privilege would apply or not.

dennis in ohio, line for independence. good morning, dennis. good morning, everyone. you know, it's sad that the whole system has been perverted and corrupted, turned upside down inside and out. the presidency of donald trump showed americans that anything can be corrupted when it's not fair, balanced and equal across the board for everyone. just want to leave this question with those who are listening. if barack obama had it done and committed to same acts and crimes that donald trump committed and we know he committed would democrats, independents and republicans feel the same way about the system? would it be this or we overlook this? i truly believe that he would have been dealt with thoroughly for breaking the law, which he should have if he did it. i mean, something's wrong with the whole system. and if we don't stand up and

just be decent, as they say, law abiding, moral and everybody's the christian, then be what a christian is supposed to be. we will self-destruct from within. thank you for listening. yeah i think there's a sense that it's accountability for the but not for me. i you know, it's hard to convey from the standpoint of the constitution how crucial it is that it be that these kinds of things and that the accountability for people in power has to be consistent. i like to use an image of a bridge over a very, very rough river. and say the bridge is 240 years old, like the constitution and people are on the bridge. red coats and blue coats. and they're fighting over who gets to control the bridge. and they start doing maybe some shady stuff to ensure their

power on the bridge. and everyone starts, then being angry with each other and wants to win and throw people over the side of the bridge. meanwhile, the bridge grouting is being completely ignored. the water is washing it away and it's crumbling. and no one's paying attention to the bridge because we're so interested in blue versus red. one day the bridge collapses. and i think the question for everyone is who survives is when the bridge collapses. who survives? that is exactly what i think caller is talking about. it's protecting the system that that ultimately protect you, your enemy, your friend. but mostly, in my mind, our children are children who cannot vote. they have no agency right now. so whatever we do, if we climb on to a system that's corrupt because we just happen to like. the strength or whatever of that messaging, we have to understand

that corrupt system is what we are handing off to our children and they didn't have a choice. so that's that's why i do my work and why i think understanding how this the constitution functions is really important for every american. kathleen dayton, ohio line for democrats. good morning, kathleen. thank you. and thank you for washington journal. but. boy, i can't wait to read your book because this is such a fascinating topic. and i just remember, decades i've just been amazed by how many of our officials, you know, our reps, our presidents, military officials, you know, department of justice officials, you know, will say no one is above the law, no one is above the law. well, no one out here in the real world believes that. i mean, we we can watch what's happened. we can watch who was pardoned. you know what? i'm going through the list right here. presidents and how many people they've pardoned. it turns out obama what is that like something weird about?

his name go. anyway, it's like over a thousand. and then, of course, roosevelt. it was in the presidency longer than anybody, like a massive amount of pardons. but i want to ask again, i mean, how do you think that affects the public in regard to i mean, no one believes this. no one believes it. no one is above the law. and then i want ask c-span to do that. you know, two people with felonies, one felony each this past year. and i want trump to do a massacre class on how to get a job. well, the presidency with 34 felonies. so i hope c-span does a program on all these people who may have, say, one felony. and it's not like, you know, stealing catalytic converters or something that i'm not saying it's serious. however they these people can't get jobs with one felony. and then we've got someone like trump, 34 felonies. he's got the presidency. so so do the if you talk about that, how can anyone believe in no one is above the law? and then i program on felonies

and people who can't get jobs because of them. thank you. i agree with the caller that the idea that no one is above the law is not really true anymore. and it really did change this summer. again, i cannot emphasize enough how huge the immunity decision is in terms of changing the course of our government and the justices did it without, i think, the authority to do it. they basically the constitution, the constitution can only be amended by the people. and they went ahead and did it. and and basically we now can only see what will happen when you tell people with the most power pretty much on the planet that they can do whatever they want with that power. incentives and disincentives really make a difference with the law. if you get the ticket for speeding, you'll slow down the next time you drive down that street. and also, i think people are

understanding and this is not new, that justice in america works better if you have money and access and power, if you're if it's a civil case and you need to sue someone or you're being sued, it's extremely expensive. so big corporations that can hire washington lawyers and $1,000 an hour are going to do much better than, you know, a single mom with her mom and pop shop that needs the money for food or for retirement. same way with the criminal context that the constitution doesn't recognize. poverty is somehow a protected class. so if you are arrested and you can't make bail, you don't have the money to get yourself out of jail until the trial starts, you will stay in jail because of your poverty before. the government puts it one piece of evidence against them innocent until proven guilty unless you are poor, right? then you have to basically face the consequences of a crime for which nothing's been proven against you.

and the message of the pardon. i'll just put one anecdote which really surprised me. i was doing a talk in austin and there was a teacher, a high school teacher who said it said that he is having problems conveying to his steward inside now that donald trump pardoned a number of hip hop artists kodak, kodak, black, etc. and they perceive that as meaning i can i can now commit crimes and just get a pardon. and he has to, you know, debunk that idea and convey that no, you're not the kind of person that's going to get a pardon. this whole conversation we're having the concern is we're just might shift to an environment where lawlessness is more accepted across the country on many levels if it's starting at the top, it'll trickle down. at the same time, people want to see more toughness on crime. we'll just have to see where that where that kind of chaos lands. before president trump left office and at the end of 20 or

at the beginning of 2021, there was reporting that he was possibly looking at pardoning himself. what is our current understanding of somebodies ability to do that? and then to kathleen's point about the felony convictions he has. would he be able pardon himself in those cases or other cases like the georgia election interference or the his impeachment? okay, great. so on the self-pardon, there's no law on whether a president can self-pardon. there's an argument that theoretically you can't be the judge, jury and everything of yourself that just gives too much power. it doesn't make logical sense. a lot of the stuff when it comes to presidents trump and everyone else is if somebody does it, what's to stop them? not so much. what does the constitution say? so if they're what if he were to self-pardon, who's going to say anything about it? i think it would just stand

because there's no way to tell him no, there's no way to appeal pardons. however, with the immunity decision now saying if you use official power as president, you can't commit a crime, we'll never need to worry about a self-pardon any more. there's nothing departing because your crime is basically immunized from the get go. as far. remind me other questions. the 34 felony convictions. so so the president cannot pardon a state crimes. so the 34 felony convictions that stand against him and he's waiting for sentencing in manhattan. he cannot pardon and like and also the pending indictment in georgia, he cannot pardon. so he if he is sentenced in either of those cases, he would have to be at the mercy of the new york pardon system and the georgia pardon system in new york. it's at the discretion of the governor, who is a democrat, kathy hochul, in this moment in

georgia. it's actually a commission, but you're not eligible for a pardon until five years after you've completed your sentence. so trump would not be pardoned, be eligible for pardon under georgia law until the the trial, the appeals and he served a sentence, whereas a federal pardon, as we saw with hunter biden, as we saw paul manafort and other folks, presidents can just skip everyone to the line and pardon them early in the process on a potential threat of a crime. let's hear next from richard in north carolina. line for republicans. good morning, richard. yeah. first thing i do believe most everybody that trump pardoned already served their time before he pardoned pardoned. and you keep hearing all this about trump, but do you ever think you're a law professor but you don't call nobody out?

president obama did by on trump's campaign. they that was a fake dossier that they. these people have committed treason. and you're teaching people law. this is a joke. thank you. but just for the record, definitely five years have not passed since the pardons the last round. i'm not sure. i can't remember. off the top of my head where paul manafort and roger stone in. but the pardons definitely did not happen five years after the conviction, which is the standard under the department of justice. but again, donald trump didn't have to adhere to that because his pardon power is absolute art in chicago, illinois, line for independence. good morning, art. hi. good morning. thank you for taking my call. i have one question. was looking for any kind of legal