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Hwang Sentence Confusion & Biden Pardon Powers · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 2: Yesterday, Arkago's founder Bill Huang was sentenced to eighteen years
0:14
Speaker 2: in prison for securities fraud and market manipulation. But today,
0:19
Speaker 2: in a really unusual twist, the judge is considering reducing
0:23
Speaker 2: that sentence. A jury convicted Wog in July on ten
0:27
Speaker 2: charges for orchestrating a scheme to mislead Banks into providing
0:32
Speaker 2: Archagos with billions of dollars in trading capacity, which ultimately
0:36
Speaker 2: led to the collapse of his thirty six billion dollar
0:39
Speaker 2: family office and cost Wall Street Banks more than nine
0:42
Speaker 2: billion dollars. Yesterday, Judge Alvin Hellerstein didn't seem particularly open
0:48
Speaker 2: to the arguments of the defense, even musing at one
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Speaker 2: point that Wang was a god fearing man who cheats
0:55
Speaker 2: fellow men. He sentenced him to close to the twenty
0:58
Speaker 2: one years the government had asked for, But it seems
1:01
Speaker 2: things can change significantly overnight. Joining me is Bloomberg Legal
1:06
Speaker 2: reporter CHRYSTL. Mesh, who's been in the courtroom for these
1:10
Speaker 2: hearings and the trial, and we were talking yesterday about
1:13
Speaker 2: how unusual the sentencing hearing was. Day one of the
1:17
Speaker 2: sentencing hearing. And now it's getting even more unusual. The
1:22
Speaker 2: judge did impose sentence yesterday of eighteen years.
1:25
Speaker 3: What happened today, Yeah, so unusual, bizarre, however you want
1:29
Speaker 3: to put it is probably a good descriptor. So the
1:32
Speaker 3: judge had extended the sentencing hearing for a day to
1:34
Speaker 3: address some other issues such as restitution and forfeiture and
1:37
Speaker 3: bail pending appeal. And you know, that's very unusual in itself.
1:40
Speaker 3: Christmast sentencings take just a couple of hours. But then
1:43
Speaker 3: this morning when they came in, Barry Burke, the lawyer
1:46
Speaker 3: for mister Vong, got up and said he had kind
1:49
Speaker 3: of tossed and turned all night and was, you know,
1:52
Speaker 3: just really wondering if they should have done more. At
1:55
Speaker 3: that point, he proposed changing the sentence, essentially not giving
1:59
Speaker 3: him less than eighteen years in custody, but having the
2:04
Speaker 3: first eleven and a half years be in prison in
2:06
Speaker 3: the second six point five years be in home confinement.
2:09
Speaker 3: And the reason he did that is because there's Bureau
2:12
Speaker 3: Prison Justice Department rules that when you have more than
2:16
Speaker 3: eleven and a half years incarceration, you can't be in
2:19
Speaker 3: a minimum security prison, which he said, you know, would
2:22
Speaker 3: prevent his fanley from visiting. He's sixty years old, he
2:25
Speaker 3: has heart issues that may require open heart surgery. He
2:28
Speaker 3: was saying, you know, this is the kind of thing
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Speaker 3: that happened during COVID, and it sounds like the judge
2:32
Speaker 3: is considering that. He said he thinks he's allowed to
2:34
Speaker 3: do it. He's not saying he will. The government argued
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Speaker 3: against it, saying they think that would kind of take
2:39
Speaker 3: the bomps out of the sentence that you know, they
2:41
Speaker 3: wanted to send a message to others who would commit
2:43
Speaker 3: similar crimes when they kind of noted that a lot
2:45
Speaker 3: of his crimes were during COVID. A lot of it
2:48
Speaker 3: was just done sitting around a table and known apartment.
2:50
Speaker 3: So that's what they're kind of known, a hey, you know,
2:52
Speaker 3: he's going to be on home confinement, like that's not
2:54
Speaker 3: exactly going to stop him from, you know, committing further crimes.
2:58
Speaker 3: So the judge did not decide today, but it's going
3:01
Speaker 3: to take post briefing from the two sides by December fifth,
3:05
Speaker 3: and then we'll hold a hearing on December eighteenth, presumably
3:08
Speaker 3: to direst the forfeiture in a possible find but that
3:11
Speaker 3: could also be hearing on whether the sentence is changed
3:15
Speaker 3: at all.
3:15
Speaker 2: I mean, I imagine that Billhong didn't sleep well last
3:19
Speaker 2: night either. So besides tossing and turning, did the defense
3:22
Speaker 2: attorney have any new arguments for a lower sentence, I
3:27
Speaker 2: mean different from the ones that they already articulated yesterday.
3:31
Speaker 3: Not really. I mean, they rested on their arguments, but
3:34
Speaker 3: they were emphasizing that they don't want to change the sentence.
3:37
Speaker 3: They just think that, you know, being in prison for
3:40
Speaker 3: that much, it's also a much more restrictive facility if
3:43
Speaker 3: he would be in anything above minimum security, so that
3:46
Speaker 3: it know, it would be difficult for his family to visit,
3:48
Speaker 3: be difficult for him to get medical care, that sort
3:51
Speaker 3: of thing. So they didn't really expand on their arguments
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Speaker 3: from yesterday. It was more about his health, the fact
3:56
Speaker 3: that he wouldn't be able to see his family, that
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Speaker 3: sort of thing. The really interesting part to me is that,
4:01
Speaker 3: you know the fact that the judge extended the hearing
4:04
Speaker 3: for a second day essentially gave the defense a window
4:09
Speaker 3: to make this argument. Not saying they wouldn't have made
4:11
Speaker 3: this argument at the end of the day yesterday, but
4:14
Speaker 3: you know, given this judge's age, and you know, he
4:17
Speaker 3: was clearly, you know, ready to move on at the
4:19
Speaker 3: end of the day, at least from day. You know,
4:21
Speaker 3: they came back fresh this morning, and it gave these
4:23
Speaker 3: defenses an opportunity to make this argument a little more clearly,
4:27
Speaker 3: and when the judge, you know, was fully engaged in
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Speaker 3: listening to what they had to say.
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Speaker 2: He is ninety years old. It's amazing that he's still
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Speaker 2: presiding over trials like this, complicated trials like this.
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Speaker 3: So yeah, sure, the judge asked.
4:41
Speaker 2: Wong's attorneys to submit information on his health status to
4:46
Speaker 2: him privately, But what is he looking for in the
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Speaker 2: papers he's asking both sides to.
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Speaker 3: Submit, Especially, he just wants more arguments on this, and
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Speaker 3: I think he's really trying to flesh out more of
4:57
Speaker 3: the government's arguments against this, and he's legally allowed to
5:01
Speaker 3: do it. I think that's what he really wants to know.
5:03
Speaker 3: He wants case law and to know if the law
5:05
Speaker 3: allows him to reduce a sentence. He's already given. Another
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Speaker 3: kind of procedural wrinkle it to this is that you know,
5:10
Speaker 3: at the end of every sentencing hearing, when someone gets sentenced,
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Speaker 3: the judge usually signals what he's going to give. He
5:16
Speaker 3: asked the parties, as there are reason I shouldn't impose
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Speaker 3: this sentence, you know, usually they say no, and then
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Speaker 3: he officially imposed sentence. He asked the dependence to stand up,
5:25
Speaker 3: and he says, you're sentenced to this, you know, the
5:27
Speaker 3: custody of the Bureau of Prisons for X number of years.
5:30
Speaker 3: He didn't do that yesterday. Barry Burke noted that, you know,
5:34
Speaker 3: at the beginning of his kind of argument today, and
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Speaker 3: that might have been, you know, some sort of signal
5:39
Speaker 3: to him that he could have made this argument. So
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Speaker 3: the sentence has actually not been officially imposed at this time.
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Speaker 2: I'm sensing a legal loophole ahead here, and that all
5:49
Speaker 2: goes to what we were talking about yesterday, which is
5:51
Speaker 2: how bizarre this sentencing was. Of the structure of the sentencing.
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Speaker 3: I'll just add this. Usually it folly for a defense
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Speaker 3: attorney to attempt to get up to a federal judge
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Speaker 3: and essentially re argue their case after the judges imposed
6:08
Speaker 3: sent or reargue their their sentencing recommendation. And you know,
6:12
Speaker 3: with another judge, I don't know if the defense attorney
6:15
Speaker 3: would have done this because they already kind of irked
6:18
Speaker 3: him with their request for no jail time. And you know,
6:21
Speaker 3: if it had been another judge, they may have been
6:23
Speaker 3: hesitant to do that. But he's made it clear throughout
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Speaker 3: the trial that you know that he's willing to change
6:28
Speaker 3: his mind.
6:29
Speaker 2: Chris tell us more about his style, where he interrupts
6:34
Speaker 2: the parties a lot, you know, interjects himself into the
6:37
Speaker 2: proceedings more than most federal judges do.
6:41
Speaker 3: Right, judges will spitball all the time during trials, and
6:45
Speaker 3: you know, ask questions of counsel, but they generally prefer
6:48
Speaker 3: to allow the proceedings to happen without their interference. And
6:52
Speaker 3: this judge was not doing that. He was constantly engaging
6:55
Speaker 3: with the lawyers, who was constantly telling them to move
6:58
Speaker 3: on or ask a different question times, just asking their
7:01
Speaker 3: questions for them. So any attempt to like make another
7:05
Speaker 3: argument to most judges is met with scorn. And you
7:09
Speaker 3: know it's because they make it clear what they're thinking
7:12
Speaker 3: is ahead of any kind of decision. Even if it's
7:15
Speaker 3: they don't tell you what the decision is going to be,
7:17
Speaker 3: they hint at it. And Hellerstein regularly would reconsider things
7:21
Speaker 3: in the middle of the case, and you know, if
7:23
Speaker 3: he heard a better argument from either side, he would
7:25
Speaker 3: he would change his mind. And you just don't always
7:27
Speaker 3: see that with federal judges. They tend to believe in
7:31
Speaker 3: their convictions, and they stand on their rulings and they
7:34
Speaker 3: don't really reconsider them unless they're significant new evidence.
7:37
Speaker 2: Right, They don't want to hear the same arguments over
7:40
Speaker 2: and over again. So was there any argument or any
7:44
Speaker 2: requests to revoke his bail.
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Speaker 3: No, the government did not oppose having him self surrender,
7:51
Speaker 3: meaning you know, he would just report to prison whenever
7:53
Speaker 3: the judge told him to. But they did oppose the
7:55
Speaker 3: bail pending appeal, saying that you know, and this is
7:58
Speaker 3: a significant term in prison and he should serve it soon.
8:02
Speaker 2: Since the judge granted him bail pending appeal, Wong will
8:06
Speaker 2: be out through the entire appellate process, which could take years.
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Speaker 3: Yes, unless, of course, the judge decides to reconsider it.
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Speaker 2: Was anything else decided today or discussed?
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Speaker 3: Not really so forfeitures. Forfeiture is not. However, I will
8:22
Speaker 3: say that there were some interesting exchanges about his assets
8:27
Speaker 3: and the judge noting that really wondering out loud, you know,
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Speaker 3: whether his assets need to be secured in case of,
8:35
Speaker 3: you know, a final judgment against him, that would be
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Speaker 3: combined with a monetary penalty or restitution or forfeiture, whatever
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Speaker 3: have you, because he says he only had fifty five
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Speaker 3: million dollars and some of his assets are jointly owned.
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Speaker 3: So the judge, you know, wondered whether personal loans should
8:49
Speaker 3: be called back, real estate should be liquidated, whether his
8:52
Speaker 3: residence should be a quote unquote more modest one, whether
8:55
Speaker 3: artworks should be liquidated, you know. But he also noted
8:58
Speaker 3: that any kind of four picture you know, would have
9:01
Speaker 3: to come after restitution, noting that the most important thing
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Speaker 3: is that the victims get paid back first.
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Speaker 2: So are those issues going to be discussed at the
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Speaker 2: next hearing in December.
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Speaker 3: A restitution is deferred, it doesn't sound like that's going
9:14
Speaker 3: to be immediately addressed. For a fiture could be. It's
9:17
Speaker 3: hard to say. It was not entirely clear exactly what
9:21
Speaker 3: they will be putting in those filings, but I think
9:23
Speaker 3: they will probably cover the gamut.
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Speaker 2: Finally, Chris, I can't think of another case where a
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Speaker 2: judge reconsidered a sentence so quickly after imposing it. Of course,
9:35
Speaker 2: as you mentioned, he didn't really officially impose the sentence.
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Speaker 2: I mean, defendants often make motions for reconsideration of sentences afterwards,
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Speaker 2: but that's not what's going on here.
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Speaker 3: Yeah, no, that's very true. And you know, that's a
9:52
Speaker 3: good point given that, like I said, many of these
9:55
Speaker 3: things are done in a matter of hours. They're not
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Speaker 3: done over two day, and judges are pretty quick to
10:03
Speaker 3: adjourn a sentencing hearing if they feel they need more
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Speaker 3: briefing or there are issues they need to resolve before
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Speaker 3: they impose sentence. They want that to be the final
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Speaker 3: say kind of. It just never really happens like this.
10:15
Speaker 3: I have seen a case where the judge this was
10:18
Speaker 3: in Connecticut in a white collar case involving a bond trader,
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Speaker 3: where the judge did not officially impose sentence that day
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Speaker 3: and postponed the hearing for more briefing on I don't
10:30
Speaker 3: remember when it was restitution, but it was another issue,
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Speaker 3: and then he appoass sence the next time. But that
10:34
Speaker 3: was a probationary case, so it's not really the same
10:38
Speaker 3: kind of scenario.
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Speaker 2: I'm sure both the prosecution and the defense are doing
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Speaker 2: a lot of research to find a similar case. Thanks
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Speaker 2: so much, Chris. That's Bloomberg Legal reporter Crystal Mesh coming
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Speaker 2: up next on the Bloomberg Law Show. Well, President Joe
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Speaker 2: Biden use his pardon powers in the last two months
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Speaker 2: of his administration? Could he give his son Hunter Biden
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Speaker 2: a pardon? And what about the members of his administration?
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Speaker 2: On Trump's revengelist, I'm June Grosso and you're listening to Bloomberg.
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Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
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Speaker 4: My conscience tells me clearly and certainly that I cannot
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Speaker 4: prolong the bad dreams that continue to reopen a chapter
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Speaker 4: that is closed.
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Speaker 2: It's probably the most famous pardon in US history. On
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Speaker 2: September eighth of nineteen ninety four, President Gerald Ford addressed
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Speaker 2: the nation from the Oval Office to announce his decision
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Speaker 2: to grant a pardon to former President Richard Nixon, and
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Speaker 2: Ford signed the pardon papers on camera.
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Speaker 4: Now, therefore, I'm Gerald R. Ford, President of the United States,
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Speaker 4: pursuant to the pardon power conferred upon me by Article two,
12:08
Speaker 4: Section two of the Constitution, have granted and by these
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Speaker 4: presidents do grant a full, free and absolute pardon unto
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Speaker 4: Richard Nixon. For all offenses against the United States which
12:25
Speaker 4: he Richard Nixon has committed or may have committed.
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Speaker 2: That pardon was extremely controversial and may have cost Ford
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Speaker 2: a second term. Some fifty years later, people are still
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Speaker 2: asking whether Ford made the right decision. But presidents since
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Speaker 2: George Washington have granted pardons, often in the final days
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Speaker 2: of their presidency. Through almost four years of his presidency,
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Speaker 2: Joe Biden has only granted pardons in twenty five cases
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Speaker 2: and commuted the sentences of one hundred and thirty two others.
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Speaker 2: Biden has less than sixty days left to use the
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Speaker 2: pardon power, power he has sole control over. Joining me
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Speaker 2: is Harold Krant, a professor at the Chicago Kent College
13:11
Speaker 2: of Law who's written extensively about the presidential pardon power.
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Speaker 2: How this is an extraordinary power that the president has
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Speaker 2: within his sole control. Tell us about the pardon power.
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Speaker 5: The president under Article too has the power to exercise
13:28
Speaker 5: the traditional partner authority. Within the understanding of the partner
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Speaker 5: authority is that the president can get out of jail
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Speaker 5: free card to anybody who's been previously convicted, or he
13:40
Speaker 5: can preemptively pardon individual by saying that the individual should
13:45
Speaker 5: not even undergo a trial, and that he will be
13:49
Speaker 5: forgiven for that questionable conduct that the individual engaged. In
13:53
Speaker 5: addition to the pardon power, within that is also the
13:56
Speaker 5: ability to exercise cleendency to reduce the wishment of someone
14:01
Speaker 5: or to infect to restore their right to civil activities
14:05
Speaker 5: such as voting, and so that is all encompassed within
14:07
Speaker 5: the pardon power. And presidents have exercised pardons from George
14:11
Speaker 5: Washington on and indeed President Biden has exercises authority much
14:17
Speaker 5: less ambitiously than his predecessors have.
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Speaker 2: Has the pardon power ever been challenged in court?
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Speaker 5: There's been a number of challenges based upon conditional pardons,
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Speaker 5: based upon questions of whether parton authority violates separation of
14:33
Speaker 5: powers in terms of underlining what either judges or what
14:37
Speaker 5: legislatures have done. But by and large the courts have
14:41
Speaker 5: said it's a progres that we can't touch. It's up
14:45
Speaker 5: to the president, and the president is to use it
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Speaker 5: wisely or unwisely, to pardon friends, campaign donors, but also
14:54
Speaker 5: in cases of injustice, both in historical injustices as well
14:58
Speaker 5: as more recent justic and presidents have used it for
15:01
Speaker 5: all those reasons. President Obama used it widely to help
15:05
Speaker 5: people with long senses for drug offenses and had commuted
15:09
Speaker 5: their sentences in some cases and give full pardons in others.
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Speaker 5: President Trump exercised it for campaign core readers, but also
15:18
Speaker 5: in other cases as well, and so far President Biden
15:23
Speaker 5: mostly is exercise it in two contexts, one for marijuana
15:27
Speaker 5: use on public lands and the second four to clean
15:31
Speaker 5: the records for those who previously were convicted of a
15:34
Speaker 5: sexual offense for consensual sex in the armed forces. Those
15:38
Speaker 5: are the two sets of individuals, but there have been
15:42
Speaker 5: amnesties in the Civil War afterwards that were granted through
15:45
Speaker 5: the Partner Authority, antesties for Vietnam War drafters. So presidents
15:50
Speaker 5: have utilized the Partner Authority in a great many different ways.
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Speaker 5: And it's really up to President Biden now as he
15:57
Speaker 5: sort of most of these last two months of his term,
15:59
Speaker 5: to decide how to wield that authority.
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Speaker 2: The first name that comes up when people talk about
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Speaker 2: who President Biden will pardon is his son, Hunter Biden.
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Speaker 2: He's currently awaiting sentencing on a felony gun charge where
16:17
Speaker 2: he faces a maximum sentence of twenty five years, and
16:20
Speaker 2: there are also tax related charges. President Biden has said
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Speaker 2: he would not pardon his son, but could he commute
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Speaker 2: any sentence, And he has said that.
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Speaker 5: He actually could commute the sentence, and so Hunter Biden
16:33
Speaker 5: would still have the fact of a conviction. He might
16:36
Speaker 5: be script of some of his civil rights, such as
16:39
Speaker 5: voting or holding particular offices depending upon the jurisdiction, but
16:43
Speaker 5: he would not have to serve time. And so that
16:45
Speaker 5: is probably one head of bet that would be the
16:49
Speaker 5: attack that President Biden would take with respect to his son.
16:53
Speaker 5: A tough call for sure.
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Speaker 2: Of course, politicians have been known to change their mind.
16:58
Speaker 2: I guess he could just say I am going to
17:00
Speaker 2: pardon my son because he won't be getting a fair
17:02
Speaker 2: shake with the incoming administration.
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Speaker 5: And of course President Clinton pardoned his half brother with
17:08
Speaker 5: two days remaining on his term as as well, So
17:11
Speaker 5: there is president for commuting the sentence of pardoning your
17:14
Speaker 5: own family members.
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Speaker 2: You know, you mentioned preemptive pardons, and Trump has threatened
17:20
Speaker 2: to prosecute people he feels have wronged him, and a
17:24
Speaker 2: lot of those people are in the Justice Department or prosecutors. Also,
17:29
Speaker 2: you have Alexander Majorcis who Republicans, a group of Republicans
17:34
Speaker 2: have tried to impeache already. What about preemptive pardons.
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Speaker 5: So again, another tough choice the president has to make
17:44
Speaker 5: in the next coming months is whether to protect those
17:47
Speaker 5: whom President Trump has accused of illegal conduct, and those
17:53
Speaker 5: include many in his administration, Jack Smith, the Special Counsel
17:56
Speaker 5: Merrik Island, the Attorney general, or the Homeland Secretary maw York.
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Speaker 5: As you suggested, and it's not beyond imagination at all
18:05
Speaker 5: that President Pump to somebody would try to indict members
18:09
Speaker 5: of Biden's administration for illegal conduct, and then they would
18:12
Speaker 5: have the cost and the inminy of standing trial, even
18:17
Speaker 5: if they think they're incredibly innocent. So President Biden could
18:21
Speaker 5: protect them with the wave of a hand by issuing
18:24
Speaker 5: preemptive pardons. But that has a cost too, because then
18:27
Speaker 5: it looks as if there's something to pardon. It looks
18:31
Speaker 5: as if there's some kind of illegal activity that needs
18:34
Speaker 5: to be swept under the rug. So it's again another
18:37
Speaker 5: tough choice is do you protect people from the costs
18:41
Speaker 5: of being in the public eye with an indictment against you,
18:45
Speaker 5: But in doing so, you then open up some kind
18:49
Speaker 5: of aura that there might have been illegal condent going
18:53
Speaker 5: on in the administration. So that's a tough path for
18:56
Speaker 5: President Biden to go down, and he has to make
18:58
Speaker 5: that call.
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Speaker 2: How does it work. Suppose he says I'm going to
19:01
Speaker 2: pardon you know, the Attorney General and the top staff
19:05
Speaker 2: at Justice. Does the Attorney General get to say, no,
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Speaker 2: I don't want that pardon because it would imply that
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Speaker 2: I did something wrong.
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Speaker 5: Right, So you can reject a pardon, and there have
19:16
Speaker 5: been individuals in the past who have rejected pardons, usually
19:20
Speaker 5: in different contexts. Generally, it's more likely that one would
19:23
Speaker 5: reject a conditional pardon because one doesn't like the conditions
19:26
Speaker 5: that the president would place on it. But you can
19:29
Speaker 5: also just reject a straight out pardon. So Amyeric Ireland
19:33
Speaker 5: could say no thanks, And again it's just because of
19:36
Speaker 5: the fact that you do. The president, by the way,
19:38
Speaker 5: does have to identify the conduct or the transactional moments
19:42
Speaker 5: for which the partner is being issued. So I can't
19:45
Speaker 5: just say everybody in my administration is pardoned. You'd have
19:48
Speaker 5: to say for conduct a rising out of X, or
19:51
Speaker 5: for this incident.
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Speaker 2: Why will you explain what a conditional pardon looks like.
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Speaker 5: So a conditional partner is when the president would say,
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Speaker 5: I will give you a pardon if you agree to
20:03
Speaker 5: leave the country, or I'll give you a pardon if
20:06
Speaker 5: you agree not to associate with no felons, or I'll
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Speaker 5: give you a pardon on the condition that you take
20:11
Speaker 5: drug tests every two weeks for the next two years
20:14
Speaker 5: to make sure you don't go back into substance abuse.
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Speaker 5: And presidents have issued these conditional pardons for generations. It's
20:22
Speaker 5: unlikely that in the preemptive pardon case that President Biden
20:26
Speaker 5: would attach to such condition, but they have been very
20:28
Speaker 5: controversial in the past. I mean, one example, President Quinton
20:31
Speaker 5: issued a conditional pardon to members of the Puerto Rican
20:36
Speaker 5: terrorist group the FALN, but when the conditions were that
20:40
Speaker 5: they don't see each other again, they don't talk about
20:43
Speaker 5: revolutionary activities in Puerto Rico, and if you've reached the condition,
20:47
Speaker 5: you risk having to go back into jail.
20:50
Speaker 2: Behind the scenes. If he was going to issue a
20:52
Speaker 2: pardon to someone in a top person in his administration,
20:57
Speaker 2: I assume that they would learn about it before or absolutely.
21:01
Speaker 5: I mean, there is a process and a US Pardon attorney,
21:04
Speaker 5: and there's now eight thousand petitions for pardons that are
21:07
Speaker 5: pending before the pardon attorney, and then those are vetted
21:12
Speaker 5: in a certain structured way. But with respect to these
21:14
Speaker 5: high profile issues that we're talking about, the president would
21:18
Speaker 5: have a discussion with them first, because again, you wouldn't
21:21
Speaker 5: want this public relations disaster of extending a pardon only
21:25
Speaker 5: for the individual to reject it, you know. And again,
21:27
Speaker 5: if you want to just sort of think about scenarios,
21:30
Speaker 5: what kind of message would it make if President Biden
21:32
Speaker 5: sought to issue a pardon to President Trump? You know,
21:36
Speaker 5: on the one hand, it would be seen as, you know,
21:39
Speaker 5: can we pull together as a country. On the other hand,
21:43
Speaker 5: it could be seen just as more political gainsmanship.
21:46
Speaker 2: Is there actually talk that Biden might issue a pardon
21:50
Speaker 2: to Trump.
21:51
Speaker 5: I'm sure people around the president have thought about it,
21:55
Speaker 5: analyze it from a political perspective. It wouldn't get rid
21:58
Speaker 5: of the Georgia the New York cases, but it certainly
22:01
Speaker 5: would get rid of the DC and Florida cases. Those
22:07
Speaker 5: are going to be in hold anyway for four years,
22:10
Speaker 5: and so maybe it's worth the kind of statesmanship sort
22:14
Speaker 5: of chip to offer the pardon because you're not really
22:18
Speaker 5: giving much help. But I think a lot of people
22:20
Speaker 5: would feel hurt by that. As well on the Democratic side.
22:24
Speaker 5: So again, there's just a ton of tough calls that
22:27
Speaker 5: the president should be making, should be analyzing right now.
22:31
Speaker 2: Yeah, I mean, don't we assume that when Trump comes in,
22:35
Speaker 2: whoever his attorney general is, will just dismiss those cases.
22:39
Speaker 5: Absolutely. So again, there's very little to lose by offering
22:43
Speaker 5: a pardon now, because the Republicans will just dismiss the
22:48
Speaker 5: federal cases against President Trump.
22:50
Speaker 2: Coming up next on the Bloomberg Law Show, a group
22:53
Speaker 2: of House Democrats are asking President Biden to grant clemency
22:58
Speaker 2: to potentially thousands of InCor serrated people, including inmates on
23:02
Speaker 2: federal death row. I'm June Grosso and you're listening to Bloomberg.
23:07
Speaker 4: Criminals who murder our police should get the death penalty.
23:13
Speaker 2: On the campaign trail, Donald Trump made it clear that
23:16
Speaker 2: as president he would resume federal executions and that he
23:20
Speaker 2: wants more people to face the death penalty, including cop
23:24
Speaker 2: killers and drug dealers. In his first term, Trump restarted
23:28
Speaker 2: federal executions that had been paused for fifteen years, and
23:32
Speaker 2: no president oversaw as many federal executions since Grover Cleveland
23:37
Speaker 2: in the late eighteen hundreds. I've been talking to Harold Krant,
23:41
Speaker 2: professor at the Chicago Kent College of Law, about President
23:44
Speaker 2: Biden and the power to issue pardons, could and should
23:49
Speaker 2: President Biden issue pardons to those on death row.
23:53
Speaker 5: I'm sure that President Biden is concerning this. There are
23:56
Speaker 5: forty people now on death row in the United States,
23:59
Speaker 5: and President Stump has pledged to carry out the death penalty,
24:04
Speaker 5: and President Biden could commute those sentences to life in
24:07
Speaker 5: prison and thereby preserve those lots. I don't know if
24:11
Speaker 5: you'll do that or not, but it certainly would be
24:13
Speaker 5: a logical step that I think the president should take
24:17
Speaker 5: because he has expressed significant doubts about the death penalty,
24:21
Speaker 5: and so he has the power to commute those sentences
24:24
Speaker 5: and take the issue out of President Trump's fans.
24:27
Speaker 2: That's only those on federal death row.
24:30
Speaker 5: That's correct, And.
24:31
Speaker 2: Yesterday more than sixty members of Congress asked that he
24:35
Speaker 2: grant clemency to those sitting on federal death row and
24:40
Speaker 2: also to thousands of incarcerated people serving unjust sentences. I mean,
24:45
Speaker 2: how within the space of time left would you even
24:50
Speaker 2: figure out which people that are incarcerated are serving unjust sentences.
24:56
Speaker 5: Yeah, I don't know why there's been such a delay
25:00
Speaker 5: in the office of US Partner Attorney in terms of
25:02
Speaker 5: analyzing and presenting pardons to the president. It's just a
25:06
Speaker 5: power that can be reeled for the benefit of individuals,
25:11
Speaker 5: restore their lives back to them, or restore them to
25:14
Speaker 5: their families. And President Biden just simply has not devoted
25:18
Speaker 5: the time and their energy in terms of exploring the
25:21
Speaker 5: ambit of his pardon authority. I think the only way
25:25
Speaker 5: now that he could do it is sort of buy
25:28
Speaker 5: more objective factors everybody convicted of a particular crime with
25:32
Speaker 5: ex sentence or as he did before with respect to
25:37
Speaker 5: use of marijuana on federal lands, or you can do
25:40
Speaker 5: everybody on death row, which is a logical step for
25:43
Speaker 5: him to take. I think he will take that, but
25:44
Speaker 5: you know who knows. Otherwise, you again, we have to
25:47
Speaker 5: identify particular crimes in terms of possession of cocaine or
25:53
Speaker 5: something like that, and then decide to commute sentences of
25:56
Speaker 5: everybody who's been incrucerated for at least years. Something along
26:01
Speaker 5: those lines can be done in terms of mass justice.
26:03
Speaker 5: But you can't look at the details of the eight
26:07
Speaker 5: thousand petitions, not alone the one hundred and fifty thousand.
26:10
Speaker 5: They're now behind federal bars.
26:13
Speaker 2: Explain the process, the normal process, how a person asked
26:16
Speaker 2: for clemency, and then how it has to be investigated
26:19
Speaker 2: by the part in office. Just explain the process.
26:22
Speaker 5: So there is a formal petition for a pardon that
26:26
Speaker 5: one would lodge with the US partner attorney, and that
26:29
Speaker 5: would include the facts of the case, the sensing documents,
26:33
Speaker 5: and then your memorandum about why the individual deserves either
26:37
Speaker 5: clemency or pardon. Pardoner attorney would then look to the
26:42
Speaker 5: prosecutor's office to get a reaction and a statement of
26:46
Speaker 5: either objection or acquiescence from that side. Then would analyze
26:51
Speaker 5: it and then make a recommendation to the president as
26:54
Speaker 5: to whether commutation or a pardon would be appropriate.
26:58
Speaker 2: So there is also a scenario, I think it's sort
27:02
Speaker 2: of a wild scenario of Biden stepping down for a
27:07
Speaker 2: few weeks so that the vice president could exercise the
27:11
Speaker 2: power to pardon Biden or Biden's son Biden and Biden's son.
27:17
Speaker 5: It would be incredibly unusual. Yes, I've heard the scenario
27:20
Speaker 5: as well. And one of the issues is which I
27:23
Speaker 5: think is even more striking, is would that be seen
27:27
Speaker 5: as sort of patronizing to have our first female by
27:32
Speaker 5: president simply be there for in power for six weeks
27:36
Speaker 5: and largely in order to pardon two males. I mean,
27:40
Speaker 5: it leaves to sort of a sour taste in my mouth.
27:43
Speaker 5: But on the other hand, through that maneuver, President Biden
27:48
Speaker 5: would ensure that his son and maybe himself would never
27:51
Speaker 5: be subject to prosecution, and that he would have a
27:54
Speaker 5: role in ensuring that a female does exercise the reigns
27:59
Speaker 5: of office, even though it's for a short time.
28:01
Speaker 2: I mean, realistically, how much can he get done in
28:04
Speaker 2: the remaining time.
28:06
Speaker 5: You know, it's late in the day. But I do
28:08
Speaker 5: hope that President Biden prioritizes pardons not only for his son,
28:14
Speaker 5: but principally for those on death row, but then to
28:17
Speaker 5: a wider group as well, people who are laboring under
28:20
Speaker 5: long sentences for non violent felonies such as drug possession
28:24
Speaker 5: and larceny and crimes such as those.
28:28
Speaker 2: I mean, in the time left. If he wants to
28:31
Speaker 2: sort of try to help his legacy, it's basically using
28:35
Speaker 2: the pardon power and also you know, working with the
28:38
Speaker 2: Senate to try to get more judges confirmed.
28:41
Speaker 5: What an interesting issue that the Democrats are still planning
28:44
Speaker 5: to increase a bill to increase the judiciary even though
28:47
Speaker 5: Biden won't be able to fill the judge ships. A
28:50
Speaker 5: group of Democrats have agreed to push forward a bill
28:54
Speaker 5: to increase the number of judge ships, you know, bipartisan,
28:57
Speaker 5: because there's just too much work for federal judges. But
29:00
Speaker 5: of course now is not the time you would think
29:03
Speaker 5: that anybody would want to increase a number of judges.
29:06
Speaker 2: Especially Democrats, because then Trump comes in and has the
29:10
Speaker 2: chance to appoint more judges.
29:12
Speaker 5: And I do think from everything I've read that the
29:16
Speaker 5: Biden administration is aggressively pushing forward candidates now to fill
29:20
Speaker 5: the remaining judicial slots. Perhaps a little tardily, but they're
29:24
Speaker 5: trying to catch up as best they can.
29:26
Speaker 2: Let's turn to the Justice Department and the news today
29:29
Speaker 2: that Matt Gates has withdrawn as Trump's pick for Attorney General.
29:35
Speaker 2: That's amid the continuing fallout over a federal sex trafficking
29:39
Speaker 2: investigation that cast doubt on his ability to be confirmed
29:44
Speaker 2: as the nation's chief federal law enforcement officer. Gates, who'd
29:49
Speaker 2: been investigated by the Justice Department before being tapped last
29:53
Speaker 2: week to head it. Hell I know, you thought that
29:57
Speaker 2: having Gates serve as an money general would have backfired
30:02
Speaker 2: on Trump, even though he might have pushed prosecutions of
30:06
Speaker 2: Trump's enemies, of.
30:07
Speaker 5: Course, but the government's far broader than just that. And
30:10
Speaker 5: even if Gates would issue indictments against former members of
30:15
Speaker 5: the Biden administration, he's got to win those cases, and
30:18
Speaker 5: he's got to defend the Trump administration in court on
30:20
Speaker 5: a vast variety of claims. And you know that's all
30:26
Speaker 5: risky move by President Trump. But at the same time,
30:30
Speaker 5: you know, there is a historic sort of independence that
30:34
Speaker 5: people talk about with the Department of Justice. That's a tradition.
30:38
Speaker 5: It's not legally required. So I don't think that taking
30:42
Speaker 5: closer control the Justice Department because I don't think President
30:45
Speaker 5: Trump would be violating any kind of constitutional duty. He
30:50
Speaker 5: would just be violating the norm. And the norm is
30:53
Speaker 5: there for good reasons, very good reasons. But I don't
30:56
Speaker 5: think it's unconstitutional.
30:58
Speaker 2: You're right that people don't realize even Trump doesn't realize
31:01
Speaker 2: the Justice Department is going to be defending him in court.
31:04
Speaker 2: It's going to be challenge after challenge. I mean, environmental
31:08
Speaker 2: groups are getting ready to challenge, immigration groups are getting
31:11
Speaker 2: ready to challenge, and the Justice Department is going to
31:14
Speaker 2: have to answer all these challenges.
31:16
Speaker 5: It's going to be a steady diet of challenge after
31:19
Speaker 5: challenge and labor law in terms of Schedule F and
31:23
Speaker 5: on and on. And you know, if he doesn't have
31:26
Speaker 5: skilled lawyers in those places, even some of his conservative
31:30
Speaker 5: appointments of judges won't bail him out.
31:32
Speaker 2: I mean, he said he's going to revamp the entire
31:35
Speaker 2: justice system. Does he intend to get rid of career prosecutors?
31:41
Speaker 5: The whole schedule F thing is unclear where the line
31:46
Speaker 5: would be between career appointments and political appointments. Obviously he's
31:52
Speaker 5: shifting it to more political appointments, but I'm not sure
31:56
Speaker 5: whether that's going to include line attorneys in the Apartment
32:00
Speaker 5: of Justice or prosecutors in the various offices around the country.
32:04
Speaker 5: I would presume not with respective prosecutors around the country,
32:07
Speaker 5: but maybe members of the d C. Department of Justice
32:11
Speaker 5: might become politicized.
32:13
Speaker 2: Will you explain the schedule less?
32:15
Speaker 4: Yeah.
32:16
Speaker 5: So, one of the proposals that President Trump made but
32:19
Speaker 5: he had left office before he could implement, was transforming
32:23
Speaker 5: thousands of jobs that are currently occupied by civil servants
32:27
Speaker 5: into political appointments, and the goal was, as we saw
32:32
Speaker 5: in even the Dodge Committee discussion by Elon Musk just yesterday,
32:37
Speaker 5: is the goal is to limit the power of the
32:41
Speaker 5: entrenched bureaucracy and increase the agileness of lawyers, who then
32:46
Speaker 5: are just employees who could serve the president's will. And
32:50
Speaker 5: so it's a more of a centralized power of the
32:53
Speaker 5: presidency as opposed to sort of objective efforts made by
32:59
Speaker 5: civil servants. And so hundreds of thousands of people who
33:03
Speaker 5: work for the federal government, so obviously not all of
33:06
Speaker 5: them would be included in this new sort of politicized service,
33:12
Speaker 5: but there might be thousands. And the hope for the
33:16
Speaker 5: Tub administration is if they can make this change, that
33:20
Speaker 5: the government would run more smoothly according to his personal agenda.
33:24
Speaker 2: There's so much to talk about and consider, and Trump
33:28
Speaker 2: hasn't even taken office yet. Thanks so much, Hal. That's
33:31
Speaker 2: Professor Harold Krent other Chicago Kent College of Law. And
33:34
Speaker 2: that's it for this edition of the Bloomberg Law Show.
33:37
Speaker 2: Remember you can always get the latest legal news on
33:39
Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
33:44
Speaker 2: and at www dot bloomberg dot com, slash podcast slash Law.
33:49
Speaker 2: I'm June Grosso and you're listening to Bloomberg