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NY Trump Verdict Remains & Controversial Clemency · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law, with June Brusso from Bloomberg Radio.
0:09
Speaker 2: Donald Trump failed to convince a judge to throw out
0:12
Speaker 2: his conviction in the New York hush money case on
0:15
Speaker 2: presidential immunity grounds, but the case is far from over
0:20
Speaker 2: as the president elect continues to press other challenges to
0:24
Speaker 2: that verdict. Judge One Merschawan rejected Trump's arguments that the
0:28
Speaker 2: trial was tainted by evidence that wouldn't have been allowed
0:32
Speaker 2: under a controversial Supreme Court decision in July that gives
0:36
Speaker 2: presidents broad immunity from criminal charges. Joining me is former
0:40
Speaker 2: federal prosecutor Robert Mintz, a partner McCarter in English, Bob
0:45
Speaker 2: tell us about the decision.
0:47
Speaker 1: The judges ruling essentially rejected Donald Trump's argument that a
0:51
Speaker 1: recent Supreme Court ruling that created criminal immunity for former
0:56
Speaker 1: presidents require the dismissal or the overturn of the conviction
1:01
Speaker 1: in the New York case, and he upheld the former
1:04
Speaker 1: president's felony conviction for falsifying records to cover up a
1:07
Speaker 1: sex scandal.
1:08
Speaker 2: People might be confused because the Supreme Court decision related
1:12
Speaker 2: to presidential actions while he was in office, but in
1:17
Speaker 2: this case, the actions occurred before he took office.
1:21
Speaker 1: Yeah, that's exactly right. The Supreme Court decision that really
1:24
Speaker 1: forms the basis for this motion by the defense to
1:28
Speaker 1: dismiss the New York case was an immunity decision that
1:32
Speaker 1: came out of the Special Council's case in Washington, DC,
1:35
Speaker 1: where mister Trump was accused of plotting to overthrow his
1:39
Speaker 1: twenty twenty election laws. It had nothing to do with
1:42
Speaker 1: the New York case. It was a sixty three ruling
1:45
Speaker 1: that held that a former president was entitled to at
1:47
Speaker 1: least presumptive immunity from prosecution for all of his official acts.
1:53
Speaker 1: And that's really the keyword here, official act. So what
1:56
Speaker 1: the Trump defense team did is to say that although
1:59
Speaker 1: that's Supreme Court case came about as a result of
2:03
Speaker 1: another prosecution, their argument was that it apply here as well.
2:07
Speaker 1: And essentially what they were arguing was that enlightened the
2:10
Speaker 1: Supreme Court's immunity decision, prosecutors that improperly relied on certain evidence,
2:16
Speaker 1: evidence that they said involved official communications during his first
2:20
Speaker 1: term in the White House, and that that therefore tainted
2:23
Speaker 1: the conviction. It had to be overturned.
2:26
Speaker 2: Some of that evidence conversations actually occurred in the Oval
2:31
Speaker 2: Office of the White House, so explain the judges analysis
2:34
Speaker 2: in finding that these weren't official acts.
2:38
Speaker 1: The defense argued that there were two pieces of evidence
2:41
Speaker 1: here that should not have been admitted during the trial.
2:43
Speaker 1: One focus on certain tweets that President Trump had been
2:47
Speaker 1: involved in that were used during the trial that the
2:50
Speaker 1: defense argued should have been excluded as official acts. Justice
2:54
Speaker 1: Marshon rejected that defense effort to portray the tweets as
2:58
Speaker 1: official acts, concluding that they do not constitute the type
3:01
Speaker 1: of conduct that the Supreme Court intended to protect in
3:05
Speaker 1: that decision. The other argument of the defense made, which
3:09
Speaker 1: was really a stronger argument and one I think that
3:11
Speaker 1: Justice Marsham gave more time to and considering, was the
3:15
Speaker 1: argument that certain testimony that was admitted during the trial,
3:19
Speaker 1: testimony that, according to the defense, was critical to the
3:22
Speaker 1: conviction that that should never have been permitted. And what
3:25
Speaker 1: it focused on was the testimony of two of mister
3:28
Speaker 1: Trump's former White House employees, his communications director Hope Hicks
3:32
Speaker 1: and Maddelin wester House, a director of Oval Office operations.
3:37
Speaker 1: The testimony that came in through the prosecution's case was
3:40
Speaker 1: when miss Hicks told the jury about a discussion she
3:43
Speaker 1: had with mister Trump in the White House after the
3:46
Speaker 1: hush money deal with Miss Daniels came to light. Miss
3:49
Speaker 1: Daniels was the former porn star who was allegedly paid
3:53
Speaker 1: off by mister Trump in order to keep that story
3:56
Speaker 1: from breaking during the twenty sixteen campaign. The prosecution argued
4:01
Speaker 1: that the discussions between Miss Hicks and mister Trump were
4:04
Speaker 1: related to solely unofficial conduct and therefore didn't fall within
4:08
Speaker 1: the scope of the Supreme Court decision, and that's exactly
4:11
Speaker 1: what the Court ultimately decided. The Court ruled that the
4:14
Speaker 1: evidence of prosecutors had used was decided the personal act
4:19
Speaker 1: and had to do with falsifying business records and was
4:22
Speaker 1: not the type of official conduct that the Supreme Court
4:25
Speaker 1: was getting at in that immunity decision because it posed
4:28
Speaker 1: no danger of intrusion on the authority and function of
4:31
Speaker 1: the executive branch.
4:33
Speaker 2: So Judge Murshawn was in completely unchartered waters here in
4:38
Speaker 2: applying that rather ambiguous Supreme Court decision on presidential immunity.
4:45
Speaker 2: What does that mean for the chances of reversal on appeal?
4:48
Speaker 1: So let's keep in mind that that Supreme Court decision,
4:52
Speaker 1: which was highly controversial in the eyes of some people,
4:55
Speaker 1: has never been actually applied in practice to a case.
4:59
Speaker 3: Below.
4:59
Speaker 1: This is the first time that any judge is trying
5:02
Speaker 1: to take the guidance from that immunity decision and apply
5:06
Speaker 1: it to an actual case. So it's certain that the
5:09
Speaker 1: Trump team is going to appeal this ruling, first to
5:12
Speaker 1: the Appeals Court in New York, then to what is
5:16
Speaker 1: essentially the New York Supreme Court, which is called the
5:19
Speaker 1: Court of Appeals in New York, and then beyond that
5:21
Speaker 1: they may take it to the US Supreme Court. So
5:24
Speaker 1: it ultimately may wind up before the US Supreme Court again,
5:27
Speaker 1: because the decision has never been tested before, and really,
5:32
Speaker 1: as you say, this is uncharted territory for any judge
5:35
Speaker 1: to apply this decision to an actual criminal case.
5:38
Speaker 2: Judge Marshawn engaged in three levels of analysis here, ending
5:43
Speaker 2: with the idea of harmless error sort of even if
5:47
Speaker 2: I'm wrong about admitting the evidence, its harmless error, it
5:51
Speaker 2: wouldn't have changed the verdict.
5:53
Speaker 1: Yeah, So the judge did go through several layers of
5:56
Speaker 1: analysis here. First, he found that there were some technical
6:00
Speaker 1: issues that the Trump defense team had not raised this
6:03
Speaker 1: at the time of trial. One of the arguments was
6:05
Speaker 1: that they objected to hopeix testimony literally on the first
6:08
Speaker 1: day of trial, and it was too late to raise it.
6:10
Speaker 1: Another argument is that they did not preserve the objection
6:14
Speaker 1: during the course of the trial, but ultimately that was
6:17
Speaker 1: not the basis on which the justice made his decision.
6:20
Speaker 1: He then looked to the core of the Supreme Court decision,
6:24
Speaker 1: which is are these official acts or are they not
6:27
Speaker 1: official acts? Because the Supreme Court decision says there's presumptive
6:31
Speaker 1: immunity for official conduct, but they did not say that
6:35
Speaker 1: every act by a president while in office constitutes official conduct.
6:40
Speaker 1: And so he looked at that issue and ultimately determined
6:44
Speaker 1: that the conduct here that the defense was complaining about
6:48
Speaker 1: was not within the official scope of the president's authority
6:51
Speaker 1: as president because it either involved conduct that predated his
6:56
Speaker 1: becoming president, or even after he became president, it was
7:00
Speaker 1: focused on issues that predated his becoming president. Then the
7:04
Speaker 1: judge further looked at the question of even if it
7:08
Speaker 1: was admitted improperly, in other words, even if you were
7:12
Speaker 1: to concede that the testimony of Hopehicks should not have
7:15
Speaker 1: been presented to the jury, they judged fat it with
7:17
Speaker 1: something called harmless error, which means that in a case
7:20
Speaker 1: where there is an enormous amount of evidence and there's
7:23
Speaker 1: one piece of evidence that the court would say perhaps
7:26
Speaker 1: was improvidently admitted and put before the jury, you don't
7:30
Speaker 1: have to throw the entire case out and retried it
7:33
Speaker 1: again if the judge concludes that it was what's called
7:36
Speaker 1: harmless error. In other words, there was an overwhelming abundance
7:40
Speaker 1: of evidence that the jury could have relied on for
7:43
Speaker 1: the conviction, and this additional piece of evidence was essentially surplus.
7:47
Speaker 1: The isg it wasn't necessary the jury had more than
7:50
Speaker 1: an apple basis to reach the verdict that it did
7:53
Speaker 1: without considering the evidence that may have been improperly presented
7:56
Speaker 1: to them.
7:57
Speaker 2: So about these motions flow sort of logical from that
8:00
Speaker 2: Supreme Court case. But Trump has also made a motion
8:04
Speaker 2: to throw out the case entirely due to his re election,
8:08
Speaker 2: claiming he has categorical immunity from prosecution. These are all
8:14
Speaker 2: novel arguments. Of course, We've never had a president who's
8:18
Speaker 2: been elected despite having felony convictions tell us about his arguments.
8:23
Speaker 1: Sure, so, there is considerable deference that is given to
8:27
Speaker 1: presidents in order to make sure that there are not
8:31
Speaker 1: legal proceedings that interfere with their ability to carry out
8:34
Speaker 1: their official acts. Obviously, you don't want a president focusing
8:38
Speaker 1: on a criminal conviction or a criminal prosecution while they're
8:42
Speaker 1: in office, and so there's a lot of difference, and
8:44
Speaker 1: there's a lot of law that says that a president
8:48
Speaker 1: should not be encumbered with these types of things while
8:50
Speaker 1: they're in office. And there's also some unwritten Department of
8:54
Speaker 1: Justice policies out there that says you don't indict a
8:57
Speaker 1: sitting president for the very same reasons. So the Trump
9:00
Speaker 1: defense team is latching on to those types of decisions
9:04
Speaker 1: and those types of policies to say that this conviction
9:08
Speaker 1: really would interfere with President Trump's ability to serve his
9:12
Speaker 1: second term here, and they're asking that this New York
9:15
Speaker 1: case be unwinded. They're saying that the electoral victory really
9:19
Speaker 1: requires that this case be thrown out because it would
9:22
Speaker 1: interfere with his ability to carry out his duties as
9:26
Speaker 1: president of the United States. And one of the things
9:28
Speaker 1: that prosecutors have offered up here is the opportunity to
9:33
Speaker 1: simply stay this case and to await the sentencing until
9:37
Speaker 1: after President Trump is no longer in office. The Trump
9:40
Speaker 1: defense team has attacked that as well, saying that you
9:43
Speaker 1: could not have a president who is able to freely
9:47
Speaker 1: operate and make decisions if hanging over his head is
9:50
Speaker 1: the prospect that anything he does while in office may
9:54
Speaker 1: affect his criminal sentencing, which would come at the conclusion
9:57
Speaker 1: of his term.
9:58
Speaker 2: On the other side of that, you have a jury verdict.
10:01
Speaker 2: So a jury came back and made this decision, is
10:05
Speaker 2: the judge just going to toss that decision because Trump
10:09
Speaker 2: became president. It seems like a slap in the face
10:13
Speaker 2: of the justice system if he does.
10:14
Speaker 1: That well, And that's exactly what prosecutors are arguing. I
10:18
Speaker 1: think the Manhattana is sensitive to the unique circumstance in
10:22
Speaker 1: which they find themselves, with this case having ganti jury
10:27
Speaker 1: having reached a verdict, a verdict in which jury's unanimously
10:32
Speaker 1: convicted former President Trump on thirty four accounts, but he
10:36
Speaker 1: is not yet been sentenced, and that sentencing was delayed
10:39
Speaker 1: by appeals and other issues. And now, of course he's
10:43
Speaker 1: been re elected and will a month from now he's
10:46
Speaker 1: sworn in his president of the United States. So the
10:48
Speaker 1: DA's office has to figure out what did they do
10:51
Speaker 1: about this sentencing? And there's a couple options that they
10:53
Speaker 1: put out there. One is they could hold the sentencing
10:57
Speaker 1: off until after he's completed his term. Another option would
11:01
Speaker 1: be to allow the sentencing to go forward and Justice
11:05
Speaker 1: Mershon could sentence form of President Trump to a term
11:08
Speaker 1: of probation, which would not involve incarceration that interferes his
11:12
Speaker 1: ability to serve as president. And then another really novel
11:16
Speaker 1: idea that the DA throughout was to treat this case
11:20
Speaker 1: as they do in a situation in which a defendant
11:23
Speaker 1: goes to trial, is convicted, and then subsequently dies before
11:28
Speaker 1: they are sentenced. In that case, the conviction is not vacated,
11:33
Speaker 1: but there's also no sentencing, and so it just stands
11:36
Speaker 1: as a conviction, but there's never a sentencing, and that's
11:39
Speaker 1: just the way the case ends. And Manhattandia's office has
11:42
Speaker 1: thrown that out as an option. Also, I don't think
11:45
Speaker 1: that's likely to be taken up by the judge. I
11:47
Speaker 1: think the judge is likely to either at the end
11:50
Speaker 1: of the day proceed with the sentencing and send President
11:53
Speaker 1: Trump to probation. More likely, he may simply hold this
11:57
Speaker 1: sent thing off until after President from complete his term,
12:01
Speaker 1: but Justice Vershon still has to rule on a number
12:04
Speaker 1: of these other motions that the Trump defense team have
12:07
Speaker 1: filed with the court. And bear in mind, once again,
12:10
Speaker 1: ask to every one of these decisions made by Justice Vershon,
12:13
Speaker 1: They're all likely to be appealed not only to the
12:16
Speaker 1: Court of Appeals in New York, but to the New
12:18
Speaker 1: York Supreme Court and then perhaps ultimately to the United
12:21
Speaker 1: States Supreme Court. So all of these decisions will likely
12:24
Speaker 1: be held in advance for quite some time as they
12:26
Speaker 1: run through the appeals process.
12:29
Speaker 2: It seems as if what the Trump defense team is
12:31
Speaker 2: trying to do is to get this going fast so
12:34
Speaker 2: that Trump doesn't go down in history as the first
12:37
Speaker 2: criminal felon to serve as president. And January twentieth is
12:42
Speaker 2: quickly approaching, so not likely that this is all going
12:46
Speaker 2: to get done by then, is it. No.
12:48
Speaker 1: I don't think we're going to see any finality to
12:50
Speaker 1: this before former President Trump is sworn in for his
12:53
Speaker 1: second term. It will really likely be held in abeyance,
12:58
Speaker 1: and the questions about whether this conviction will ultimately remain
13:02
Speaker 1: or not will not be answered for many months, if
13:05
Speaker 1: not years, down the road.
13:07
Speaker 2: So lots more decisions to come in this case. Thanks Bob.
13:10
Speaker 2: That's Robert Mints of maccarter and English coming up the
13:14
Speaker 2: controversy around Biden's commutations. This is Bloomberg.
13:20
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
13:26
Speaker 2: It was the largest single day act of clemency in
13:29
Speaker 2: modern history. President Joe Biden commuted the sentences of about
13:34
Speaker 2: fifteen hundred people who were released from prison and placed
13:37
Speaker 2: on home confinement during the pandemic, and pardoned thirty nine
13:41
Speaker 2: Americans convicted of nonviolent crimes. Here's White House Press Secretary
13:46
Speaker 2: Corrine Jean Pierre.
13:48
Speaker 4: The Americans receiving relief today include a decorated military veteran,
13:53
Speaker 4: a nurse who has led response for a number of
13:57
Speaker 4: natural disasters.
13:59
Speaker 2: However, she did not mention that included in the clemency
14:02
Speaker 2: grant was former Pennsylvania judge Michael Conahan, who orchestrated the
14:07
Speaker 2: Kids for Cash scheme to send some twenty three hundred
14:11
Speaker 2: children to for profit prisons on false charges in exchange
14:16
Speaker 2: for nearly three million dollars in kickbacks. Pennsylvania Governor Josh Shapiro,
14:21
Speaker 2: a Democrat, condemned that clemency grant.
14:24
Speaker 5: But I do feel strongly that President Biden got it
14:27
Speaker 5: absolutely wrong and created a lot of pain here in
14:33
Speaker 5: northeastern Pennsylvania. This was not only a black eye on
14:38
Speaker 5: the community the Kids for Cash scandal, but it also
14:42
Speaker 5: infected families in really deep and profound in sad ways,
14:48
Speaker 5: some children took their lives because of this. Families were
14:52
Speaker 5: torn apart.
14:53
Speaker 2: Joining me as an expert in constitutional law, Harold Krant,
14:56
Speaker 2: a professor at the Chicago Kent College of Law, tell
15:00
Speaker 2: us about the clemency grant.
15:01
Speaker 3: Generally, President Biden Leman's administration used his August power to
15:08
Speaker 3: grant pardons and clemency to the largest number of people
15:12
Speaker 3: who ever are given some kind of relief in one day,
15:16
Speaker 3: and there were fifteen hundred people who received clemency. When
15:19
Speaker 3: clemency is it retains the fact of conviction, any kind
15:24
Speaker 3: of problems with convictions that follow on for life, right
15:28
Speaker 3: to vote in some states, right to hold office, et cetera.
15:31
Speaker 3: But it allows them to be free of any kind
15:35
Speaker 3: of you either jail time or other kind of oversights
15:39
Speaker 3: such as probation, drug testing, et cetera. And he granted
15:43
Speaker 3: fifteen hundred people this blessing of clemency for those who
15:47
Speaker 3: had previously been released during COVID but because of fear
15:52
Speaker 3: of overcrowding in prisons, in the fact that there were
15:54
Speaker 3: non violent offenders, so it was an easy objective way
15:58
Speaker 3: to reach out and show some people mercy who again
16:02
Speaker 3: had been determined previously were nonviolent and could be released
16:07
Speaker 3: without any kind of problems. So it was a handyway.
16:11
Speaker 3: It wiped the slate clean for the most part for
16:14
Speaker 3: these individuals. But of course it was somewhat controversial because
16:18
Speaker 3: even though these were non violent offenders, he didn't pick
16:21
Speaker 3: and choose amongst them, and so there were some pretty behaffors.
16:26
Speaker 3: Let us say, who received the gift of clemency in
16:30
Speaker 3: that fifteen hundred total right.
16:32
Speaker 2: So one of the clemencies was to a judge who
16:37
Speaker 2: helped orchestrate one of the worst judicial scandals in history,
16:41
Speaker 2: a scheme to send children to two profit jails in
16:45
Speaker 2: exchange for kickbacks, and even the governor of Pennsylvania, a Democrat,
16:50
Speaker 2: said I do feel strongly that President Biden got it
16:53
Speaker 2: absolutely wrong and created a lot of pain here in
16:57
Speaker 2: northeastern Pennsylvania. Another was a woman who was convicted of
17:02
Speaker 2: him Beasley more than fifty three million dollars in taxpayer money,
17:06
Speaker 2: which was one of the largest depths of public funds
17:09
Speaker 2: in Illinois state history. Shouldn't the Biden administration have excluded
17:14
Speaker 2: some of these people with egregious crimes?
17:18
Speaker 3: Yeah, I mean the question that it should be raised
17:20
Speaker 3: is why didn't this happen all during the administration? Should
17:24
Speaker 3: have been more ordered, more carefully thought out. I mean
17:27
Speaker 3: Rita Grondwell, who had just mentioned, was the controller in Dixon, Illinois,
17:32
Speaker 3: and you know, she took fifty million dollars from kids,
17:35
Speaker 3: you know, in terms of the ability to educate them.
17:38
Speaker 3: And she still she returned some of it, but still
17:40
Speaker 3: Owes I think at least ten million dollars at least
17:43
Speaker 3: is missing right now. Still, and of course the Pennsylvania
17:46
Speaker 3: Kids for Cash scandal is terrible. And if he had
17:48
Speaker 3: done a case by case analysis of who deserved clemency,
17:53
Speaker 3: they presumably would not have received it. I mean, clearly,
17:56
Speaker 3: they are already out of jail, and they have demonstrated
17:59
Speaker 3: to some authority that they aren't likely to commit offense
18:02
Speaker 3: again in the future. But do they really merit clemency
18:06
Speaker 3: wiping off any kind of oversight they have from probation,
18:10
Speaker 3: that's the question. But he couldn't do that because he
18:12
Speaker 3: waited a long time. It wasn't his priority and he
18:16
Speaker 3: wanted to do something towards the end of the administration.
18:18
Speaker 3: I don't think he's done, and so he just used
18:21
Speaker 3: bright line rules of whoever has been previously released as
18:25
Speaker 3: not a danger, he'll let them wipe off anymore oversight
18:29
Speaker 3: from their books. So in some cases they had three
18:33
Speaker 3: years of probation oversight, meaning meetings with probation officers, presumably
18:37
Speaker 3: drug testing and all that now is forgiven for those individuals,
18:43
Speaker 3: including the ones that we just mentioned.
18:45
Speaker 2: Before this, President Obama granted three hundred and thirty commutations
18:50
Speaker 2: to non violent drug offenders, and that was the most
18:52
Speaker 2: granted in one day in US history until now. I mean,
18:56
Speaker 2: is he just trying to beat the record?
18:58
Speaker 3: No, I think it's a recognition and better do something late,
19:02
Speaker 3: not perfect, and do nothing at all. And you know,
19:04
Speaker 3: I agree with that. It's it's just too bad that
19:07
Speaker 3: this was a not a priority at all, you know,
19:10
Speaker 3: during his administration, and so he had to address this
19:13
Speaker 3: in more of a you know, kind of a ham
19:16
Speaker 3: handed way because he didn't have the time to decide
19:19
Speaker 3: which of these fifteen hundred to grant and which not
19:22
Speaker 3: to So.
19:23
Speaker 2: He's still considering. The White House said he's still considering
19:26
Speaker 2: more pardons and commutations, and opponents of capital punishment have
19:32
Speaker 2: called on him to empty federal death row by commuting
19:36
Speaker 2: the inmates sentences to life in prison. Knowing that Donald
19:40
Speaker 2: Trump is going to once he gets into office, start
19:45
Speaker 2: federal executions again as he did in his first term.
19:48
Speaker 3: Yeah, I mean prison finding campaigned on a pledge that
19:52
Speaker 3: he was against the death penalty. So the question, as
19:55
Speaker 3: origen when we've talked about it before, is why has
19:58
Speaker 3: he taken so long to decide whether to commute the
20:01
Speaker 3: sentences of those forty individuals who are languishing on death
20:07
Speaker 3: row in federal prisons. Now, there's definitely some bad actors
20:10
Speaker 3: involved in those forty individuals, there's no doubt about it,
20:13
Speaker 3: including the Boston marathon massacre mastermind. But the question is,
20:19
Speaker 3: if you don't believe in the death penalty as a
20:22
Speaker 3: moral basis, shouldn't you be commuting those sentences? And my
20:26
Speaker 3: guess is he will, But again, why takes so long?
20:30
Speaker 2: The focus has been for the last few months, I mean,
20:33
Speaker 2: since he lost the election whether or not he is
20:37
Speaker 2: going to do preemptive pardons of people who might be
20:41
Speaker 2: targeted by the Justice Department under Trump. I mean, there
20:46
Speaker 2: are many people that Trump has said he's going to target,
20:49
Speaker 2: like Jack Smith and you know Alvin Bragg, the people
20:53
Speaker 2: who prosecuted him. Some are saying that would set a
20:56
Speaker 2: bad precedent, But preemptive pardons are not on presidented are they.
21:01
Speaker 3: So Preemptive partners are part of the president's playbook. Most
21:05
Speaker 3: famous is Gerald Forge preemptive pardon for President Nixon after
21:09
Speaker 3: President Nixon resigned through the Watergate scandal. And the way
21:13
Speaker 3: President Ford wrote that was for a preemptively pardon for
21:17
Speaker 3: any kind of illegal activities that he undertook as president
21:21
Speaker 3: of the United States. So that is a precedent which
21:25
Speaker 3: is quite broad. And of course there was a bit
21:28
Speaker 3: of a preemptive partner for a son hunter Biden as well,
21:32
Speaker 3: the combined pardon for what was identified in the past,
21:34
Speaker 3: but also preemptively for any ten year period or so
21:37
Speaker 3: of what he might be charged for. So it's accepted
21:41
Speaker 3: that president's power includes the prempted power, and that really,
21:44
Speaker 3: you know, it is a terrible conflict for those who
21:47
Speaker 3: might be extended it because if you think you've done
21:49
Speaker 3: no wrong. Let's say you're a Jack Smith, do you
21:52
Speaker 3: know that if you take this get out of jail
21:54
Speaker 3: free card it helps your family, you don't have to
21:57
Speaker 3: go through public disgrace of a trial and the class
22:00
Speaker 3: and the pressures of it. But on the other hand,
22:02
Speaker 3: do you look a little guilty? And so that's what
22:06
Speaker 3: There's been a lot of discussions, I'm sure in the
22:09
Speaker 3: inner circles of the White House and amongst these individuals
22:11
Speaker 3: who've been targeted by President Trump about what should happen.
22:15
Speaker 3: So it's not an easy trade off. And I think
22:17
Speaker 3: if given a choice, some of those on President Trump's
22:21
Speaker 3: list would say, yes, I'll take the part in just
22:24
Speaker 3: in case, it's just important for my family, and others
22:27
Speaker 3: would say never, because I'm never going to look as
22:30
Speaker 3: if I did anything wrong or not. And it may
22:33
Speaker 3: be that one option is for President Biden just to
22:37
Speaker 3: extend the part to those who earlier had said they'll
22:41
Speaker 3: take it and they don't want to run the risk
22:43
Speaker 3: of all the money, all the bad publicity.
22:46
Speaker 2: Yeah, because some of them, it seems like some of
22:49
Speaker 2: them would be protected from prosecution. For example, he's often
22:52
Speaker 2: mentioned Senator elect Adam Schiff, But he'd be protected, wouldn't
22:57
Speaker 2: he under the Speech and debate clause, And federal and
23:01
Speaker 2: state prosecutors who are operating under the color of law
23:06
Speaker 2: would also be protected. Yeah.
23:08
Speaker 3: I mean, most of these so called Trump prosecutions of
23:11
Speaker 3: his opponents are fanciful because you know, it wouldn't be
23:14
Speaker 3: able to indict them even for grand jury. And as
23:17
Speaker 3: you mentioned, there's a variety of immunities. Nancy Pelosi and
23:22
Speaker 3: Attom Shift obviously have the community from being members of
23:26
Speaker 3: Congress in their investigations, and the executive officials that prosecutors
23:32
Speaker 3: have absolute immunity for the prosecutorial actions, such as Jack
23:35
Speaker 3: Smith to some extent Merrick Ireland as well. So it's
23:39
Speaker 3: really unlikely that President Trump would have any kind of
23:43
Speaker 3: success in prosecuting most of those whose already identify as targets.
23:48
Speaker 3: But you know, you never know. Maybe there's going to
23:50
Speaker 3: be a state prosecutor who's willing to do the President's
23:55
Speaker 3: bidding who isn't found by the same kind of immunity doctrines,
23:59
Speaker 3: or may it's just a matter of public humiliation that
24:02
Speaker 3: he's trying to wreck. But I think the chances of
24:05
Speaker 3: success on this political basis are few and far between.
24:08
Speaker 2: But as you mentioned, even if you'll be successful ultimately
24:12
Speaker 2: because of the speech and debate clause or something else,
24:15
Speaker 2: you still have to go through what may be a
24:17
Speaker 2: humiliating process which could take time to resolve.
24:21
Speaker 3: And who's going to pay for the attorneys? Right, It's
24:23
Speaker 3: not clear that individuals have kind of ready access to
24:27
Speaker 3: free legal work to protect them. I mean, there should
24:29
Speaker 3: be some people who would volunteer their time to represent individuals,
24:33
Speaker 3: but to some extent, individuals wires are going to need
24:37
Speaker 3: to be paid in order to raise these arguments to
24:39
Speaker 3: get out from under the shadow of some kind of indictment.
24:43
Speaker 3: So there are trade offs. And Adam Schmiths already said
24:47
Speaker 3: he would have rejected pardon whether it's true. Who knows
24:49
Speaker 3: it's likely to be true. I'm sure Nancy Pelosi would
24:52
Speaker 3: reject it as well, but maybe others would say, hey,
24:55
Speaker 3: I want to protection.
24:57
Speaker 2: Coming up next on the Bloomberg Law Show, Donald Trump
25:00
Speaker 2: says he'll grant some pardons as soon as he takes office.
25:03
Speaker 2: I'm June Grosso and you're listening to Bloomberg. President Joe
25:07
Speaker 2: Biden is commuting the sentences of roughly fifteen hundred people
25:11
Speaker 2: who were released from prison and placed on home confinement
25:15
Speaker 2: during the coronavirus pandemic, and he's pardoning thirty nine Americans
25:20
Speaker 2: convicted of nonviolent crimes. Biden said he would be taking
25:24
Speaker 2: more steps in the weeks ahead and would continue to
25:27
Speaker 2: review clemency petitions. It's not clear whether he'll issue preemptive
25:32
Speaker 2: pardons for those that might be targeted by Donald Trump
25:36
Speaker 2: when he takes office, but those who received the pardons
25:39
Speaker 2: would have to accept them, and some like California Senator
25:43
Speaker 2: elect Adam shiff who was part of the House committee
25:45
Speaker 2: that investigated the January sixth insurrection, said such a pardon
25:50
Speaker 2: would be unnecessary.
25:53
Speaker 3: I think it's unnecessary.
25:54
Speaker 5: But second, the precedent of giving blanket pardons preempted blanket gardens.
26:01
Speaker 3: On the way out of an administration. I think as
26:03
Speaker 3: a precedent we don't want to set.
26:04
Speaker 2: I've been talking to Harold Krant, a professor at the
26:06
Speaker 2: Chicago Kent College of Law. So how as you heard
26:10
Speaker 2: some say that it would set a precedent, a bad
26:14
Speaker 2: precedent if Biden issues these preemptive pardons on his way
26:19
Speaker 2: out of office, that Trump might replicate that when he
26:22
Speaker 2: leaves office.
26:23
Speaker 3: Well, I mean the door's already opened, right, I mean,
26:26
Speaker 3: I don't think there's any kind of issue about that.
26:29
Speaker 3: I mean, we know that one hundred Biden received, We
26:31
Speaker 3: know that President Clinton's have further received a pardon. So
26:35
Speaker 3: the presidents are there. It's just the question is is
26:37
Speaker 3: their political will for the president to continue to use
26:40
Speaker 3: the pardon in that kind of fashion for political reasons,
26:44
Speaker 3: But you know, there may be again good reasons to
26:47
Speaker 3: protect people who were loyal to the administration and say that,
26:51
Speaker 3: you know, as a going away present, and so this
26:54
Speaker 3: is a promise to loyal members of administration that you
26:57
Speaker 3: don't have anything to worry about in terms of revenge,
27:00
Speaker 3: and the vengeance you know isn't spikotis. I mean, President
27:03
Speaker 3: Trump on numerous occasions had said I want to make
27:06
Speaker 3: this a priority of my administration. So I don't think
27:08
Speaker 3: it's frivolous, even though I think most of these induidments
27:12
Speaker 3: will be frivolous. But nonetheless it costs time and money
27:15
Speaker 3: to fight against it. So we're willing, are.
27:19
Speaker 2: So you mentioned Hunter Biden's pardon, and even when the
27:22
Speaker 2: White House Press Secretary was announcing these recent clemency. There
27:27
Speaker 2: were questions still about the President's decision to pardon his son, Hunter,
27:31
Speaker 2: and it seems like, you know, in the history books
27:34
Speaker 2: when they talk about his administration and pardon, the first
27:37
Speaker 2: thing they may say is he pardoned his son Hunter Biden,
27:41
Speaker 2: just like you hear about Bill Clinton pardon his brother.
27:43
Speaker 2: And the Press secretary defended Biden's pardon of his son
27:47
Speaker 2: by referring to the letter that he wrote saying that
27:51
Speaker 2: Hunter Biden was singled out because he was my son,
27:54
Speaker 2: and raw politics entered into the process. But what did
27:58
Speaker 2: you think about the blanket nature of that pardon over
28:04
Speaker 2: a ten year period. Whatever he's done over a ten
28:07
Speaker 2: year period, whether it's been charged yet or not.
28:10
Speaker 3: To me, it seems that there is some concern by
28:13
Speaker 3: President Biden that his son may have done something else. Right,
28:16
Speaker 3: that's the implication that one can draw from that. He's
28:20
Speaker 3: not just being pardoned for what he was charged with,
28:23
Speaker 3: the tax evasion or the drug use. I mean, he
28:26
Speaker 3: may have been charged with other crimes. And I think
28:28
Speaker 3: that's what it sounds like to the average observer. And
28:31
Speaker 3: the President Biden wanted to take the step and make
28:33
Speaker 3: sure that the Trump administration did not look for other
28:36
Speaker 3: kinds of misbehavior and misconduct by Hunter Biden, and they
28:40
Speaker 3: probably would have. So I think it's his decision to
28:44
Speaker 3: protect his son, but it does look to again an
28:48
Speaker 3: ignorant observer, that there was something to hide, something to protect,
28:52
Speaker 3: and we may find out about it later, we may not.
28:55
Speaker 2: On his last day in office, Bill Clinton pardoned Mark Rich,
28:58
Speaker 2: this fugitive nancier who'd made deals with shady international regimes.
29:03
Speaker 2: He was on the FBI's ten most wanted list, and
29:06
Speaker 2: Clinton has since said he regrets the pardon because, I mean,
29:09
Speaker 2: do you think that, no matter what good he does
29:11
Speaker 2: with clemency petitions or pardons, the first thing that comes
29:15
Speaker 2: up in the history books is going to be he
29:17
Speaker 2: pardoned his son when he said.
29:18
Speaker 3: He wouldn't exactly, And there's two things about it. I mean,
29:21
Speaker 3: first of all, he said he wouldn't pardon the son
29:23
Speaker 3: and then did it, which again looks bad in terms
29:26
Speaker 3: of history. But the second thing that my reaction is
29:30
Speaker 3: he seems to be blaming his own Justice department for
29:34
Speaker 3: politicized prosecution of Hunter. That doesn't go down well with
29:38
Speaker 3: me at all in the sense that he's sort of
29:40
Speaker 3: abandoning those that he in fact has empowered to make
29:43
Speaker 3: those decisions. So I think for that reason as well,
29:46
Speaker 3: the pardon of Hunter Biden is going to sit uneasily
29:50
Speaker 3: with many people. Again the change of mind and the
29:53
Speaker 3: fact that he blamed his own Justice Department for politicized prosecution.
29:58
Speaker 2: Some have actually suggested, and one being Pennsylvania Democratic Senator Fetterman,
30:05
Speaker 2: that Biden should pardon Trump before he leaves office. Does
30:10
Speaker 2: that make any sense to you?
30:11
Speaker 3: It could make sense. I think the time has passed
30:14
Speaker 3: for when he should have offered that from now President Trump.
30:18
Speaker 3: I think it would have been a kind of gesture,
30:21
Speaker 3: if you will, about bringing the very politicized halves of
30:24
Speaker 3: our country together. President Trump may well have said no,
30:28
Speaker 3: and of course the pardon would not have extended to
30:31
Speaker 3: the Georgia in New your cases, But because the likelihood
30:35
Speaker 3: was so little now of continued prosecution in four years,
30:38
Speaker 3: it probably would have been an easy thing for President
30:41
Speaker 3: Biden's to do. I think with each successive week it's
30:43
Speaker 3: less likely that he'll use that power to offer President
30:47
Speaker 3: Trump pardon.
30:48
Speaker 2: So now let's turn to Trump for a minute, because
30:50
Speaker 2: he said in an interview published with Time magazine, he
30:54
Speaker 2: said that within minutes or hours of taking office, he
30:57
Speaker 2: would pardon people convicted of crime related to the January
31:02
Speaker 2: sixth attack. And Trump has been saying versions of that
31:06
Speaker 2: for years. What kind of a message would that send?
31:09
Speaker 3: Well, he has said that consistently, but he's been inconsistent
31:12
Speaker 3: with respect to whether to offer pardon to all January
31:17
Speaker 3: sixth sort of insurgents, if you will, protesters, or just
31:22
Speaker 3: those who are nonviolent. You know, I can understand the
31:25
Speaker 3: pardon for the nonviolentce trespassers if you will, into the capitals,
31:30
Speaker 3: But I think with those who actually attacked officers, whether
31:33
Speaker 3: they were capital officers or PC police officers, you know,
31:37
Speaker 3: I think that it's in a terrible signal that you
31:40
Speaker 3: can attack a police officer and the President's going to
31:44
Speaker 3: get out of jail card free.
31:45
Speaker 2: The early December that Biden administration received nearly twelve thousand
31:49
Speaker 2: petitions for clemency and more than fourteen hundred petitions for pardons.
31:53
Speaker 2: So do you think that we'll hear more pardons or
31:56
Speaker 2: grants of clemency before he leaves office.
31:59
Speaker 3: I'm convinced will, but it's not going to be this
32:01
Speaker 3: fullsale nature. As the most recent list of clemency petitions
32:06
Speaker 3: in particular revealed. I think there'll be more targeted individuals,
32:10
Speaker 3: case by a case basis, those whose applications may have
32:14
Speaker 3: been pending for several years now, so we'll see more.
32:19
Speaker 3: And I'm still guessing that we'll see commutations for those
32:24
Speaker 3: on death row, which are obviously everybody is concerned about.
32:30
Speaker 3: But time will tell. Now, the one thing President Biden
32:33
Speaker 3: could do in some of these last cases is also
32:35
Speaker 3: attached conditions to some of these clemency or parts. We
32:39
Speaker 3: know from the past that the Supreme Court has upheld
32:42
Speaker 3: the use of conditions on pardons, So perhaps some of
32:46
Speaker 3: the offenders can be commuted on the ground that they
32:50
Speaker 3: do consider to have drug testing every x number of months,
32:55
Speaker 3: or some other offenders might be pardoned completely as long
33:00
Speaker 3: as they don't engage in certain kinds of such such
33:05
Speaker 3: as the controller of the Dixon School District that we
33:07
Speaker 3: talk to, maybe a condition on her clemency should have
33:10
Speaker 3: been that she never worked as a controller or accountants. Again,
33:14
Speaker 3: so we might see some individualized uses of the clemency
33:18
Speaker 3: power to attach a condition to protect the public a
33:21
Speaker 3: little more than he has so far, but we'll have
33:23
Speaker 3: to see that that will only be on a case
33:25
Speaker 3: by case basis if we need extra protections, but he
33:28
Speaker 3: still wants to protect an individual from either staying in
33:32
Speaker 3: jail or from being on continued probation for three, four
33:38
Speaker 3: or five more years, as many were in the recent
33:41
Speaker 3: fifteen hundred acts of clemency that he offered.
33:44
Speaker 2: Sure, we're going to be hearing a lot more about
33:46
Speaker 2: this in the month to come. Thanks so much. How
33:50
Speaker 2: that's Professor Harold Krent of the Chicago Kent College of Law.
33:54
Speaker 2: And that's it for this edition of the Bloomberg Law Podcast.
33:57
Speaker 2: Remember you can always get the latest legal news by
34:00
Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify,
34:04
Speaker 2: and at Bloomberg dot com, slash podcast, Slash Law. I'm
34:08
Speaker 2: June Grosso and this is Bloomberg