Pardon Power

Speaker 1 0:01

Welcome to the Jack Hopkins Show podcast , where stories about the power of focus and resilience are revealed by the people who live those stories and now the host of the Jack Hopkins Show podcast , Jack Hopkins , Hello and welcome to the Jack Hopkins Show podcast .

Speaker 2 0:22

I'm your host , jack Hopkins . Welcome to the Jack Hopkins Show podcast . I'm your host , jack Hopkins . Today I am excited to introduce to you Kimberly Whaley .

Speaker 2 0:30

She is a tenured law professor , writer and legal contributor for ABC News and a former legal analyst for CBS News . She is an expert in civil procedure , constitutional law , administrative law and the separation of powers . She writes on democracy and separation of powers , outsourcing government and the federal administrative state . Before joining ABC News , kim was a contributor for the PBS , syndicated BBC World News and BBC World News America . She is also an op-ed contributor for Politico , the Atlantic , the Hill , the Guardian and the Bulwark and a regular commentator on NPR's Morning Edition . She has authored four books . Her latest and the fourth you're going to learn a little bit about today in this episode . It's called Pardon Power how the Pardon System Works and why , and it will be released on September 2nd .

Speaker 2 1:39

Kim is best known for her ability to demystify legal concepts and , believe me , in this episode she's going to demonstrate that , and I have to say I was impressed . She's somebody that can take that otherwise complicated concept and explain it to you in a way that somebody in the fifth grade could understand , and that's a real gift . Kim graduated from the University of Michigan Law School . She has also argued several cases before the United States Court of Appeals , for the DC Circuit and other appellate courts . Whaley is a tenured professor of law at the University of Baltimore Law School . Professor of law at the University of Baltimore Law School and her current role for ABC News began with the hearings by the House Committee on January 6 , 2021 , and now spans other breaking legal news . She hosts a periodic show called Hashtag Simple Politics on Instagram and you can find out more about her at Kimberly Whaley dot com , and that is WEHLE dot com .

Speaker 2 2:51

Kimberly Whaley dot com resume . There's just I could have put another 10 minutes of experiences and credentials and things that she's accomplished in there , so I had to kind of pick and choose and go through so we could get right into the show . But , believe me , there's a lot more to Kimberly Whaley and you're going to find out some of the a lot more in this episode of the Jack Hopkin Show podcast . Let's get right into the show , okay ? So , kim , let's get into why you decided to write your book . That will be coming out and remind me I think it's September 2nd , but that goes live .

Speaker 3 3:48

Right , it comes out September 2nd . So this is my fourth book , and the first three are on the constitution , on voting and on thinking like a lawyer , respectively . And actually this publisher approached me to ask to do the fourth in that series , which are all about why we have things that we have , how to read the Constitution and why , what you need to know about voting and why . So it seemed logical , given that I write about the Constitution and the pardon power is so central , even more today than it was when I started writing it kind of flowed and so I was happy to go ahead and write it , and it grew very prescient that this publisher thought this would be a good idea .

Speaker 2 4:33

Absolutely , and it's always nice when your publisher comes to you and says will you write another book , right ? So tell us the title of this newest book that's coming out .

Speaker 3 4:47

It's called Pardon Power , how the Pardon System Works and why , of course , the and why is the sort of signature part of my titles Interesting ?

Speaker 2 4:59

Well , when I originally contacted you and you said , sure , we can do it if we can talk about . And then you told me about your book and all I needed to see was the word pardon for this reason of him having another term in office , the whole idea of a president , but a rogue president , being able to just take his magic wand and say , eh , you did this , but it's okay . Or and this is where we'll get into some further questions my understanding , which may be incorrect , is that you can be pardoned for crimes that you might commit or might be committing , rather than just past crimes . Is that correct ?

Speaker 3 6:00

You cannot be pardoned for crimes that have not yet occurred okay but you can be pardoned and this is not in the in the supreme court case law . This is a as a matter of history , when , uh , gerald ford pardoned richard nixon for the watergate related crimes , there were no indictments , so you can be pardoned , or it's understood anyway . So you can be pardoned , or it's understood anyway that you could be construed as requiring not just that there be charges but there be a conviction . And under the Department of Justice's pardon attorney guidelines which Donald Trump ignored in , I think , record numbers and just kind of bypassed that system you're not eligible for a federal pardon under the guidelines until five years after you've served your sentence somebody requests a presidential pardon , there's at least the assumption that they at least think they've committed a crime if they're asking for it .

Speaker 2 7:33

In other words , if I knew , if I had consulted with my attorneys and we were all on board that I had committed no crime , it's not even questionable . It would be rather foolish for me to ask for a pardon , would it not ?

Speaker 3 7:48

Well , I think that depends on timing . So you know , six members of Congress asked Donald Trump for pardons related to January 6th . Now that was before there were the 1,200 . Now that was before there were the 1,200 convictions relating to January 6th . That was before there was the massive investigation by the Justice Department I think the biggest in the history of the Justice of activity .

Speaker 3 8:26

If you're jumping up and down for a pardon , you're worried you did something wrong . I think that's probably different from someone who's in the criminal justice system , maybe didn't do whatever they were charged and convicted of doing because we have an imperfect system , but want the benefits of a pardon which could be commuting the sentence and being liberated early . Now that person might say I want a pardon even though I didn't do it . Actually , I'm the best person for a pardon because I should be shown mercy because I didn't do it Right . So I think those are two different things . The case law there is sort of snippets from the civil war era . There's a snippet of case law where the Supreme court suggested that a pardon is an admission , an admission of guilt , but legally it doesn't really have make a difference , right's just more yeah , right , I think , logically you're right .

Speaker 3 9:26

Though if you just did something wrong and you're running around looking for a pardon , um , so that you don't get charged , most reasonable people would think you have some fear that what you did was criminal right .

Speaker 2 9:41

Uh , one person that comes to mind for me is Andy Biggs . Andy Biggs being an attorney , I'm fairly certain Andy Biggs is an attorney . It would seem to me that somebody like him would be fairly well versed on the law and might know some things about a pardon and when to ask and when not . That's , somebody who wasn't an attorney may or may not know . So it stood out to me when it was found that he had asked for a presidential pardon , because I felt like he probably knew better than some whether he needed one . Great point .

Speaker 3 10:30

I mean lawyers would know better on what kinds of things could lead to a criminal charge . Now .

Speaker 3 10:37

I think the response to that would be well , you know , it was a witch hunt , justice Department's out of control , all that kind of stuff . But this is again before there was any criminal investigation ongoing . And I think it's deeply , deeply troubling to this day that there were six members of the United States Congress who acted in any way other than with pure fidelity to the rule of law , democracy and the Constitution , which meant the peaceful transfer of power to Joe Biden , who was the duly elected president of the United States , based on the electoral college that is , based on votes cast by regular Americans . I mean , that's how we do it . So the fact that they asked for pardons , you know , suggests there's some kind of cancer within that caucus that , by all accounts , has not been ameliorated as we go into the November election to think from Merrick Garland's head .

Speaker 2 11:44

I want you to think from you . If you were the United States Attorney General , would the six people who asked for pardon be of special interest to you as the AG ?

Speaker 3 11:59

The AG , I think has not , having been in that position , I can only speak just speculatively has sort of political ramifications that has to come into play and he might say listen , members of Congress , there's an even higher bar to investigate them . That being said , we saw Senator Menendez convicted , you know , just in the last few months .

Speaker 3 12:25

So it happens , my perception of Merrick Garland was that he was overly cautious , and I say that because it took years to appoint Jack Smith who then acted quickly but not in time to deal with all of these appeals to the Supreme Court , which I think the Supreme Court majority has functioned in very disturbing ways that probably no one could have anticipated .

Speaker 3 13:00

But , if all of this had gotten off the ground earlier , we might not be in the position now where we're going into an election where a major party candidate has been charged , I think with a total of their peers , looking at the evidence and assessing it by the standard of beyond a reasonable doubt , believe that these allegations are true . We can get into the specifics of the opinions , but the Supreme Court has done a grave disservice to democracy by , I think , on very weak grounds , holding all of this up indefinitely .

Speaker 2 13:52

Absolutely would agree with that .

Legal Ambiguity and Interpretation in Practice

Speaker 2 13:55

Here's a question for you , because I've seen this a lot on social media and as a layperson it's something I can quickly jump on as well and say , hell yeah , information that he had about the crimes that Donald Trump had committed or things related to that , and then it kind of we didn't hear anything more about it . Now I understand there can be multiple reasons with as kooky as this case has been in the number of times that it's been delayed . But to the idea of I've seen people post that should be made public , then go ahead and make it public , we should know before the election . Now my thoughts immediately go to okay , well , yes , that would be cool and I'd like to see it too , but it also may be something that if he were to reveal it now , it somehow compromises his case or something he's going to do in the future . And then another part of him he says is there really anything else that we can learn about Donald Trump that would make us think he was any worse ?

Speaker 3 15:31

Well , I mean , there's a lot to unpack there and I think I have a different answer depending on which case we're talking about , if we're talking about the January 6th case versus talking about the Mar-a-Lago case .

Speaker 2 15:41

On the January 6th case . Talking about the Mar-a-Lago case .

Speaker 3 15:43

Talking about the Mar-a-Lago , oh Mar-a-Lago . On the January 6th case , I agree that we've seen the House Committee hearings and report . I mean I don't think there's anything really new in January 6th for the public , yet millions of people and it's a tight race are still going to vote for Donald Trump . On both cases there's a rule Federal Rule of Criminal Procedure 6E that makes it illegal to share grand jury information . So there might be certain categories of information that Jack Smith cannot make public without a court order . Secondly , in the Mar-a-Lago case and I think this is the big question that no one's talking about sort of just like the pardon discussion about the six members of Congress that there hasn't been real scrutiny on that . I don't think there's been enough discussion about the looming elephant in the room , which is what happened to the classified information that is in the empty 40 plus binders from Mar-a-Lago .

Speaker 2 16:41

Yes .

Speaker 3 16:41

Who wandered through , of the thousands of people , including people , foreigners , and there could have been , you know , soviets or Russian spies who saw these documents . How seriously did Donald Trump compromise national security ? I don't think there's any logical argument to even suggest beyond a doubt that he did compromise national security . That's why there are all these rules that limit who has access to this kind of information . So of course , there's that piece right , there's that piece of how much , and there's also statutes that bind the trial . You have to sort through what can even go before a jury . The government has to decide . Listen , if we use this evidence , it's going to be made public because there's , in fairness , the defendant has to see it . Is that going to create a chain reaction of other problems for the national security apparatus of the US government ? So I think it's really really thick and complicated . Thick and complicated .

Speaker 3 17:41

My last point on that has to do with the immunity decision , which is and I had a column that came out today in the bulwark that breaks down the decision and what the next steps are .

Speaker 3 17:54

But the bottom line is the court essentially directed the judges and the prosecutors and the , I guess , defense counsel to go through every single piece of information that would be put before the jury and put it through a multi-factored immunity test . Now , this is unprecedented . Criminal immunity for presidents is unprecedented . They didn't really give a roadmap for how to do it , but it's possible and , I think , likely , that the Justice Department will ask for what's called an evidentiary hearing before any trial . They might go to Judge Chuckin in the January 6th case and say can we have a hearing to go through all the evidence to see which can go before a jury and which cannot ? If that happens , jack , we're going to see it as a matter of the American public . We will see it , even though there's not a jury trial In Mar-a-Lago . Of course , eileen Cannon dismissed the entire indictment , so nothing's going to happen in that case and certainly any request , I think , by Jack Smith to make public evidence that bears on that case will be denied by Eileen Cannon . So we won't see it either way .

Speaker 2 19:04

And I think that's an important point , because I think a lot of people are confused about one statement that you just made . You said nothing's going to happen with the Mar-a-Lago case . So for all intents and purposes , that's over .

Speaker 3 19:23

Well , there'll be appeals , but for now it's been thrown out . It's been removed from the docket of the federal court in Florida . It is no longer active . It's deactivated and dead . Okay .

Speaker 3 19:37

Because she ruled that Jack Smith was unconstitutionally hired . So if he's unconstitutionally hired , the idea goes , everything he touches is also unconstitutional . That theory was laid out gratuitously by Justice Clarence Thomas in a concurring opinion in the immunity case and swiftly after that she tossed it out . I think it's wrong , most I think it's wrong . Most legal experts think it's wrong and it should be reversed on appeal . But until there's a reversal on appeal , or DOJ decides to go forward with the case without Jack Smith and just use regular DOJ prosecutors which they could do it's dead in the water right now . Prosecutors which they could do . It's dead in the water right now .

Speaker 2 20:24

Would it be fair to say that , when it comes to law , that in theory law is fairly black and white , but in practice it's not so black and white , at least when it comes to trials ?

Speaker 3 20:45

You know I appreciate the question so much because I think increasingly . I've been teaching law for a long time over 15 years now and increasingly students come in thinking the law is black and white and in part because we're so polarized , everyone's thinking in black and white .

Speaker 3 20:58

And thinking in black and white means this is my position . I'm going to give you a bunch of reasons why I'm right and you're wrong . So you've already decided what your conclusion is , which is I'm on this team , I'm on team red , I'm on team blue , and here's all the reasons why I'm right and you're wrong . Lawyers actually operate the exact opposite way . You look for the questions , lawyers look for the nuance , we look for the gray areas , we look for the squishy stuff , we look for the hard stuff and then we noodle our way through the arguments pro and con in each of the gray areas , and then we decide what our tentative conclusion is going to be that we're going to argue before the court and try to persuade the court one way or the other on behalf of our client . Judges aren't even supposed to look to see what the client wants , so it's exactly the opposite . And think about how the constitution is 235 years old with 4,000 something words . It's like a biblical text or a poem . There's so much in there that's undefined and vague . There's no way to do it in a black and white way . So I think the modern right-wing court and conservatives who celebrate the court promoting this idea of originalism or textualism . It's a myth . It's a lie . There's no way to read the Constitution in a black and white way . Everyone is going to have to interpret it . Judges judge is that judges are injecting their own personal , subjective , ideological and political views . For filling in the blanks .

Speaker 3 22:47

I'd rather say okay , if we don't know what it means , let's go back and look at why we have a constitution . What is the rule of law supposed to do ? What does democracy mean ? What does it mean to have freedom and liberty and equality ? Why did the revolutionaries fight and die to kick out King George III ? Why did they take the risk to themselves and their families to do something that radical when King George III had the army and Americans did not ? Because they didn't want to be bossed around by a king anymore . I think that's a more honest way of resolving the ambiguity . It gets vilified as oh living constitutionalists , progressives making stuff up . But no , actually it's much narrower and more adhering to the foundations of our charter document and our country's ideals than saying , oh well , I'm going to pretend this is black and white and then I'm going to just read it the way I want it to be Right that I have a problem with .

Speaker 2 23:54

Do you think the actual writing and construction of the Constitution and , as it relates to the ambiguity , do you think that was intentional in that ? Okay , we're going to establish this and this has got to be how it is for a long time , so we need to build in a little ambiguity . Or was it just kind of a slip-up ? Or they were limited by resources they had or time that they had to be able to make it more specific ? How do you think that played out ?

Speaker 3 24:33

I think it was the first , for a number of reasons . First of all , it was a negotiation right , it was a compromise with the ratifying states and there was a lot that was hashed out , but the original Constitution did not include any actual affirmative laid out rights for Americans . The Bill of Rights came a few years later , the First Amendment that says you have a right to free speech , freedom of association , free press , freedom of religion . All of that came later , right , the Fourth Amendment's ban on unreasonable searches and seizures . They were really mad , the framers , at King George III , who was running around with what was called general warrants and barging in people's houses and taking their stuff and snooping on them . But that came later and in part I think the idea was , if you take a monarch , a king who had all the power , because the monarch's power came from God , so you couldn't question the king . The idea was God picked that person , so that person decides who gets justice and who does not . Instead the framers said , OK , we're going to break it into a three-headed monster or a three-headed government . No one gets all of the power . And they really thought if they did it that way they wouldn't at least some of them thought they wouldn't need a bill of rights because each branch would just check the other branches and no one's rights would get trampled on . No one would . No president could arrest you for your political views , because there would be a Congress and courts to tamp down on the president .

Speaker 3 26:07

They swiftly decided to add some things , the Bill of Rights , but for sure they didn't expect it to answer all the questions . There are , in other parts of the world , detailed codes , documents setting forth at length specific rights and liberties . We don't have that . And there's also a provision of the Constitution , the Ninth Amendment , where it's been basically read out of the Constitution by the Supreme Court . But the court , the framers , basically said you know , anything that's not in here , that's not specific , goes to the states or to the people , suggesting that there are even some things government shouldn't be able to do . That's my view . So there's actual express language saying we know we can't cover everything . And honestly , Jack , I think there was a worry too that if we start listing a bunch of things , people are going to read too much into the silence , right ? So if you , have a list of 50 rights .

Speaker 3 27:03

The argument is like listen , there's this laundry list of rights . There's , there's not 51 . So you know , your right to be free of discrimination on the basis of your skin color was not a right in 1789 . If it didn't get in there . You can't have it Right , and they didn't want that either . They wanted to make sure that they weren't too specific , that it would cut off liberties down the line .

Speaker 2 27:30

You said something . You said the idea was that the monarch , the idea was that the power came from God , that God selected the monarch . The monarch Is that a reason we should be concerned when we hear Donald Trump or his followers suggesting that he is appointed by God , does that idea carry a deeper meaning for them that maybe not everybody else sees or even knows about ?

Speaker 3 28:06

Well , I've read that and I've heard that that there is this connection , this association between Donald Trump and God or Jesus , and I think it's reportedly been proselytized in some churches across America . I think it's very , very dangerous with churches across America . I think it's very , very dangerous . And the reason it's dangerous is because , with a monarch or a king who's , in theory , power comes from God , the idea was , if you slayed the existing king on the battlefield in England , god wanted you to be the new king and God put you in a position where you could kill the other king . That's the idea

Democracy Versus Monarchy

Speaker 3 28:47

.

Speaker 3 28:47

But the problem is and I don't know if people are listening or visual learners , a lot of my students are but imagine a triangle right In your mind . A king is at the tip of the top of the triangle . So there are winners and losers , people who get rights and don't get rights , based on what the king wants . And so , even if you like Donald Trump , if you change the structure to an unlimited monarchy or dictatorship , you might have a right today , but you've trashed the entire system and down the road , you or your children , your grandchildren , the new monarch might deny your family rights , and there's no checks and balances .

Speaker 3 29:29

Now a democracy . Imagine the same triangle , but you flip it upside down . So the tip of the triangle is at the bottom and at the top is where the power is . That's a democracy . So the long , flat top is where the power is , it's in the people and it trickles down to the president . And if the president isn't acting in ways that are consistent with the people's needs , the people's liberties , the people's rights , the people are in charge and the people fire the president .

Speaker 2 30:02

It's a really significant difference , Jack . And that's a very useful symbol or imagery to think of it that way , and it makes it very simple . So it's safe to say , then , that Donald Trump wants to flip the triangle upside down or turn it back the other way .

Speaker 3 30:22

He wants the point at the top exactly , and he's not going to live forever , right ? So once you do that and I think the supreme court is helping him do that , unfortunately , um , once you flip that triangle with the point being at the top , it's very hard to unflip it . I mean mean , right , it took a miraculous revolutionary war and some really smart people figuring things out and help from the French and all kinds of things to do it in the 1760s and 70s .

Speaker 2 31:00

Were Democrats asleep at the wheel throughout the years that the groundwork was being laid for the current Supreme Court . Was there an idea that said , oh , they won't go that far , so we weren't as worried about what the consequences may be ? Or how do you think we got in this position ?

Speaker 3 31:30

I do think the Democrats and others were asleep at the wheel and a lot of American people were asleep at the wheel and I think it's for a number of reasons and maybe they're good . I think there's a normalcy bias and there's an optimism and there's also a desire to not , you know , look behind the corner at something dark . I also think it's just we don't understand , as they get , how serious it is , because they've experienced it . We haven't . There are a couple of pivotal issues , but Mitch McConnell , the former Senate majority leader when he was Senate majority leader , has been spearheading this for and others for decades , understanding that if you , if you take over the Supreme Court , you take over the Constitution , because when the Supreme Court interprets that ambiguous language that acts like you're amending , it interprets that ambiguous language that acts like you're amending it .

Speaker 3 32:43

If , jack , you and I were going to do it , we'd have to get super majorities in both houses of Congress and in state legislators legislatures to actually amend it . But if you get five people on that court , you can do it with a flick of a pen and it's there until they retire , right , or or there's some other reason . You can add justices to a different configuration . Now , when Mitch McConnell was Senate majority leader , he got rid of the filibuster for Supreme Court nominees . So prior to Justice Gorsuch you had to have a 60% supermajority to getting any justice on the court because you needed those extra 10 votes from the other side and there weren't these big battles over Supreme Court justices . Most of them were put on with super majorities in the Senate . So he got rid of the filibuster . So the last three justices Gorsuch , kavanaugh and Coney Barrett were put on with a bare majority . And there are more Democrats in the country than Republicans because so many more , or at least represented in the Senate , because Democrats tend to populate cities more . So you think about that . A majority of Americans had no say through their Senate representatives on the last three justices who are now slashing and burning constitutional rights . That is inherently anti-democratic . But I'll say one more thing .

Speaker 3 34:05

As far as the Democrats , a key moment was when Barack Obama appointed Merrick Garland eight months before an election and Senator McConnell refused to even give Merrick Garland his choice , any hearings . I mean , that was the time for Barack Obama to fight back and Democrats to fight back and play hardball . And he didn't even make a speech , he did nothing , he rolled over and he let it happen . And then , of course , when Amy Coney Barrett and Justice Ginsburg died , you know she was pushed through in a matter of days before an election . So it was despicably hypocritical , blatantly political . And I you know you might have heard this through the reports just last week of over 100 women across the country who have lost their reproductive capabilities or reproductive organs are almost bled out in parking lots because the Supreme Court overruled Roe v Wade . This affects families , this affects lives , this affects human beings , this affects their children , these folks should have no business doing this , no business doing it .

Speaker 2 35:17

You may or may not know , I'm a former Republican .

Speaker 3 35:23

I don't know that , Jack , because I actually do check those things believe it or not , I'm happy to talk to everybody .

Speaker 2 35:30

Oh , gotcha , gotcha . Well , I went so hard the other direction , about midway through Donald Trump's term , about midway through Donald Trump's term , not just because of Donald Trump , but because of what I saw the Republican Party as a whole doing and allowing and supporting , and allowing to happen , and so I came to the blue side , right , and I've been fighting from this side .

Partisanship and Threats to Democracy

Speaker 2 36:06

If there was one thing that like a pebble in my shoe , though and you nailed it when you were talking about President Obama a lack of grit , a lack of willingness to roll up your sleeves and maybe get a tooth knocked out or an eye black and slug it out and fight for your position . That's something that just seems to be inherent to this party , although I will say I've seen more grit as of late , but with something like President Obama , why do you think he allowed that to happen ? Was it again one of those things where he just kind of the normalcy mindset ? It could never get that bad ?

Speaker 3 37:02

if we don't get it ? Well , I spoke to someone in the CNN green room who was in the Obama administration in the White House I won't name this person and I asked that question and the answer was we thought Hillary Clinton would win and we would just get the appointment done under a Clinton administration Interesting administration , I mean . I think what the last few years of politics have shown is that you have to expect the worst and you have to fight for your rights . And I'll give another example . The Democrats control the United States Senate in this moment .

Speaker 3 37:35

Where are the public hearings on the egregious conflicts of interest on the part of Justice Thomas and Justice Alito ? Why aren't we seeing on C-SPAN , on national television ? Why hasn't the press been forced and I'm part of the press , I'm with ABC News , they will cover these things because that's news . Why aren't Americans understanding how egregious these conflicts of interest are ? Justice Alito putting stop the seal signs on two of his homes , taking , you know , gifts from billionaires . Justice Thomas , who have business before the United States Supreme Court , who have an interest in a certain outcome in a case .

Speaker 3 38:13

Justice Thomas's wife calling Mark Meadows , donald Trump's chief of staff , on January 6th , urging him to have Vice President Pence not certify the election ? Why didn't Justice Thomas , didn't he recuse himself ? Why ? Why aren't we hearing from experts like myself or others who can tell us how important it is to have neutrality on the court , what the framers expected , how a code of conduct is crucial , that have enforcement mechanisms , how everyone else in the federal government has limits on gifts that they can take and disclosures they have to make and they have accountability . They can get fired , they can be fined , they can get sued , they can get criminally prosecuted . The Supreme Court is drunk with its own power . Right now they're sitting on top of our triangle Jack and that's very , very dangerous , but the Democrats are not doing anything about that . I don't understand it .

Speaker 2 39:09

I don't understand it either , which for me , as a non-lawyer type person , that's not too hard to figure that I don't understand it . But when I hear someone such as yourself say you don't understand it , it becomes even more troubling .

Speaker 3 39:27

I mean it's got to be political reasons why they're not doing it . But I think you throw the baby out with the bathwater when you do that . I mean , I think the stakes are so high right now that whoever's feathers are ruffled . Maybe it's worth it , but you know you have to be . I mean , and it's easy for me to say , I'm not in that position to make those choices , and maybe I would see differently if I had all the full panoply of information . So I just want to be clear at that . I just don't understand it , and people I talk to who are connected to the Senate haven't given me answers either . I don't understand it unless it's political , but I do think you know when the stormtroopers are at your back door to your point . I mean , you're a military person . You know you fight like hell to protect what really matters to you , and I cannot impress on people more that the upside down triangle with the point at the bottom . It matters to everyone . If anyone's rights go by the wayside , your rights are at stake too , and it doesn't matter if you're red or blue .

Speaker 3 40:24

The other analogy I like to use , or metaphor , is imagine a bridge . Right , there's a bridge over a river and the river is very treacherous , like if you fall off the bridge you're going to die , and there's sharp rocks at the bottom . The bridge is 235 years old and there are lots of cars that go back and forth across the bridge . Sometimes bridges collapse . We saw it in Baltimore , where I teach , in the last year .

Speaker 3 40:52

But imagine there are police officers on the bridge who conduct the traffic and decide who gets to go . There's no lights . Red light it's police officers . Sometimes they're officers in blue uniforms , sometimes they're officers in red uniforms . If it's the blue uniform day , they let the blue cars go first . If it's a red uniform day , you get let the red cars go first . Right , and so now the officers are mad at each other and the people in the cars are mad at each other because they think the whole thing is unfair and they want to win . Meanwhile , no one's paying any attention to the bridge . The water has been wearing away , the grouting , it's starting to crumble . No one's paying attention to the bridge . And this is my question , jack when the bridge goes down , who survives ? The red-jacketed people or the blue-jacketed people ?

Speaker 2 41:42

That's such a brilliant question and the way you describe it . I love how you use this imagery and I'm assuming you do that when you teach as well , which really you are teaching right now . The listeners are getting an opportunity to experience this because it takes a something that's kind of an abstract idea , if you don't explain it that way , and it puts it into something you kind of hold and feel and see and touch and it makes sense as far as the question inside of your mind . When you ask that question , which way does your gut go ?

Speaker 3 42:26

I mean , I think , no one goes , no one is saved , everybody goes down . Everybody goes down . That's the point . There's no winners and losers . Everybody's a loser and certainly , if you survive , it has nothing to do with whether you're in a blue car or a red car , or a red jacket or a blue jacket . And my guess is if there are survivors , you're going to swim over to whomever you can help to save them .

Speaker 2 42:45

You bet .

Speaker 3 42:46

That's democracy .

Speaker 2 42:48

Right . That's kind of been the idea that I've used when I think about the people who think and I'm referring to Republicans or people who are planning to vote for Donald Trump I think they have this idea that because they support him , because they would be voting for him , that once he was back in power , that he would make sure that whatever he did didn't harm them , because they're his people , and the understanding my background is in the field of psychology and the understanding I have about human nature and someone like Donald Trump is it's as simple as he's going to say what he needs to say to return to power and at that time , everyone beneath him becomes the equivalent of a peasant . I think you're right .

Speaker 2 43:49

So I think we'd all be swimming in the same river If there were a river under the bridge when it collapses . We're all treading water and Donald's hanging on to a rope up top .

Speaker 3 44:05

Right and the framers understood this . James Madison , in the Federalist Papers number 51 , which is basically it's kind of the backstory to the Constitution , we call them the Federalist Papers he said ambition needs to be made to counteract ambition and that if men were angels we would not need government . They understood the psychology , jack , that you're describing , and that psychology is that it's human nature that once you get power you will do what you can to entrench it and then you'll abuse it because it's hard to give it up . So the constitution puts constraints on that to push back against humankind's worst instincts . It's kind of built into our limbic system .

Speaker 3 44:48

And you have a unique perspective , having come from you know , supporting Trump or supporting the Republican Party , I mean so coming from you has much more credibility than coming from some other people . But certainly I think Donald Trump taps into but certainly I think Donald Trump taps into you know , a need for some solutions in people's lives and a hope that that can happen . I mean it's , you know , for a lot of Americans life is difficult , right , but if you look at the big picture , having the rights stripped of your neighbor isn't good for you or your kids , and we saw this . I mean , I'm not a historian . We saw it in Nazi Germany , right .

Speaker 2 45:32

Yes .

Speaker 3 45:32

That , as as Hitler became more powerful , people started turning on their closest . You know their closest friends and you know six million people were murdered . Right , I'm not saying that's going to happen in the United States , but it's in our you know my grandparents' generation , right , it's not that far afield in our history . And I think if you met anyone from Germany , I mean they're not irrational , unreasonable people . It's psychology , as you indicated . It's just psychology .

Speaker 2 46:03

It is . When I was through traveling the world and doing my thing as a single guy , I returned to the town that I grew up in , which is of the people who voted 78% of them voted for Donald Trump . This is a very deep red county . Now it's a rural county , so it's one of those and I know when I say this a lot of times , people kind of maybe roll their eyes or think , yeah , right , but when I tell you I know 5,000 of those 6,000 people I do Now , that doesn't mean I have coffee with them . I do Now , that doesn't mean I have coffee with them . That means I know their names , that means I see them often in grocery stores . And I mean 6,000 people when that includes kids as well . That's not that many adults really , when you think about it right , maybe 2,000 , 2,500 adults . And if you've lived someplace for decades and you get the town newspaper where every death , every marriage , it's really not a stretch to say you know about those families . You may have never spoken to them , but you know them .

Speaker 2 47:41

And , with that being said , when I made the switch to basically started attacking Donald Trump on social media and going at him hard and I'll get to kind of the background of why that is in a minute . I instantly was the black sheep of this county . There are people I've known for decades who won't give me the time of day now because it is here . This is kind of in the Bible Belt where I live . So you've got that aspect and then you've got the Trump aspect and they're all kind of woven together and if you pull away from one you're pulling away from both .

Speaker 2 48:47

Really wild thing to be able to look at people I've known and trusted and know who are otherwise intelligent people because I've seen decisions they've made throughout their lives , and to see them wrapped up in this so tightly that they are blinded to what the future holds for them .

Unchecked Presidential Power and Its Dangers

Speaker 2 49:04

If he comes back to power and everything , things like you've written in your book that again is coming out September 2nd . Those are things they would argue against because if they cut against the MAGA reality at all , then they have a justification for it . How do we from a legal perspective , how do we fight against that ? I assume one way you see to fight against that is to educate people , which is likely why you've written the books that you have . Do you encounter that in the classroom at all where you have differing positions and where you guys flesh this out and debate politically .

Speaker 3 50:02

Well , it's gotten to the point where even talking about the Constitution has become political and politicized . Your story is really tragic , but I think you know better than I . But it's happening across the countries and it's happening with families and it's breaking up marriages .

Speaker 3 50:24

I do think a big piece of it is education and my book is on the pardon power . The president can pardon any crimes . Right and think about crimes . So say you're a Trump supporter . Say Kamala Harris gets in power and she knows that she can . I mean , this is all hypothetical . I have every confidence this will never happen with her . But she knows she can kind of do what she needs to do to stay in power .

Speaker 3 51:04

If that means assassinating political rivals , if that means using the IRS to audit donors to the other party , if that means spying on people , blackmail , bribery , all of that . Now the Supreme Court has said there's no oversight . There's no constitutional or criminal oversight . Now , if you're using official power , you need to get someone to do it for you . Because , say , you're going to assassinate somebody , you pull out your private weapon and you kill them . That would be private power and the court said you could still be prosecuted .

Speaker 3 51:40

So you're not going to be dumb enough if you're president to use your private pistol . You're going to want to get somebody in the military to do it for you , an ATF agent or somebody in the FBI . They're going to say , listen , I don't want to do that . I don't want to kill a political rival . That could get me in big trouble and the president can now say well , I'll pardon you , so if you put the part in with immunity , you now have converting the massive power over law enforcement , military spyware into a potential criminal enterprise in the White House to stay in power . It's breathtaking .

Speaker 3 52:17

So , for people that are well , I'm on Team Trump , or either and I say Team Trump because that's the one that is , I think , pretty invested in flipping the triangle Trump won't live forever , do you ? You know , I don't want that power in anybody's hands . I don't want it in Kamala Harris's hands . I don't want it in anybody's hands .

Speaker 2 52:36

No , no , not at all . Do you coming back to and this is we have to speculate because we can't get inside of their head ? Do you think there's any significant portion of his following and at this point I consider his following people who are actually going to vote for him ? Because in the county that I live in , I would say at least 30% to 40% , because I've seen the stats on how many registered voters actually show up to vote . 30% to 40% of the people I see with MAGA stickers or flags on their trucks or signs in their yard don't even vote . They're just caught up in the excitement and the cold and this power thing .

Speaker 2 53:28

So here's where I'm going with this . You were talking about how a president could become so emboldened with this new ruling from the Supreme Court that you can do what you want . You've got immunity , just be careful about how you do it , but you can do what you want . You've got immunity , just be careful about how you do it , but you can do what you want . From my perspective , I see that also emboldening his supporters , because they are so wrapped up in this idea that they are just an extension of Donald Trump . They are just an extension of Donald Trump that they can almost do anything they want to do too , because when you've got the guy coming out and saying if he's elected , he's going to pardon all of the January 6th folks in jail , that sends a very dangerous message . Am I wrong about that ?

Speaker 3 54:22

Right , I mean you are correct . There was actually a survey that was done over the summer , just this past summer , on pardons . And you know something in the 71 to 78% of Americans , on every single question relating to the pardon , did not like to see the pardon power abused . They did not want presidents to have the power to self-pardon . They did not want the January 6th insurrectionists to pardon , including majorities of Republicans . And one of the reasons because in the follow-up to these people there are a couple thousand , maybe 1,500 , I can't remember that were surveyed when asked well , why don't you want the January 6th insurrection as pardoned ? That's what they said . They said it's just going to invite people , it's going to motivate people to use violence around elections and around politics . That's not a world . I think I would guess , if you sat down , if your friends would talk to you again over coffee , on a bagel they would want for their kids or their grandchildren .

Speaker 2 55:28

Right .

Speaker 3 55:30

I really don't think anybody wants that .

Speaker 2 55:32

No , I don't think so either . And is it safe for me to make this assumption that , while it's always been true that a president can pardon whoever they choose to pardon , with this new ruling it's also basically true that a president can imprison anybody that they would choose to , that there would be a path to saying that guy finds some charge .

Speaker 3 56:06

Well , I think , a couple reasons . I think if someone is unconstitutional or illegally imprisoned , they could just appeal that action right . The bigger problem is the secret stuff . So say , a president , on your point , decides . There are just certain reporters , there are certain thought leaders , there are certain professors , there are certain political figures , agitators . I just don't like them Right Now . If the president were to have ordered them picked up and renditioned to a secret prison in some other part of the world with no trace of where they went , yes and said this was a matter of national security .

Speaker 3 56:58

Um , what the supreme court held is , when the president uses official acts , that information can't be used in a criminal trial against the president . So it's also almost enhanced the secrecy part , right . So we might not I mean we already might not know , but the president would be able to do that , knowing that , okay , if I get caught , if this person gets the word out , I'm untouchable . I cannot have anything happen to me and the action that I took now cannot be used in a criminal trial against me , even if that were to ever go forward , because it was my official act .

Speaker 2 57:45

Yes .

Speaker 3 57:46

So there are multiple layers of insulation that embolden or empower presidents now to do the worst things ever . And now let me just say , jack , what I hear when I have this conversation with people and I don't ask people's politics , so I don't know if they're Democrats , republicans , moderates , whatever . It kind of gets back to your question about Democrats and whether they've been asleep at the wheel I hear well , that will never happen . You know we've gone through 235 years Presidents . You know we've had , we had Nixon , we had some problems , but basically they're ethical , basically they follow the rule of law . I mean , I think that's a dangerous way of thinking , because if you don't get your cancer screening and it's at stage four , it's kind of too late . Yes .

Speaker 3 58:33

And it's pretty important to make sure you don't get to stage four . If you can help it and I think democracy is like your body it deserves the best care we can give it .

Speaker 2 58:46

Right , I'm so glad you brought up the secret aspect of that . I've spent some time with a gentleman who worked at a CIA black site . Now , for reasons that you will clearly understand , he doesn't want to come on and do a podcast with me , right , but through our conversations I got what I call perpetual goosebumps in my spine . That has never left , because I understand what can be done if there are people in power who want it bad enough .

Consequences and Values in Law

Speaker 2 59:44

During the Bush administration , as I understand it , there were all kinds of legal reasons not to be able to do some of the things they were doing . But , as we come back to , the law is not black and white . They were able to massage things out enough to where they could go ahead and do it . They could go ahead and do it , and in a sense , I think that going ahead and doing it . Part of that was just we'll deal with the blowback later , right , maybe there will be consequences , but we need to do this now , so we're going to do it . Donald Trump could do that . Donald Trump would have more corrupt people around him , I'm guessing , than what President Bush had . So am I off base ?

Speaker 3 1:00:34

No , I mean , I think the word that jumps out at what you said is consequences and the fact that you have a background in psychology . You understand this . And let me just explain something else about the law . The law is less about what it says . It's more about the consequences for not complying with it . And let me just give an example from everyone's life . If you drive , and you're driving down the street on a quiet street , and it says 35 miles an hour and you go 45 , you'll keep going 45 until there's a camera hiding in the bushes and you get a ticket for 75 bucks . Then you'll go 35 . And usually , oftentimes , people will only go 35 until they pass the camera and then they speed up again . And my point is it's not the sign , it's not the law , the 35 miles an hour law that slows a lot of people down or everyone down . It's the consequences for violating it that slow people down .

Speaker 2 1:01:43

So to such a profound point .

Speaker 3 1:01:49

Yeah , I mean to your point . Okay , so the person you were talking with , they at least thought okay , there could be consequences , we'll deal with them . Right . What the Supreme Court has now done , and you couple it with the pardon power , where the president could just pardon people for committing crimes on his behalf , you take the consequence out of the equation completely .

Speaker 3 1:02:05

Yes , imagine if there were no tickets for speeding or running red lights in your city or your town . Within a few days it would be chaos , it would be serious accidents , there would be a lot of damage done to property , there'd be a lot of injuries and maybe even deaths , because people would say I can do whatever I feel like it and they would get lazy , damage done to property , there'd be a lot of injuries and maybe even deaths , because people would say I can do whatever I feel like it and they would get lazy and they would start blowing through everything . And this is the way it is in other parts of the world You've traveled . There are parts of the world where no traffic laws are enforced at all . People drive up on the sidewalks , they do whatever . They turn around in a one-way street , they do whatever they want . It's the consequences that are the more important part of the law . Without the consequences , you might as well get your Sharpie out and cross the law off altogether .

Speaker 2 1:02:59

It's such a brilliant point . I'm glad you brought that up , because there seems to be this obsessiveness in our country . We are always talking about there need to be laws passed for this or they need to pass a law for that , and , to your point , I think we get so focused on the establishment of the law but hardly anybody ever talks about okay , but what are the consequences going to be for that law ? Because if there really aren't going to be any meaningful consequences , then we may not be that much better off with the law than without it .

Speaker 3 1:03:38

Yeah , I mean , I have four daughters , right , and so anyone who has children or been around children know a four-year-old , knows that really well . You can tell the four-year-old no eating in front of the television , and the day you sit down with your pizza in front of the Super Bowl , the rule is gone . Um , they understand it too . Like if you want to train a dog , you've got to be extremely consistent . If you , if you allow them to , the positive feedback loop for the bad behavior is what you're going to get is more bad behavior .

Speaker 3 1:04:16

And so , um , there's so much jack about the law , and this is the point of my books . That's why , back to the beginning of the show they're all and why how to read the Constitution and why what you need to know about voting and why how to think like a lawyer and why how the pardon system works and why . And the idea is to empower people with their own common sense to make their own judgments . Don't listen to me . People with their own common sense to make their own judgments , don't listen to me . We all have in our common sense , in our life experience , the answers to these problems . It's just they're usually explained in such complicated ways or they're distorted . The law is really about incentives and disincentives , motivations and lack of motivation , and it's about compromise .

Speaker 3 1:05:02

In my book , how to Think Like a Lawyer and why , I say one of the elements of thinking like a lawyer is you've got to realize you're not going to get everything you want in a negotiation . The judge might not listen to you , they might not agree with you , your client might lose , even if they deserve to win right . That's , I think , when you said okay , how do you get people back to the center . I think we're such mired in polarized black and white win and lose thinking like the cars on the bridge .

Speaker 3 1:05:31

But that's not how life is . It's mucky , it's murky . You've got to get a surgery . There's pros , there's cons . You take the job in Tulsa , oklahoma there's pros , there are cons . You're married , you get a divorce . All these things , the hard questions , don't have clear answers and you've got to give stuff up and sometimes you don't get to know what's on the other side . And that's where I say in that third book how to Think Like a Lawyer . That's where you go back to your value system and I encourage people in the book there are worksheets in the book identify what's that stuff that's really important to you and that's what you use to make your decisions . And I'll bet our value systems Jack the people that you used to be such good friends with they're probably aligned .

Speaker 3 1:06:14

I'll tell you one more story I took my kids to Disney World a couple of years ago and we were in the Uber going back from the magic kingdom to the , to the airport , and the Uber driver was wanting to talk politics and could tell within a couple minutes I was not a MAGA supporter by the time it was probably a 45 minute drive and I'll just tell you we got out of the , out of the Uber . He gave me his number . He said please text me . I want to make sure you're safe when you get back home and if you ever come back down to Orlando , I actually do scuba diving lessons and I'd love to treat you . You wouldn't have to pay . And he said lady , you know I was .

Speaker 3 1:06:56

When I figured out where you were , what your politics of mind were different . I wanted to pull over and let you out of the cab and my kids said I have four daughters . They said mom , we were scared of that man . What happened ? And I'll tell you . I shifted the conversation to values . I started talking about values . Who do you trust in your life ? Who do you ? If you got it ? You know usually it's religious leaders , your best friend , your family , a teacher , an advisor . You know you're not going to leave your kids with somebody that a lot of people are voting for , sure , and then we kind of got to the agreement Listen , politicians aren't on the top of the list for people that share your values , that you really trust in your personal life . Right .

Speaker 3 1:07:43

I think the same set of criteria should come to your , with you in the ballot box , and I guess this might be partly why you flipped . You said you moved away from the Trump ticket . We all have our internal value system and that's the light light in the darkness , that's our compass and that will also keep us , that'll bring us together and that cuts through all the politics and the lies .

Speaker 2 1:08:07

Right , you're so right . I've always been value driven . But it's also caused its share of problems in life , because not everybody you match up with in a co-worker or some other relationship , not everybody is so committed to their values . In other words , their values are pretty flexible , right . Right , when you stick to your values and you won't conform to the group thing , sometimes you're just going to be the odd man or woman out , but that's OK because , as you say , when you know you're being true to your values , the good feeling that comes from sticking to those and letting that guide you override , that being the black sheep factor . How can people find you if they want to get in touch with you ?

Speaker 3 1:09:14

Yeah , well , thank you . So my website , kimwhaleycom W-E-H-L-E has links to . I have a twice weekly newsletter that breaks down legal questions into a Q and a format for non-lawyers and lawyers . Read it as well . So if you kind of want to understand , like you're saying I , this is confusing to me . Most of this . A lot of stuff I cover there is on Substack , uh . I also tweet at Kim Whaley , k I M again W W-E-H-L-E and Instagram and I'll be on a number of news shows and podcasts in the next coming weeks around the pardon , power and the book . In particular . I'm on ABC News Live when there's legal news , sometimes on CNN , but kimwhaleycom has everything .

Speaker 2 1:10:01

Fantastic Again , september 2nd correct .

Speaker 3 1:10:05

September 2nd pardon power . September 2nd Pardon Power how the Pardon System Works and why .

Speaker 2 1:10:09

If you were going to say one thing to somebody , if they would come up and say Kim , I'm thinking about buying your book , what's one reason you would give me as to why I should , or what benefit would I get from your book ?

Speaker 3 1:10:23

Well , it has a lot of interesting stories it actually talks about . It begins with the Mormon pardons for polygamy and for trying to secede from the Union during the Civil War . It's absolutely fascinating in my mind . And then it walks through the history of presidential pardons . It goes back to the Bible , the Code of Hammurabi , talks about common law , England , and then it brings us to the present day and it does the NY .

Speaker 3 1:10:48

It talks about why do we have even a pardon power ? Why did it exist at the Roman times , when Punctious Pilate pardoned Barabbas for murder and let Jesus be crucified ? It goes back to our foundations and asks do we really need it ? Is it working or is it doing more damage than good ? So I think it's both entertaining and also you'll learn a lot about the constitution and your rights .

Empowering Knowledge for Informed Voting

Speaker 3 1:11:13

And it ends with some suggestions on how to engage in this and if you want to see change , what can happen ? And I think , Jack , what's really empowering ? It's empowering to be on a team right , I'm on team red , I'm on team blue . That's very empowering . But even more empowering is to have tools to make your own decisions and come to your own conclusions .

Speaker 3 1:11:34

And I think that that's what I try to do in my book . I think knowledge is power .

Speaker 2 1:11:39

Without question . It sounds like to me that it will give somebody an even richer foundation for being an informed voter and being able to think through what the consequences would be of voting for this person as opposed to that person . As it relates to pardons and the US Constitution , I think you've just , in this podcast episode , you've brought up so many things for people to think about , things for me to think about that I didn't know , so I've come away from this episode with a richer knowledge base than I had an hour ago , and I appreciate that .

Speaker 3 1:12:23

Well , it's been great to be with you and I'm grateful for the invitation . I've enjoyed talking to you . We'll see you next time .