Advisory Opinions - Political Retribution? | Interview: Saikrishna Prakash

Episode Date: August 26, 2025

Sarah Isgur and David French analyze the legalities of the FBI’s raid on former National Security Adviser John Bolton’s home. Then, an interview with Saikrishna Bangalore Prakash on his forthcoming book, The Presidential Pardon: The Short Clause with a Long, Troubled History. The Agenda:—What could have triggered an FBI raid on John Bolton?—Is Chris Christie next on the investigation list?—Mortgage fraud investigations—More and more norm violations—The double-edged sword of pardons Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. We're going to talk about the weaponization of the Department of Justice. What is and what isn't weaponization? in this week's news. And I got David an early Christmas present that you'll hear at the back end of the show. It's relevant.

It's a new book. You can pre-order it from a professor at the University of Virginia. I'm not even going to ruin this. And on our next episode, we're going to talk about flag burning and the latest interim docket order from the Supreme Court, y'all, it was 414.

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code advisory to save 10% on your first order. That's typelaw.com. All right, David, we have to be efficient today. There is a lot to get through. I want to start with the execution of two search warrants on John Bolton, former national security advisor to Donald Trump. And by the way, former Assistant Attorney General of the Office of Legislative Affairs in the Department of Justice, fun fact, he was there during the Reagan administration. This was like, you know. Really? I had forgotten that. Bork era. Yeah, he's been here a long time, David, coming in and out. So one search warrant was executed on his home and one was executed on his office. Now, just to start, that means that two different federal judges

signed off on these warrants agreeing with the government that they had probable cause that there would be evidence of a crime in these places, two different judges because they were in two different districts, right? The District of Columbia and the District of Maryland. Neither place, though, known for having a ton of, like, Trump-fanatic district judges. And while I know it's like, oh, a prosecutor can get a search warrant for anything, they can get an indictment on a ham sandwich. Yeah, but there does have to be something. You know what I mean? Like, a judge is going to look pretty closely at a search warrant for the former national security

advisor. We also have reporting from the New York Times that this is actually not about John Bolton's book where there had been an investigation opened during the first Trump administration. It was dropped during the Biden administration. You have some pretty harsh quotes from Judge Royce Lamberth, again, by no means known as. some Trump sycophant who said that Bolton was gambling with America's national security when he wrote that book without going through the proper pre-publication review, et cetera. But the New York Times reporting that this investigation, whatever it is, we don't know the details, was brought about by some intelligence that the CIA, that John Radcliffe, the director of the CIA, had gotten

wind of through foreign intelligence gathering, that implicated John Bolton an American citizen and he pass that off to the Department of Justice and specifically, I think, Cash Patel at the FBI. David, this reeks of political retribution. And yet, as I just kind of laid out, there's a lot of reasons to at least, I think, for me, like, hold on to my horses a little bit. I couldn't agree more. I mean, the way I would put it is the Trump administration does not get the benefit of the doubt. Federal judges do. It's the way I would put it. So, So if this was something where the Trump administration acting under its own initiative only without any judicial review at all was doing this, then I would be right there saying 100% political retribution or I would be saying overwhelming evidence of political retribution. In this case, we have judges who've signed off on the warrants and that gives me pause.

Now, so I would put it this way. As I said, there's no benefit of doubt to the administration. At the same time, it is very important to wait until we see exactly what the facts are here. Because, look, we have been saying from day one, going all the way back to the Mar-a-Lago raid, that nobody is above the law, that you do not evaluate these things simply on the basis of Democratic-President, rating Republican former office holder or Republican raiding political opponent, even if they're a fellow Republican, that's not the end of the analysis. It is the kind of thing that makes you raise your eyebrows and makes you say, okay, they really better have dotted their eyes and crossed their teas. But as somebody who was saying that the Mar-a-Lago raid was justified, that there was actual

real evidence there of crimes and there was real evidence of obstruction, then to turn around and say, automatically, without having seen any of the evidence at all, that this is an illegitimate raid, what I honestly would think would put me kind of in the position of MAGA watching Mar-a-Lago. In other words, it's automatically presumed to be illegitimate. It's automatically presumed to be lawfare. And so let's wait and see. You know, one thing that I did appreciate back in the Mar-a-Lago raid era was how relatively quickly we saw some of the underlying allegations and some of the

underlying evidence that was released in the public sphere. We should see that in the public square. Strong disagree here, David. So first of all, let me just give an example of how this could come about. Again, we have no information. I have no personal reporting or public reporting that I'm basing this on. Just an example of how this could go. The CIA is listening to a foreign source who they are surveilling and they hear a conversation between that foreign source and either directly with John Bolton or someone who says, I just got off the phone with John Bolton type thing. And let's assume it's the latter, right? So it's two foreign people talking to each other. And the one says to the other, hey, I just got off the phone with John Bolton. You know,

ha, ha, ha. He was trashing Trump and said he has the documents to prove what Trump just said about Putin is totally a lie. What documents? Say what now? Are the, huh? Huh? That sounds classified? That would be an example where then the CIA would call the FBI and say, this is evidence that an American citizen has retained classified information in violation of the law. You may want to go find those classified documents because they might just be sitting in his home or his office. David, I assume you would agree in this hypothetical. That's legitimate. I would say that that is legitimate. When I said we need to see the evidence, one of the problems is, I was about to qualify unless you have some extreme national security reason

not to. But that raises some real issues here of, and in a normal administration, you do not have a president saying, and people around him, I'm going to get this guy, I'm going to get this guy. We need to get this guy. We need to get this guy. And then you get the guy. And then you say, trust us. Trust us. We did this all the right way. No, no, no. So there are some tradeoffs here that if you're going to initiate a law enforcement proceeding against a public official who's been a named pre-named as a target, okay, then I think there's going to be some heightened obligations here. There are consequences to your public targeting of people. This is why Jim Comey was fired was for publicly talking about and confirming an investigation

and then talking about the wrongdoing of the subject of that investigation when they weren't bringing charges. I hew very, very strongly to this Department of Justice norm. I think it's very inappropriate, actually, that anyone from the Department of Justice, though the president, the vice president,

and the attorney general have all confirmed an investigation into John Bolton since the execution of the search warrant. Again, that's what Jim Comey was fired for, according to the president's own, you know, memo that relied on Rod Rosenstein's memo about this. The Department of Justice speaks through its charging documents and then through its presentations at trial. But, you know, we're talking

way pre-trial at this point. If you don't have enough to bring charges, you don't confirm jack anything. Even if you execute a search warrant, it would be inappropriate to say anything about that because you could be getting evidence of a crime having nothing to do with that person, right? Someone broke into their house and stashed a gun in their house, right? So you can just say we confirm the execution of that search warrant, like we're not going to be ostriches with our heads in the sand, but you don't confirm that you're investigating this person for a crime because you, at this point at least, do not have enough to charge that person with a crime. When you do, file the indictment, and we've talked about speaking indictments, David, before, where you lay out, you know,

not just what the charge is, which would be sufficient for bringing an indictment, but a story, if you will, narrative that you intend to present at trial. I've got no problem with DOJ doing that. Well, I mean, I might in some circumstances, but I'm hard-pressed in this moment to think of when I would. But you speak when you have enough to bring charges. And so in that sense, David, I disagree strongly that they need to come out and justify the search or show us what the evidence is. Either they have enough to bring charges, in which case they'll show us everything, or they don't, which should cast a real negative light on the search warrants themselves then. So I would be in violent agreement with you except that I cannot abide this idea that rules

and procedures, I can disregard them completely, totally and utterly when it is in my political favor. And then when those same norms, rules, and procedures that I just took a dump on suddenly start to help me then while norms rules and procedures apply. No, no, no, no. When you have taken a dump on the norms rules and procedures, you don't then get to shield yourself with them. I'm sorry. You just, that is, to me, at that point, you've lost all trust, all credibility. And so now you've got to have something. You've got to have something. Or it's very, very fair for people to presume. Now, we're not presuming, but it's very fair for people to presume that what we're dealing with is just bad faith targeting because you're wielding the norms and procedures in this process in bad faith.

Okay, put a pause on this for a second because I want to bring in some other names to this conversation, California Senator Adam Schiff, New York Attorney General Tish James, and Federal Reserve Governor Cook, all of whom the Department of Justice has also confirmed that they are investigating for mortgage fraud. I got to say, David, this is a even better example. As I said, I thought it was inappropriate that the vice president, for instance, was out there confirming literally, quote, we are investigating John Bolton. Like, that's not what we do. But okay, let me read you a letter that Ed Martin sent to the chairman of the Federal Reserve. Ed Martin is the special prosecutor assigned to the weaponization task force who has confirmed these

investigations into mortgage fraud? It's weird because I thought the weaponization task force was to end weaponization, but it turns out, no, no, it's to weaponize. So, okay, this is the letter. I encourage you to remove Ms. Cook from your board. Do it today before it is too late. after all, no American thinks it is appropriate that she serve during this time with a cloud hanging over her. Let's just break that down, David. He's saying that the Department of Justice, he's confirming they've opened an investigation into someone. They do not have enough evidence to bring charges against that person yet, but that that should be enough to remove someone from their job. Do it today before it's too late, by the way. Don't even know what that threat is. But

no American thinks it is appropriate that she served during this time with a cloud that I created that I don't have enough to bring charges for hanging over her head. That would be inappropriate if they had brought charges, David, to send a letter saying, like, fire this person because we've indicted them before they've been convicted of anything. I'm not saying they shouldn't be removed once they've been indicted. They probably should be. But it's not appropriate for the prosecutor in the case to say that. But it's not even in the galaxy. when you have broken DOJ rules by confirming an investigation before an indictment to then say that that very cloud that you weren't supposed to create should be the reason that they're taken

off the board. And David, just to, it's worth mentioning what the allegations are. So all three of these people have multiple homes. And the allegation, and again, it's not even an indictment allegation at this point, it's a press allegation, is that they, on a mortgage application, listed multiple homes as their primary residence. And you get a break on your mortgage about half a percent for your primary residence because the bank assumes you're going to like really try hard to pay off your loan on your primary residence because that's where you're living. A second home, maybe you don't care as much, it's a little bit of a riskier loan to give, hence the slight break. So, you know,

the allegation would go that the bank lost out on, you know, $30 to $40,000 in a mortgage loan on a secondary home over the course of five, 10 years, depending on the home's worth and everything like that. This is a very unusual charge that, again, hasn't been brought. It would be an incredibly unusual charge for the Department of Justice to bring as the primary charge, as the top charge on an indictment. Now, there's an entire section of the Department of Justice dedicated

two mortgage fraud scams. We're talking nationwide, you know, to call them white collar crimes, I think gives a bad name to white collar crimes. But that, you know, that's the section that it's in, certainly white collar fraud. So yes, DOJ does mortgage fraud all the freaking time. It's some bread and butter stuff. But not individual mortgage fraud where there's no loss to the bank, i.e. the value of the underlying asset isn't the fraud. if you will. And they have lived at both of these homes. So it's not like they have 20 homes on the books, none of which they live at. They're all rental properties and they're getting this mortgage break on some, again, something approaching a larger size scam. You will see this type of charge

as an underlying charge. And again, if you go back just to the Biden administration, you don't have to go back far. Marilyn Mosby, who was the Baltimore State Attorney, would normally be called the District Attorney of Baltimore. Remember, she was indicted for mortgage fraud, and it was a weird one, David. She was convicted of this. She claimed that her husband had given her a gift of $5,000 for the down payment on a condo on Longboat Key, and it turned out that she had written him a check for $5,000 so that he could write her a check for $5,000 to get this break on the mortgage. Sounds pretty close to primary residence mortgage fraud. right? It's a no loss, small ball fraud on the bank. But that's not why they indicted her.

They indicted her for COVID fraud, that she had lied, and she was also convicted of two counts of perjury for this. She had lied on an application saying that she had experienced financial hardship and needed this loan money from the COVID loan grant that Maryland had gotten to be able to have the money to go do all of this other stuff. So then, while they're looking at all of her residential dealings, they see this mortgage fraud. Sure, you bring that with it. But what I'm saying, David, is very unusual to have that as the top charge. Now, why do I keep saying that? Because that's exactly what they did in New York to Donald Trump. He was convicted in that criminal trial of falsification of business records that had never been used as a top charge in New York.

Yes, they could point to many cases where they attacked that on because there were some bigger charge at the top and they had found that in the course of their investigation. but to have it as the top charge had never been done before. So it's not just like that it's political retribution. It's like this tit for tat that, frankly, we said we didn't like the New York charges. We said it was bad to bring never before theory of the case with never before used top charge. And that's exactly what MAGA is going to say justifies this. And that's why it's part of the weaponization task force investigation. I don't like it, David.

but there is a unilateral disarmament problem that the right is going to argue. Well, there's a couple of differences here. One, in New York, they brought a charge that contained evidence that they proved before a jury. I do not think they should have brought the charge. Here, you don't even have the charge. You have a confirmation of an investigation into a particular charge, followed by threats that are. So it's not exactly. it's not exactly tit for tad. It feels a little escalatory in the sense that we're now going to

try to preemptively impose sort of a nice little, nice little career you've got there. You need to lose it or will charge you kind of overtones to it. But yeah, I mean, the New York case should not have been brought against Trump. You know, if there's one thing where you're looking back at the history of the interlude between Trump's two terms, that New York case was such a poisonous element of the national discourse because, number one, it shouldn't have been brought. That's the primary problem. Number two, once it was brought and all of, you know, many quarters, you saw this in people who are in red America, blue America, purple America, were like, what are you doing?

too far, then that colored everything that came after. So the Jack Smith prosecutions, which were very, very, very different from the New York prosecution, entirely different sets of evidence. All of that is just sort of seen and swept up in this sort of, hey, look what they're doing to him when they were completely separate things. And so, yeah, that New York prosecution, a bunch of us who were jumping up and down at the time, I think should be feeling somewhat vindicated. However, the question I have, Sarah, is I don't think they needed this New York prosecution to do this. The level of retribution that has been sort of unleashed, that has been threatened, I don't think that whether the New York prosecution is there or not there, I don't

think it makes a dime's bit of difference. I think the grievance for Trump goes back to the fact that he wasn't granted a second, immediate second term. Agree to disagree on that. But I also want to, read this truth from Donald Trump that he sent out on Sunday evening. I just watched Sloppy Chris Christie be interviewed on a ratings challenge news show. It talks about John Carl's hair. Okay. Can anyone believe anything that sloppy Chris says? Do you remember the way he lied about the dangerous and deadly closure of the George Washington Bridge in order to stay out of prison at the same time sacrificing people who worked for him, including a young mother who spent years trying to fight off the vicious charges against her. Chris refused to take responsibility

for these criminal acts. For the sake of justice, perhaps we should start looking at that very situation again. No one is above the law, exclamation point. Thank you for your attention to this matter. President, DJT. A few things, David. One, I was on with Chris. And I was not mentioned it was like me, John, and Chris. And I'm the only one who doesn't make the truth thing. I'm hurt. A couple things to note. One, no one is above the law. Is the two? tweet that FBI director Cash Patel put out within minutes of the execution of the search warrants on John Bolton's home in office. So in case it wasn't clear enough, the perhaps we should start looking at that various situation again, the no one is above the law as a callback to that

Cash Patel tweet. And of course, Donald Trump has said that in the past as well. What's weird, though, David, is if you go back and watch the interview, Governor Christie said a few things. one, he defended the John Bolton search warrants, basically saying what we said on this podcast. Second, he said he doesn't believe that Donald Trump ever did anything weird or creepy with Jeffrey Epstein. Like, I don't know what he's upset about from the interview. It's very strange. But the idea that you go on TV and criticize the president, and then he basically signals to his Department of Justice to go open a criminal investigation to this person. And It's not leading the news because we've already grown accustomed to it and we're only six

months in, eight months, whatever it is, into this administration. I just wanted to mention that, David. It just makes me sad that it's not news. It's not even news to me, really. But boy, it should be. Yeah. I mean, you know, when we're looking at this and we're looking at the threats of criminal prosecution from a president, you're looking at triumphant tweets from the FBI director, right,

right in the aftermath of the search warrant being executed. None of this stuff is normal. None of this should be acceptable to anyone. And yet, you know, it's really fascinating the way in which the multiplicity, the sheer volume of transgressions is it's sort of its own protection, that you just move on from one thing to the next thing to, and then after a while it just becomes a haze. just you feel, people feel overwhelmed, they feel helpless, they check out.

It's also probably worth noting, by the way, that the Attorney General of Texas, Ken Paxton, who we're not going to run through all the things Ken Paxton has been alleged to have done. He was impeached in the state of Texas, but acquitted at his trial in the Texas Senate. He has three residences. And his wife has basically said they have claimed all three is primary residences. It's impossible for two people to live at three places, but you don't hear DOJ doing anything about that. And I think that that's evidence to your point, David. This was always about a very specific type of retribution, because if you were a more normal administration who still wanted to go after their political enemies, which very normal, right? That's tale as

oldest time. You would at least include the very obvious person on your own team, sacrifice them, and say, see, it's not political. We're going after everyone for the this now because we think these poor, poor banks just aren't getting enough money from their mortgage deals, but they're not even putting on that fig leaf. And maybe I'll be proven wrong about that. Maybe they'll indict Ken Paxton. I think the only way they indict Ken Paxton is if Trump decides he can't win the general election in Texas. Which he's going to get Roy Moore, by the way, not to like go into politics. Roy Moore, remember, was the incredibly flawed candidate in Alabama who lost to a Democrat, the first Democrat elected in the state in

30 plus years. This isn't just based on polling. This is based as a Texan and working as a political operative in the state for many decades. He's going to get Roy Moore and hard if he's the Republican nominee in the state of Texas. And what a shockwave that will send through the country if a Democrat gets elected. You know, Cornyn is catching up with him in the primary at this point. But yeah, I mean, Donald Trump has a choice to try to appoint him to something, though I am told by reliable sources that Paxton will only accept Attorney General of the United States as a way of getting out of that Senate race because he knows he has all this leverage right now. Or two, sure, you know, Trump could indict him. That would be a heck of a carrot or stick option.

David, I have a question for you, but hold on. Before we do that, time for a quick break. Squarespace is the all-in-one platform for building a professional online presence. Whether you're launching a consulting business, publishing your writing, or simply creating a hub for your work, Squarespace makes it simple. With Squarespace's cutting-edge design tools, you can build a professional-looking site in just a few clicks. Start with a template or use their blueprint AI to generate a site tailored to your goals in style. No coding required and everything was polished right away. But Squarespace isn't just about design. you can also offer services, schedule appointments and get paid directly through your website.

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David Trump recently said in relation to all of this, that he is the chief law enforcement officer of the United States. And a lot of people took umbrage at that statement. I'm curious, do you? I mean, he is. Right? Okay. Thank you. Is that, is that debatable? It is normally a thing that the attorney general says. We call the attorney general, the chief federal law enforcement officer of the United States. But like, where do you think that power derives from, y'all? This is the whole problem with DOJ as an independent agency. It's not. This goes back to a point we've been making a ton on this podcast is the extent to which we're learning and understanding that the American system of government relied immensely on the honor system. And this is, you know, to the point

talking about pardons, you know, you had a presidency designed for George Washington, an honorable man, right? And so you have an enormous part of the American system of government that rested on a particular honor system. And then once you breach the honor system, you realize, that there was no legal force behind it. So, for example, the DOJ practice of not naming subjects of investigations. That's not in the Constitution. That's not something that they're prohibited from. It was a wise and smart practice for all the justice-oriented presumption of innocence-oriented reasons you've mentioned, Sarah. And now you blow that up and you turn around, and nobody, but nobody, it can do anything about it.

And so we, it's just time after time, day after day, we are learning the extent to which we had an honor system in this country. And for all of the rhetoric that we used against each other prior to, you know, the current era of this president is going to destroy the United States, this president is going to annihilate our constitution. It was so much hot air. It was so much hot air attached to reasonable and debatable differences between. competing political factions.

And then when you see somebody who actually breaks through norms like the Kool-Aid man breaking through a wall, then people don't have the language for it because they've used it all to attack Mitt Romney or to attack Barack Obama or to attack, you name the reasonably conventional politician that came before. And so people have no capacity, just normal, everyday regular folks have no capacity. to sort through the language any longer. I would just amend that statement because I think you are, it seems clear that you're referring to Donald Trump, I would just add Joe Biden to that.

And not as a like, what about Joe Biden? But I actually think that Joe Biden broke through some really, really important norms. And we either as a country didn't sort of flap up and down enough about them, or we were out of words already. And arguably, Trump had broken norms in his first term. So I would just say it started in 2016 and has continued picking up pace from January of 2017 through today. And it just absolutely kept up that escalation during the four years of the Biden administration as well. Well, trying to run for president when you're not fit for office and then having surrounding that with a bodyguard of lies is pretty awful. It's pretty awful. And those pardons. I'm

mean, he refused to enforce the TikTok ban first before Donald Trump did. He issued preemptive partons to his political allies. He issued pardons that we hadn't seen since the Nixon administration or since Ford for his family members. He undermined the judiciary and the rule of law talking about his son, not to mention to go or lying about all of it. And, you know, there's the ignoring the Supreme Court with the student loan stuff, which I think is a little bit of a like closer call, whether he actually ignored them. But doing it in the first place when he said he didn't have the power to do the eviction moratorium, to do the student loan debt forgiveness, he just went ahead and did them anyway. And I hope it is clear that I have walked through for

the last eight months all of the incredibly lawless things this president has done, picking up the pace even more than during Biden's administration. So I'm not equating. the two, it's more just that it didn't start eight months ago, is my point. And literally just the TikTok ban itself, the thing that I think is the most lawless, didn't start with this president. Well, the TikTok ban went to effect January 19th, and they took themselves offline on the 18th. So there's some, that was a little bit more ambiguous. They put out a memo saying that they wouldn't enforce it, that they would wait for the incoming president to enforce it. And then, by the way, don't forget in the same breath, said that the equal rights amendment,

was ratified as far as he was concerned. Whatever that meant. That was so weird. But again, like, think of the norm that's broken by that and think about what happens, you know, when this president does something similar, but it's not with hours left of the presidency. Like, what, huh? We're now just doing wishcasting amendments?

Well, David, you know, we have talked a lot about criminal prosecutions and presidential abuse of power so far on this episode. and I think I'm ready to tell you what I got you for Christmas this year. I'm not going to ruin it. We're going to do it after the break, but it's a book. It was a really fun read. And I want you to guess what a book would be about that is dealing with the topics of this show. And I've brought the author for you.

So right after this break, I'll give you your Christmas present. summer's here, and you can now get almost anything you need for your sunny days, delivered with Uber Eats. What do we mean by almost? Well, you can't get a well-groom lawn delivered, but you can get a chicken parmesan delivered. A cabana? That's a no, but a banana, that's a yes. A nice tan, sorry, nope. But a box fan, happily yes. A day of sunshine, no. A box of fine wines? Yes. Uber Eats can definitely get you that. Get almost, almost anything delivered with Uber Eats. Order now. Alcohol and select markets. Product availability may vary by Regency app for details. You can get protein at home or a protein latte at Tim's. No powders, no blenders, no shakers. Starting at 17 grams per medium latte, Tim's new protein lattes,

protein without all the work at participating restaurants in Canada. All right, David, it's time for me to give you your early Christmas present in August. I have brought you Professor Saiprakash from the University of Virginia with the Miller Center. And he has a new book out, David, called The Presidential Pardon, The Short Clause with a long, troubled history. Professor, we are so excited to have you here. Well, it's great to be here. I've never been described as a Christmas present.

I'm afraid I might be the lump of coal that Charlie Brown gets. So, David, look for a black piece of coal. No, no, Professor. No, this is the good stuff here. We're talking about one of my favorite topics right now. And so, Sarah, can I get the honor of the first question? Please. Are we or are we not flunking an IQ test if we don't revise the pardon power?

I think that's certainly on the table. We've seen members of Congress discuss that. I think you will find, David, that once you actually put it on the table, there'll be lots of people opposed to it because there are lots of people who favor criminal justice reform and see the presidency as the easiest way of doing that because you can mitigate sentences without going through Congress. it's far easier to, you know, have a Joe Biden or someone who's more inclined to that perspective wield a pen very quickly and get the result you want. Maybe you could limit the pardon power with respect to people that are affiliated with the presidency. I don't think criminal justice reformers would oppose that necessarily. But stripping it away, I think, would be very difficult. I mean, we can talk about all kinds of reforms, but as you know, it's just really

hard to amend the Constitution, and the courts have said that Congress can't diminish the effects of a presidential pardon. So that leaves us only with the most difficult route, right? Essentially, you know, climbing Mount Everest, which is, you know, not for the faint of heart. So we are flunking the IQ test, but that's not the whole interview. I would say the following. There's been talk of amending it in the past or reforms in the past, and they've always petered out because we have attention deficit problem, right? There's so many things the president is doing that it's very hard to keep your eye on the ball. And of course, this Congress is not going to pass a pardon amendment while this person's president. Now, maybe they can make it prospective, right? But to pass an amendment

now would be to imply that he's done something improper or wrong. Which is why that's exactly the problem. Even if you do it prospectively, you know, this won't take effect until eight years from now or something. It still has this gloss of impropriety. Okay, you clerked for Justice Thomas, Judge Silberman before that. So I feel like we would be remiss if we did not start with the text of the Constitution here. Article 2, I mean, this is Article 2, Section 2. So right after we do the whole, the executive power shall be vested, section 2 starts with the president shall be commander-in-chief of the army and navy. There's a little bit of yada, yada, and then it says and he shall have power to grant reprieves and pardons for offenses against the United States,

except in cases of impeachment. Will you just give us the top line history of how this ended up in Article 2, what the debates were at the founding and the concerns that they had? Because this reads a little monarchical, if you will. Well, I think at the time a pardon power was long associated with the executive, both in monarchical systems but also in Republican systems. State executives, either plural or singular, had the pardon power. And sometimes they had it because of an express grant,

but sometimes they had it by virtue of their equivalent to the vesting clause. It turns out that in the state constitutions, the pardon power was far more circumscribed than what we find in the federal constitution. And in some instances, state legislatures actually granted pardons, rather than the governor. Or, you know, the governor could, you know, basically reprieve a sentence and then the, you know, the state legislature could actually do the pardoning. But I think, as you're well aware, the Constitution basically reflects a sense that state executives are far too

weak, that we need a stronger executive. We're going to give him appointment power. We're going to give him a veto power. And we're going to give him a very, you know, unchecked pardon power, right? there's this exception for impeachment, which reflects English practice, which goes beyond it in some respects. But there aren't any other express constraints that are obviously constraints from history about the reach of it. But it's, it is a relatively unconstrained power that brings to mind the English monarchy in part because state executives lack this, you know, unchecked grant of pardon authority. But it's a negative power. It is in some legal academic worlds, right? It's like this answer to the dispensing power. The president must take care that the laws are

faithfully executed, but if he really hates those laws, here's this pardon power. So you go back to Jefferson and the Alien and Sedition Acts that had been passed by Congress and signed by President Adams and really, frankly, pushed by President Adams, that were an affront to all things holy. You know, President Adams using that to throw some of his critics in jail. And Jefferson gets into office and is like, this is ridiculous. I'm granting pardons to anyone who was convicted under these sedition acts because I think they were unconstitutional, regardless of what Justice Chase says, B.T. Dubbs definitely going to try to impeach him too. And we can look back on that, I guess. I mean, you know, I don't like Thomas Jefferson. Like, I just cannot tell you what a

not fan I am. But at the same time, one can imagine that being a very good thing and a liberty-inducing power? Well, the pardon power is a double-edged sword. You're absolutely right that it's basically undoing a criminal sentence or preventing a criminal prosecution and a criminal sentence. But it also is forgiving an offense. And of course, one reason why we have government is to protect us from private violence. And if the executive or whoever regularly forgives those who commit acts of violence or other sorts of wrongdoing, well, then we're no longer fulfilling the basic role of government. And so, of course, it serves as a instrument of mercy and people celebrate it as such, and it's usually discussed as a prerogative of mercy, but it also has this effect of releasing

miscreants. And so it's always had this, you know, Janus-like aspect to it. And if you only focus on one, I think you don't understand the potential negative or positive consequences that pertain to it. And the book discusses the Jefferson pardons. And as you say, he's not saying that he can suspend the Sedition Act. The Sedition Act is no longer law once he takes office, that they've timed it to not apply once he's president. He's saying that it's unconstitutional. You won't find anybody, I think, from the founding who thinks that the pardon power can be used to suspend a statute, even though the book discusses that possibility, and even though you might think that President Biden did something like that with respect to,

say, marijuana or, say, with respect to other statutes. So there's this conundrum about everybody agrees that you can't suspend the statute, but the pardon power might be used in such a way. It was never used that way, I think, until recent times. You know, the thing I think about the pardon power that's incongruous with the rest of most of the rest of the 1787 Constitution is if you go back and you look at this, the Madison framework from Federalist 51, if men were angels, dot, dot, dot. The whole thing is constructed because as if men are not angels. And so if you get to any particular power in the Constitution, you see that there's multiple

sets of hands in it, you know, even from Congress gets to declare war, but the president and his commander-in-chief. Appropriations bills originate in Congress, but president signs them into law. He has a veto power that has to be overridden by two-thirds. Again and again, you have more than one set of hands in the pot, so to speak. This seems to be one of the only areas where there's one set of hands in the pot, and it's a president's, and whether it's good or bad, depends entirely on the whim and character of the person wielding the power. So with Sarah's example, there are many virtuous examples of wielding the pardon power because the person either made a good decision or had sort of fundamentally good character when he was making these decisions. But it strikes

me that this pardon power is incongruous with everything else because it is so purely and solely located in the presidency. And its virtue is purely and solely located in the virtue of the president. And that's what seems so opposite and so contradictory to the sort of the rest of the founding structure. Well, I mean, I think you'll find that Hamilton himself proposed a pardon power that was more constrained than the one found in the Constitution. And in the federal's papers, he admits that there are difficulties with the way the pardon power is structured. He thinks it's too broad, or it could be understood as too broad. But his response to that is there will be rebellions from time to time. The legislature is not always in session. A well-timed offer of

amnesty may lead the rebels to lay down their arms. If instead they're told, I can reprieve your crime. I can basically hold it in abeyance. And then the legislature will come back into session and they'll have a noisy debate about whether you'll get a pardon. People will just say that I'm not going to take my chances, right? Like, I don't really know what's going to happen if I don't continue this fight. And so he said, and we can assume perhaps that he believed this,

that you actually needed to have some more quick authority to some more, you know, expeditious way of exercising that authority in times of rebellion. And, you know, we haven't had a rebellion since civil war. But if you look at the Constitution's early years, we have two rebellions. People perceive them as such. We have shays before the Constitution, but then we have the Whiskey Rebellion and Freeze Rebellion. And, you know, they were both nipped in the bud with pardons, but also with shows of force. And you might wonder whether, you know, whether without the pardons people would have been so willing to lay down their arms. Because offers of pardon were made simultaneous, I think, with these shows of force. So when did it go bad? So there are allegations

of it going bad right from the get-go, not in the Washington administration. I have a whole chapter on Washington. And there weren't any controversies during his administration. But during the Adams administration, A lot of the federalists who are opposed to Adams, meaning Hamilton and his allies, are apoplectic that he pardons the rebels, the freeze rebels, because he, they think we just had a rebellion called the Whiskey Rebellion. Both times everybody's pardon. No one's going to take seriously the possibility of punishment if they think they're going to get a pardon every time they engage in rebellion, right? If they win the rebellion, they win. If they lose, they get pardoned. All is forgiven. And so they claim, and I discuss this in the book, they claim that Adams is trying

to become vice president on Jefferson's ticket. It's a crazy claim because it seems so incongruous to us, but they are all believe that he's doing that. But there's a more narrow personal interest at stake. People, scholars claim that Jefferson, sorry, that Adams wanted votes in Pennsylvania, that Pennsylvanians wanted to see the rebels pardoned. And so that he pardoned these people in part, in part, to do better in Pennsylvania in the Electoral College. And he did do much better in the Electoral College in Pennsylvania the second time around than he did in the first. Now, was that the reason why he did it? One can't say, but he certainly must have known that that would be helpful.

At least that's what one scholar has suggested. So there are early allegations of misuse because we know the outcome. Someone is pardoned, but we can't always peer into the head of the person and figure out why they're doing it. And as long as we have people that are suspicious of presidents, and we've always had those, you will always have people suspecting the motives. And so the same thing is said about Jefferson. I think you guys think he was right to pardon people for violating the Sedition Act. But Abigail Adams doesn't believe him. Abigail Adams thinks he's pardoning his allies because the people that were prosecuted were the ones who were critical of the federalists,

including John Adams. So she writes to Jefferson and says, you basically let go of the scoundrel. You let the scoundrel free. Jefferson says, I did it because I think it's unconstitutional. And her response is, no one I know thinks you did it for that reason. James Callender is on his payroll, which we now know. That's right. And the book talks about how Jefferson has been subsidizing Calendar for years.

It changes after the pardon, but that's because Calendar doesn't get a patronage job through Jefferson. And then he turns on his former patron. But from the perspective of Abigail Adams and I guess perhaps others, they view it as a partisan pardon where the president is favoring his allies over the law because obviously Abigail Adams doesn't think the Sedition Act is unconstitutional. Okay. So two important things from that, David. One, that sounds just so modern. It's almost funny. I mean, Adams and Jefferson are incredibly modern presidents in many senses and I don't mean that as a compliment. But two, we have the perfect constitutional. for George Washington. They wrote a constitution for George Washington. It works flawlessly for George Washington. Would that they were all Washington's sad? Well, you know, they say it. People say after the convention that the position was created for him and that several provisions wouldn't have been in the Constitution but for the sense that he's going to be the first president. Everybody

knows he's going to be the first president, which makes it easier to have a singular. or executive rather than a plural executive that makes it easier to give more authority to that executive. So I often tell my students, if you know, if you have a constitutional convention after Richard Nixon's presidency, you have a very different presidency, right? And, you know, the Articles of Confederation create a very different executive during the war against King George, right? People are always reacting to what just happened and writing a law that, you know, reflects their sense of what what happened, but also their sense of, you know, what's going to happen going forward. The Constitution's executive is a reflection of the sense that weak executives weren't working

in the states or at the federal level. So there was going to be a stronger executive one way or the other, but it was stronger still because they saw Washington in the chair, so to speak. We often become aware of problems just when we experience them in real time in our own lives, not through historical reflection. So for me, I became aware of the pardon problem. as late as, and you're going to laugh, the Clinton era with the Mark Rich pardon in some of the ways in which his walking out the door pardons just smacked of incredible amounts of self-dealing and corruption. But how prominent an issue have pardons been historically? Are we in a recency bias right now where we had the Biden pardoning his son, followed by Trump, pardoning

all the January 6ers that has, is this just pure recency bias where we're sort of thinking this pardon problem is escalating, or has this been kind of part of the background hum of American politics for a long time? I think it's been there since the Adams administration in some way. You know, it's there during Lincoln's administration and certainly during Johnson's administration right after Lincoln. Of course, as you know, Ford's pardon of Nixon is super controversial and people think there's a corrupt bargain. And then you're right that, you know, my focus on this came about during the Clinton there. And I remember the outrage and the congressional hearings about those sets of pardons. And I think what's interesting is that outrage is greatly dissipated.

I think people kind of expect or excuse presidents who now use pardons for political reasons, right? I mean, Joe Biden part campaigns on a marijuana pardon, which, you know, is fine if you really think marijuana, you know, shouldn't be criminalized, but you can quickly see how that then makes all criminal laws subject to the whim of the president, right? If I don't like the IRS, I will just promise to give everybody remission from all income tax penalties, right? And if I don't like environmental laws, I'll just run on a platform of not, you know, of pardoning all environmental offenses, right? Both when I come into office and when I leave. And of course, you know, Donald Trump said this about January 6th. He said over and over, I'm going to pardon.

them. But it wasn't clear who he was going to pardon, and it wasn't clear he was going to pardon the violent offenders. And then he came into office and just did so, I think, in part because he didn't want to have people sift through the thousands of applications to figure out who deserved to pardon and who didn't. And he thought, better to just pardon them all and not just get this out of the way. Because he knew that if he pardoned some people, he would face pressure from his allies to pardon the rest that would last throughout his administration. He didn't want to, he didn't want to separate the good from the bad, right? He just pardoned them all. We've entered, I think, a new, you know, a new stage, a more dangerous stage where presidents run on granting

pardons and amnesty designed to, you know, increase their voter support in their base, and then they undo the prosecutions of the prior administration, right? That's what, that's essentially what Trump was doing, and I expect that some people prosecuted by this administration will receive pardons, you know, once Newsom or Harris or, you know, Shapiro become, you know, once someone like that becomes president. And what about the, just real quick, the prospective pardon, we are pardoning you for something you could be charged with. So this was the, this was the pardon that Biden issued to Cheney, Kensinger, others. You could easily imagine a situation where a president, let's suppose you've had a record of a lot of trades being made right before a tariff

announcement is made. People shorting stocks, people buying stocks, et cetera. And you could easily imagine a situation in which a president just issues a bunch of preemptive pardons to the whole, everyone who worked in his administration and sort of creating you enter into government service with the president and you're going to have a law free zone for however long you're in office. obviously there's no zero constitutional safeguard against that. Have you thought through and sort of talk about some reforms that have been discussed

that would preserve what the criminal justice reformers like about it, sort of this last chance for deserving people to get a second look, versus what it's becoming the opportunity to warp this system of justice to benefit friends and punish enemies? Yeah, the last chapter of the book, talks about various reforms. I think, again, if you wanted to limit the president's ability to pardon, you know, relatives and friends, you'd have, you know, relatives are perhaps easier to define. Friends are perhaps harder to define. But I think anything, you know, if you had a situation

where the chambers had to approve certain pardons, that obviously makes it harder to get a pardon through. And people that are interested in using the pardon power as an instrument of criminal justice reform will recognize that it will be harder to get a pardon of a accused or a criminal through because members of Congress might oppose that which the president is doing. There's a reason why a lot of pardons happen at the end because the president isn't going to face any consequences, electoral consequences, certainly, or even political consequences or much political consequences from pardoning as they leave office. But if you have to vote on it, then members of Congress might well object.

and other possibilities to have some kind of legislative veto where a pardon takes effect unless one or both chambers disapproves, and that would, I think, maybe change the dynamic in some way. You could do what state constitutions did, which is say certain crimes can't be pardoned by the president except with the consent of Congress, right? So you'd be walling off certain offenses, but, you know, given the ingenuity of legislators, I mean, you can define offenses in all sorts of different ways that might get around, say, singling out murder or riot or any number of offenses. So it's really a puzzle how to do this right. Of course, there are many countries and there are 50 states and they all do it differently. The book actually talks about the possibility that we need

more partners, not just the president. If you really believe that presidents have too much on their plate, and they're not really going through the meritorious applications, then maybe having either the president delegate or Congress authorized someone else to pardon might make sense. And so the book actually doesn't take a position on what ought to be done other than to complain a lot about what's on the horizon. And again, the book is called the presidential pardon, the short clause with a long troubled history. You can pre-order it now. It's coming out January 20th, 2026. Last question, what does your perfect constitutional amendment look like? You can't pick anything. It has to be about the pardon power. Well, you know, the book ends with the discussion of reforms. I think it might make sense to create another institution that exercises the pardon power in parallel with the presidency.

because I think it's the case that presidents actually aren't going through all the materials that the Department of Justice gives them. So the Department of Justice makes recommendations, and the presidents are often overwhelmed with other duties, and they don't actually review these things very carefully. And there's a backlog of recommendations from the Department of Justice with the White House that hasn't been acted upon. So if there was a second institution, you know, they would be able to go through this, right? a parole board kind of serves this function. It's basically commuting the sentence, and that's long existed under law. And then there have been other instances where Congress has authorized presidents or authorized other people to pardon, including military commanders. And the Treasury Secretary can remit

fines under statute. So we've had a history of having other people pardoned, and maybe we need to do more of that. And then when we're talking about the president, I think it makes sense to limit the president's power to pardon because I think, as I said earlier, we're on the cusp of a highly politicized pardon power. We've already gone over the cusp because what we see is, again, presidents running on promises to pardon. That doesn't seem to be an appropriate political promise of sorts. And then what we see is presidents just systematically undoing the prosecutions undertaken by other administrations. And I don't think we want to have presidents able to pick and choose, which punishments that have already been exacted shall be undone merely because they

dislike the punishment or they dislike the underlying law. And we're seeing that now from the last two presidents. Well, David, that was a treat of a conversation. Did you enjoy your Christmas president in August? Oh, I loved it. I loved it. Absolutely. I was most intrigued by going back to the early American confrontations about the pardon power. I just wrote a piece in the Times that was drawing from some of the ratification debates that were centered around the pardon power. So this thing has been sort of laying there as this kind of poison pill for a while. And every now and then the poison leaches into the system and delivers a shock to the nervous system. And so, yeah, I'm here for that conversation or I was here for that conversation. All right, on the next

episode, we actually also will have another professor. But David, we also need to talk about Trump's proposed executive order, criminalizing flag burning, what exactly he can do and can't do under Texas v. Johnson. And the Supreme Court has another interim docket's order about grants. The order itself, maybe I'm not that into. The fact that it was 414 with 36 pages of opinions. Oh, I'm into it. Next time on advisory opinions. Oh! Oh! Oh!

Oh! Thank you. I don't know.