Let's Find Common Ground - “The Pardon: The Politics of Presidential Mercy” - Book Talk with CNN Chief Legal Analyst Jeffrey Toobin

Episode Date: February 22, 2025

CPF Director Bob Shrum joins bestselling author and CNN Chief Legal Analyst Jeffrey Toobin for a discussion on presidential pardons and Toobin's new book "The Pardon: The Politics of Presidential Mercy." They discuss famous pardons throughout history and the latest pardons from Presidents Joe Biden and Donald Trump. Featuring: Jeffrey Toobin: CNN Chief Legal Analyst; Bestselling author of "True Crimes and Misdemeanors," "The Oath," "The Nine," "Too Close to Call," "The Run of His Life" (made into the FX series The People v. O.J. Simpson), and "A Vast Conspiracy" Bob Shrum: Director, Center for the Political Future; Warschaw Chair in Practical Politics, USC Dornsife

Welcome to Let's Find Common Ground from the Center for the Political Future at the University of Southern California's Dornsife College of Letters, Arts and Sciences. I'm Bob Shrum, Director of the Center. And I'm Republican Mike Murphy, Co-Director of the Center. Our podcast brings together America's leading politicians, strategists, journalists, and academics from across the political spectrum for in-depth discussions where we respect each other

and we respect the truth. We hope you enjoy these conversations. Welcome, I'm Bob Shrum. For those of you who don't know me, the director of the Center for the Political Future here at USC Dornsife. And we're happy today to welcome Jeffrey Tubin for a discussion centered on his new and extraordinary book, The Pardon, The Politics of Presidential Mercy. He is both a brilliant lawyer and insightful commentator, chief political correspondent at CNN. And his pieces in The New Yorker are always eloquent and often a convincing rebuke to conventional

wisdom. After he and I talk, I will leave about 15 minutes for questions from any of you in the audience here. Let me start with this. The president's power of pardon is plenary. No conditions, no guardrails. Why was this in the Constitution in the first place? And why were the founders, for example, Alexander Hamilton, so strongly in favor of it? In the best political tradition, I am going to begin by not answering your question and just say how happy I am to be back at USC And just say how happy I am to be back at USC and in LA. I owe, I have to say a great deal of my career to a Trojan, but enough about OJ.

And so I, but it is true. I mean, that's the story that put me on the Mac and it also, you know, led to two years out here in beautiful LA. And so anyway, so thank you, Bob, for inviting me and, and thank you all. me on the Mac and it also led to two years out here in beautiful LA. And so anyway, so thank you, Bob, for inviting me and thank you all for coming. Why was the pardon power in the Constitution? Well, just to go through the chronology a little bit, after the American Revolution, there was the Articles of Confederation where there was no president and there was no pardon power. But because of the dysfunction produced by the Articles of Confederation, it led to the Constitutional

Convention of 1787 where Alexander Hamilton became the leading advocate for a strong executive whom they decided to call a president. And Hamilton was the person who said, this should include the pardon power. And the pardon power is the part of the Constitution that's a true anomaly in that there is no check and balance. Virtually everything else in the Constitution, there is some check and balance from a different from the legislature, the courts, and the executive check and balance one another. Not true with the pardons. It's the part of the Constitution that comes most directly from the Royal prerogative of the King of England. And the reason Hamilton wanted it was twofold. One I think was a little more public relations and the other was more in line with Hamilton's ideology.

The first was as a power of mercy, simply that Hamilton said there are cases where criminal law treats people too harshly and he was concerned in a very proto way with the problem of mass incarceration. So, you know, that was one reason. The other reason was more, I think, consistent with Hamilton's view of the executive, which was he saw it as an opportunity for the exercise of executive power. And he had a specific idea in mind, which was, this was a period when there were political rebellions of various kinds. The American Revolution had been one.

And he thought that presidents could use the pardon power to ameliorate situations where there were rebels and it could be a tool used to calm the situation. George Washington becomes president. This first use of the pardon power is very much along those lines. There was something called the Whiskey Rebellion, which was essentially a tax revolt in Pennsylvania. It was put down fairly easily by the very new American government. But George Washington, instead of punishing the rebels, exercised the pardon power to calm the waters. It was very successful, much more consequentially, but in the same way. After the Civil War, Abraham Lincoln issued an amnesty, which is sort of a group pardon

to the southern soldiers, not the leadership, but the soldiers who as long as they pledge their loyalty to the Union could be readmitted as citizens and got pardons from treason otherwise. So this tension between whether the pardon power is for mercy or for the political advantage of the president is something that was present at the birth of the pardon power, but recurs to this day. Adam Lichman You know, I'm listening to that and reading your book. I'm reminded of the fact that Hamilton wanted Washington, as he was shaping the office of the presidency to call himself his high mightiness.

There was a lot of dispute that ended ultimately with Mr. President, but would it be your majesty? Would it be your highness? And you know, it seems obvious to us now. Your Excellency. Your Excellency. I mean, and you know, it seems funny and odd now, but that symbolized a very important debate in the Constitution about how powerful this president should be and what you called him. And it was of course only him in those days and these days. Still is.

I was going to say, yeah. Was symbolic of a larger issue. Yeah. The second thing is, talked about Lincoln, he also used the pardon power to save soldiers in the Union Army who were convicted of desertion. And his successor, the hapless Andrew Johnson, used the pardon power a little less benignly. Well, that's right. Lincoln used it to welcome the soldiers, the low-level soldiers back into the Union. But Johnson pardoned the high-level Confederates, including eventually Jefferson

Davis, the president, which outraged the Republicans of those days. In those days, the Republicans were the...they were the anti-slavery party. But the transition from Lincoln to Johnson and what that meant for the crippling of the Reconstruction Project is one of the most profound events of that era. Yeah, Johnson, I just have to footnote this. He had another little impact on history, a small impact. In those days, vice presidents, when they were inaugurated, often gave a little speech in front of the Senate.

He was so drunk when he gave his speech that after that, they abolished the custom. So let's come to modern times. Until recently, the most famous or infamous modern presidential pardon was Gerald Ford's decision to grant one to Richard Nixon. And that's the reason there are a lot of David Kennelly's pictures in your book, because he was Ford's official photographer. You've uncovered some interesting facts about the inclinations and machinations that led or induced President Ford to make a decision that may have doomed him to defeat in 1976. Can you tell us about that?

Well, sure. And one of the theses of the book is that because pardons are this distinctive unilateral power, they operate like X-rays into the souls of presidents. You can tell who they really are by whom they decide to pardon and whom they decide not to pardon. And I think that is true of Ford and Nixon. Much of the book is about the Ford and Nixon situation. Gerald Ford was, I think, one of the things that's still well known about him is that he was a great football player at the University of Michigan. That was a very important part of his life. Something he really believed in was being a team player. That was an attribute that he cared about a lot. And when he became vice president at the beginning of 1974, we've succeeding Spiro Agno, just sort of interesting constitutional note, Ford was the first vice president chosen under the 22nd Amendment. When

FDR died and Harry Truman became president, when JFK died and Lyndon Johnson became president. There was no provision for filling the vice presidency. So there was no vice president for a period of time. But under the 22nd Amendment, there was this process where the president could nominate someone who with a majority vote of the House and Senate... This is in reaction to the Kennedy assassination. Right, to the fact that, you know, especially during the Cold War, it seemed important to have a president

and vice president at all times. Nixon, who was so Machiavellian, thought that Spiro Agnew, I think he thought correctly, that this was an insurance policy against being removed from office because he was so obviously in unfit to be president. And Nixon, I think underestimated Gerald Ford and thought similarly about Ford.

Ford was, he was the minority leader of the House of Representatives, a long-term serving member of the House of Representatives, but not a high profile person and not famous for giving great speeches, not famous as a great mind. But someone who I think Nixon didn't quite realize had a sense of decency and honesty and common sense that actually did make him look like a possible president, which is one of the reasons why the Democrats proceeded with impeachment. But to get to the pardon question, because Ford was a team player, he wanted to be seen as not lusting after the office of president. And he spent his only

eight months as vice president, mostly traveling around the country, campaigning for Republicans for in the upcoming 1974 midterm elections. And he did not immerse himself in Watergate at all. And in fact, didn't even know a lot of the issues that were facing the president with regard to Watergate. He becomes president and he's assaulted with these issues, including one in particular that's sort of forgotten today, which is the fate of the White House tapes. Before 1974, when this all took place, there was a tradition that outgoing presidents took all their papers with them. Every president did it. Lyndon

Johnson did it. And Nixon, upon his removal, said, okay, ship me my papers, including the White House tapes. And Ford is presented with this issue. What am I gonna do? Am I gonna ship the White House tapes so he can destroy them while these investigations are going on? So he says, I need to know what the law is. So he goes to his attorney general

and his attorney general goes to a young lawyer on his staff named Antonin Scalia. And Antonin Scalia writes a memo that's a very interesting, characteristically beautifully written memo, but very clever in that says, well, there's this tradition that the president gets his papers and it's the custom, but there was no law in effect. And Scalia, who, you know, believed in strong presidential power, sort of tried to leave the impression that Nixon was entitled to these papers. But Ford very much, I think to his credit, said, these papers are part of a criminal

investigation. The tapes were, I'm not turning them over. They're going to be the property of the government. But that left him with the problem of what the hell to do in the meantime. And he holds his first press conference. He becomes president on August 9th. He holds a press conference, I believe it's the 24th. David, I don't know if you remember these dates.

David was the date, did David remember August 9th? Well, August, yeah, so that's the day he becomes president. And he becomes really a beloved person. He gives a famous speech where he says, our long national nightmare is over. There's this bipartisan sigh of relief that Watergate is over. But Ford is asked questions at the press conference. What about the papers? What are you going to do about Nixon? And Ford gets frustrated with these issues and he doesn't want to be dealing with Nixon.

He wants to start over. And he becomes frankly somewhat obsessed with the idea of putting Nixon and putting Watergate behind him. And Alexander Haig, who is this fascinating Machiavellian double agent, who is still communicating with Nixon on a daily basis, but Ford's chief of staff for now, but he's still there in the meantime. And Hague says to Ford, well, you know, one way to get at this all behind you is to pardon Nixon.

And Ford starts to warm to the idea. Just to show you how sort of crazy things were in this, instead of assigning a senior task force to look at this impeachment, Gerald Ford recruits a volunteer young lawyer named Benton Becker, who had worked for him part-time in the House of Representatives and says, go research pardons for me over Labor Day weekend. Ben Becker all by himself finds open libraries over Labor Day weekend and he comes across a Supreme Court case from 1915, a case that no one had heard of then and I never heard of when I started research on this, but it's actually a fascinating case. It's called United States versus Burdick.

George Burdick was an investigative reporter in one of the New York papers who uncovered a series of some corruption at the customs service there. The US attorney wanted to investigate that corruption, So we called Burdick to the grand jury. And Burdick said, I'm taking the fifth. I'm not going to cooperate with your investigation. And the US attorney said, oh, yeah? Well, I'm going to get President Woodrow Wilson to issue you a presidential pardon so that you can't take the fifth,

because you can't be incriminated. And Burdick said, I don't care. I'm still not talking. And they locked him up for contempt of court. And he appealed his case all the way to the Supreme Court. The Supreme Court said, Burdick gets out of prison. Why? Because he had not accepted the pardon. And in a passage that became very important to Becker and then to Ford, the Supreme Court said acceptance of a pardon is an acknowledgement of guilt. And Ford said, oh no, we're going to have to get Nixon to acknowledge guilt to accept a pardon. And he becomes like the supplicant to Nixon where like we need to talk him into

getting and Nixon wanted the pardon in the first place. And he had used the papers as leverage to get to stay on Ford's back. And ultimately, Ben Becker goes on the secret mission to San Clemente, the Western White House, and Nixon sort of reluctantly agrees. He thinks reluctantly. He wasn't reluctant at all to the pardon. And on September 8, Sunday morning, a very weird time for a presidential

speech at 11 o'clock in the morning, David Kennerly taking photographs there and there's a great photograph at the very beginning of my book taken from behind the camera. And you can tell how old the camera, like a 1974 camera, it's a great image. But he issues the pardon. And Ford didn't do anything to prepare anyone for this pardon. He didn't tell his Republican allies in Congress. I mean, there was a number of people who knew about this pardon. It's like a nuclear bomb. It was. His popularity sunk at 20 points in a week and frankly never recovered. But one of the things that I, you know, the suspicion had been over the years that there

was some kind of deal with Nixon, that Nixon had made a deal that said, if you give me a pardon, I'll give you the presidency. And Ford always denied that such a deal took place. And Ford was right. There was no deal. However, I continue to believe that the pardon was a bad idea, but it was not a corrupt idea and it was done out of good motives. And so that's, I'm sorry, a rather long summary.

What went on? So that's, I'm sorry, a rather long summary. A couple of follow ups. My understanding is that his chief of staff, General Haig, was also going into Ford almost every day and saying, you know, President Nixon's sick, he's got bad legs, he could die from this. It wasn't every day. And there was, and one of the reasons he sent Becker to San Clemente was to see how Nixon seemed. And he comes back and he says, Nixon's so old. And I find this somewhat disturbing because Nixon was 61 years old. I don't want to get too personal, but it's like, you know, 61 is the new whatever. But he was bad. But one of the reasons Ford never

thought this through completely is that at the time he went back and forth about whether Nixon's health was a factor in this. Mostly, he said, and I think this is true, was the motivation for the pardon was to get the country past Watergate. This was for the country, not for Nixon. But being the kind of person that he was, he was also sympathetic to Nixon's plight. And in fact, Nixon got very sick right afterwards. He had phlebitis and almost died, was in the hospital. He then recovered and lived for another 20 years. Yeah. You say the pardon was a mistake, not just politically, but on the merits. Ford

later got the Profiles in Courage Award from the John F. Kennedy Library for granting the pardon and for helping to put behind himself and the country all of the terrible stuff that had gone on. Well, this is one reason I wrote the book, because the conventional wisdom about the pardon has flipped almost 180 degrees. What Bob is mentioning, it's really the one photograph in the book that is not by David Kennerly is of Ted Kennedy giving the Profile in Courage Award to Gerald Ford. He gave this beautiful speech in May of 2001 saying, I was wrong about the pardon. Kennedy was a big critic of it, and you were right. It took courage and it helped heal the country.

Bob Woodward, who, you know, the great Watergate sleuth, wrote a part of a book saying, I was wrong about the pardon, that it was the right thing to do. It was an interesting exchange in the Supreme Court argument of the Trump case last year, where Brett Kavanaugh asked the argument of the Trump case last year, where Brett Kapanagh asked a question of the lawyer and he says, well, you know, there was the Ford pardon.

It was unpopular at the time, but everybody now agrees the pardon was the right thing to do. And I was fascinated by this shift in public sentiment. And I think public sentiment was right in the first place, that the public pardon was bad. But it's an interesting shift in how things went. I want to come up to the present. Donald Trump's use or abuse of the pardon power is unprecedented in scale and arguably even in purpose in the case of Mayor Adams in New York. Well, he's not pardoned Adams. One of the weird things...

He's commuted. No, he's not. He's dismissed the charge without prejudice, meaning he can restore them. It's different from a party. It's equally bizarre, but it's... Yeah, he's using his authority over the Justice Department. But he's given him a conditional get out of jail free card. As long as he keeps telling the lie. Yeah.

Now, the book was finished before Trump took office, but you predicted that he would engage in what I think of as a tidal wave of pardons. Why were you so sure he would do that? Well, one of the things about President Trump is a lot of what he says he's going to do, he does. I mean, and he said repeatedly during the campaign, I'm going to pardon the January six people. He was a little bit inconsistent about whether he was going to pardon all of them, which

he wound up doing or not the violent ones. But just to go back to my overall hypothesis about pardons. Trump as a person and as a president is the most transactional of human beings. It's always about what you can do for him and what he will do for you in return. He punishes his enemies and he rewards his friends. If you look at his first term pardons, especially the hundred or so he issued at the very end, what did he do? He pardoned all those that Robert Mueller prosecuted. Mueller was his great enemy.

He pardoned Charles Kushner, his daughter's father-in-law, because he was a friend and supporter. He pardoned a bunch of Republican congressmen who had been convicted in the most egregious bribery and scams because they had been on his team. And he pardoned a bunch of people who happened to have access to the White House, whether it was through Jared Kushner or Alan Dershowitz or other people who were close to the White House at that point because they were friends and allies. And the key point to remember about January 6th, as far as I'm concerned, is that, you know, he pardoned January 6th defendants.

Donald Trump was a January 6th defendant too. It was a different set of charges, but in the Jack Smith case, he was charged with trying to overturn the results of the election. he was charged with trying to overturn the results of the election. So by pardoning the January 6th defendants, he was pardoning himself in every real sense. And that, you know, that's why he called January 6th a day of love, because it was love for him. And that makes it, in my view, deeply, deeply egregious. Isn't there supposed to be a process here that originates in the Justice Department and involves extensive review? The answer to that question is there is that process, and that's been true for many, many

years, but it's also been true that the presidents are not obliged to follow the process because the power in the Constitution is unlimited and very straightforwardly stated in Article 2, he doesn't, he, again, he doesn't have to follow the process. However, there is this Office of the Pardon Attorney in the Justice Department where they process requests for pardons and they have a set of criteria. You know, have you expressed remorse? Have you completed your sentence? Have you acknowledged your guilt? Have you apologized? And the people who get through that process tend not to be terribly controversial as pardons.

Presidents get themselves into trouble when they avoid that process. When Bill Clinton pardoned Mark Rich, the fugitive financier- Who was holed up in Switzerland. Who was holed up in Switzerland after fleeing from federal charges in New York, that pardon did not go through the pardon office. When Joe Biden pardoned Hunter Biden, that didn't go through the pardon office. When presidents- When President Bush pardoned Hunter Biden. That didn't go through the pardon office. When presidents... When President Bush pardoned...

Pardoned the Iran-Contra defenders, that was not through the pardon office. When presidents operate out of peak, out of vengeance, out of family sympathy... Partisan self-interest. ...partisan self-interest, that's when they get into trouble, not when they follow the advice of the Justice Department. So let me ask follow-up with this by asking you about President Biden's pardons, which were more limited, but unprecedented in both their preemptive coverage and the fact that they were extended to members of his own family.

How right and how wrong, and you seem to think he was wrong, was Joe Biden here? And did he have to do it, at least to preempt the pardons, to protect people like Liz Cheney from retribution? Just to lay out what he actually did, and I think there's sort of three clusters of pardons we're talking about here. One is the pardon of Hunter Biden, his son. The other is the one of five other relatives of Biden that he did literally on the day of Trump's inauguration. And then there was a group of pardons of people who had been involved in investigating Trump, or Trump had already announced his plans to investigate if not prosecute them, including Liz Cheney, including Dr. Fauci.

Adam Kinzinger. Yeah, other people who had been sort of on Trump's very clear enemies list. So let me talk about those three. I think- Talk about each pocket. Each pocket. I mean, the Hunter Biden pardon is of course, the most controversial. And again, I think it is worth remembering, you know, the personality of the, and the history of the president involved. Joe Biden is, and there are many worst crimes,

but Joe Biden is obsessed with his own family. And you can see why, if you look at his history, is, you know, his first wife and daughter dying in this terrible car accident accident right after he's elected to the Senate at age 30, his son, Bo dying of cancer when Biden is vice president. And also if you listen to Biden talk, he always talks about what it means to be a Biden. I mean, it's just he- I give you my word as a Biden.

I give you my word as a Biden. I mean, this is something that is very meaningful to him. All of us love our families, but he has a particular obsession in this regard. And Hunter Biden has led this, shall we say, checkered life for a very long time and seemed to have gotten his act somewhat together. And he wound up being prosecuted for, you know, in Delaware for this, you know, lying on a gun farm and here in California for some tax crimes. And Biden thought with some justification that he had been treated harshly by the criminal justice system. Most people who commit those crimes are not prosecuted.

Are not, correct. And he thought he was at risk for even more harassment when Trump, and as a result, issued a pardon, notwithstanding, having said repeatedly as president that he wasn't going to do it. And I think... And if Kamala Harris had been elected, do you think he would have done it? Probably not. Probably not. But the...

I just think that our criminal justice system is full of people who got a raw deal, who were prosecuted too harshly. And there are 150,000 people in the federal prison in the United States. Not all of them should be there. And a substantial number of them, not all of them by any means, you know, got raw deals. But only one of them, his father was president of the United States. And he's the one who got cut a deal. And I'm sorry, Hunter Biden was guilty of those crimes that he was convicted of. And I think it contributed to the cynicism that people view our political system, that Biden took care of his son.

The pardon of his relatives, the five relatives is to me to this day, simply bizarre because they were not, and as far as I know, have never been under criminal investigation for anything. But Biden was so worried that they would be that he took this extraordinary step of protecting those Bidens as well. But the Republicans on the House Oversight Committee were all talking about Jimmy Biden. They had been talking about that for literally for years and had never really and never done anything. I don't think there was any realistic possibility. I mean, I will grant that there was a possibility that Hunter Biden was going to be further harassed, but the siblings, and the in-laws, I don't think. Now, to get to the final group,

the sort of enemies list people, the Fauci's, the Cheney's, it's a more defensible group. That's a more defensible set of pardons. But I also think that wasn't right either because I don't think we should be getting in the business of preemptive pardons of people we think might be prosecuted. I think we have to trust our criminal justice system enough to think that if people are really being harassed and really innocent, the legal system will ultimately vindicate that. Now, that's not a guarantee. And the very act of being investigated can be deeply traumatic and expensive for people. So I'm not trying to pretend that has no cost, but these pardons have cost too.

And I thought a lot of them were bad ideas, the Hunter pardon being the worst. I, from the day moment, Donald Trump was elected, I thought the president was, President Biden was going to pardon his son. I made the mistake of believing what Biden said. I took people he was not. I thought, you know, how can you go repeatedly say, I am not going to do something and then do it? When it was clear that Trump might win the election, it wasn't like a huge upset.

And, you know- I'll give you a political answer to that. Please. If he had evaded the question or said, I don't know, that would have become a gigantic issue that would have run all gigantic issue that would run all through the presidential campaign. And so therefore, Jimmy Carter famously said, I'll never lie to you. And he, of course, at a certain point did have to lie to us about some things related

to national security. And JFK, when he found out about the missiles in Cuba, they announced that he had a bad cold that was going back to Washington. So I just think that they assumed, he assumed that it would be a firestorm politically if he gave any kind of ambiguous answer to that question. Well, I think you are clearly correct that it would have generated a lot of commentary if he had not answered directly. But on a matter of this kind of significance, I think you don't lie to the public about

this. I just think it's wrong. And the whole process and the whole way Biden handled this is a substantial injury to his legacy as president. I think it was, I think, you know, it's not the whole story, but it's bad. And yes, if he had given an ambiguous answer, it would have generated attention, but people didn't really care that much about Hunter Biden. They really didn't. Only like, you know, the core Fox News audience, which as big as it is, is only 3 million people. And there are 330 million people in the country. They were the only people who really cared about Hunter Biden. So I

think it would not have crippled either Biden's campaign or Harris's campaign. And I just don't think he should have lied. I think there's one other possibility that he thought he wasn't lying. Well, that may be it. Yeah. No, he changed his mind Yeah, I mean people people change their mind. I mean, there's this stigma in politics that Politicians are not supposed to say I changed my mind It's like it's actually good to change your mind sometimes but one if you're president You're gonna have to change your mind a number of times. Yeah, although this it may not happen in this President's turn. Well, okay, that's another...

How do you foresee... Well, I'm going to get into that role. How do you foresee future presidents using or abusing the power to pardon now that we've seen to have entered a whole new chapter in the history of this constitutional provision? Well, you know, what's interesting is that because of the controversy and the negative fallout of the Ford Cardinal Nixon, presidents really shied away from pardons altogether. I mean, there were a handful, but nothing of any great significance for quite some time. I mean, and you know, the most high profile pardon problem after that was Bill Clinton's

pardon of Mark Rich. Bill Clinton's pardon of Mark Rich. President Bush's pardon of Caspar Weinberg. We have the George Herbert Walker Bush's pardon of the Iran Contra defendants. But there were all these negative, to the extent presidents got involved in pardons, it had a bad odor. And you know, one of the interesting anecdotes that I learned is that George W. Bush, the relationship between Bush and his vice president Cheney was sundered and to this day still

harmed by Bush's failure to pardon Scooter Libby, who was a close aide to Cheney. And when Bush took the limousine from the White House to the Capitol with Barack Obama for Obama's inauguration on January 20th, 2009, the one piece of advice he gave to Obama was pick a pardon policy and stick to it because otherwise people are going to be up your ass begging for pardons and it'll drive you crazy, like it's been driving me crazy. And Bush, to his credit, did not have any controversial pardons. But we get to Trump and Trump has now changed the whole pardon enterprise because he, in his transactional way, understands that it's a way

of conducting political transactions. And so it's not just that he pardoned the 1,500 January 6th rioters, he's pardoned a group of people who had interfered with abortion clinics. So he was helping his right to life allies. He pardoned Rod Blagojevich, the corrupt governor of Illinois. Tried to sell Barack Obama.

Senate seat, yeah. And he's going to use, I mean, there was this sort of sense of shame about cardins. That's why they all pushed the pardons to the end of their term when there could be no accountability. That's when Mark Rich happened. That's when the Iran Contra pardons happened. He's doing them now. He's doing it at the beginning of his term because he is shameless about using the pardon power to punish his enemies. I think your question about what does it mean

for the future depends on what kind of presidents we have after Trump. And God knows I'm not prepared to make that prediction at this point, because if it's another acolyte of Trump, I expect they'll do the same thing. If there is a significant reaction to Trump, they won't. But I don't know what's going to happen in the 2028 election. I don't know what's going to happen in the 2028 election. I don't know what's going to happen on Thursday. So, you know. And you don't know what I'm going to ask you next.

I do. I do not. So I want to ask you more generally about the president and go beyond the book for one last question before I turn it over to them. How do you assess his instant seemingly all-out assault on so many federal agencies and employees, along with his attempt to repeal birthright citizenship? And how is this likely to be resolved by the courts? And what happens if he defies the courts? I do think there is an underlying philosophy to what's going on. I mean, I think the Trump presidency, this presidency in particular, much more than his first term, is about vengeance and punishing people who he feels wronged him.

And that is what really explains this war on the federal bureaucracy. It's not about saving money. I mean, you know, he's going to cut taxes. He thinks they're all liberals. Exactly. And he thinks they are. They aren't. I mean, he's been firing people who voted for him.

Well, it was fair. Yeah. And it's all about, I mean, it's always personal with Trump. And so I think that's why he wants to. And you know, he has written the immigration issue to the presidency twice. And that's the issue on which he has sort of bet his political career. And that's what explains birthright, the war on birthright citizenship.

So okay, so now all these court cases are working their way through. The one I think he's going to lose almost for sure, even in this Supreme Court is birthright citizenship because... Unanimously or... Oh, and it won't be unanimous because Thomas Amish and Alito and probably Gorsuch will vote against him. But you know, you don't have to be a lawyer to read the 14th Amendment and read the word born.

You know? Born means born. You know, born means born. And there is a Supreme Court case from the early 20th century that directly says this. The logistical nightmare that would result from ending birthright citizenship and creating a whole new system is something that I think six or seven justices will recognize is a nightmare. So, that one I think he'll lose and I don't think he even cares that much about losing that one. This was something he said, he was going to push, he's going to push it.

The much more consequential issues, I think, legally, and the ones that present the biggest potential for constitutional crisis involve the exercises of presidential power, the ability to fire anyone in the federal government, not just presidential appointees, but all the way through the bureaucracy, basically trying to get rid of the civil service protections that came in in the progressive era in the early 20th century, and also the issues relating to the expenditures of funds. You know, whether he can essentially override Congress's power of the purse, you know, what he has done. Which the court in the 70s said could not be done. Could not be done and Congress passed a law because one of the largely forgotten parts

of Watergate is that, I think people may remember that the House Judiciary Committee voted three articles of impeachment, but then Nixon resigned before the House had a chance to vote. The House Judiciary Committee actually voted down an article of impeachment based on impoundment of funds, that his refusal to spend funds that Congress had appropriated. But in 1974, after Ford took over, the Congress passed a law called the Anti-Impoundment Act, which basically said even more clearly that if Congress votes to spend money, you have to spend the money. That is what I think could lead to the constitutional crisis because he really doesn't want to spend

money on USAID, on parts of the federal bureaucracy he doesn't like. One of the many legal challenges, the one in Rhode Island is at the moment, I think the most consequential because that's one where the judge said in two rulings, one, you have to spend the money that Congress allocated and then the second ruling, you were ignoring my ruling and you're still doing what...and that case is on appeal. But that case is, I think, the most consequential because that deals with the question of what happens if he ignores the courts. And in fairness to Trump, when he had that wacky press conference with Elon Musk's kid running around, he was asked, will you follow court orders? And he said, I will follow court orders, but I'll appeal them, which is perfectly appropriate.

However, he has also said things like courts can't do this. Vice President Vance has made similar statements. Elon Musk has been tweeting about how judges need to be impeached for ruling against the president. And I think what he's doing is maybe even more sophisticated than we give him credit for because what he's saying to the Supreme Court is, do you want this constitutional crisis? Do you want to get into a fight with me about this and test what happens if I or if you rule with me, then there are no problems. So I think that this is meant to intimidate the Supreme Court and because he's got six

votes there that are at least somewhat sympathetic to him, he may wind up winning the most controversial cases. Time to four. Or six to three. I mean, John Roberts and Amy Coney Barrett are sort of getting this reputation as like born again moderates. It's all in Poacher-Bratt stuff. Yeah.

And John Roberts wants to, you know, when John Roberts is in the majority, he gets to assign who writes the opinion. And as chief justices tend to do, they tend to assign the most important ones to himself. If you're John Roberts, would you rather be in a 6-3 majority where you get to write the opinion or 5-4 in where you're in the minority and have no power at all? I think that suggests where Roberts is going to go. What does this mean for democracy if this happens?

It's just, you know, we're getting above my pay grade here. I mean, you know, what's gone on in this first month is something profound. And you know, the steamrolling of Trump has always been about overturning norms, what we expect of a president, but not necessarily laws. This is an order of magnitude greater. We have a situation where the Republican Party has become completely his instrument. I mean, just, you know, this, you know, on CNN, the words that I overused, you know, during the Trump years over and over again were shocking, but not surprising. And, but, you know, what he is now saying about Ukraine, that, you

know, that Zelensky is a dictator, that Ukraine started this war by presumably invading itself. You know, and getting no pushback from his own party, it just tells you we're in a very different moment. And I don't pretend to know the answer, but even though, like most people, I expected Trump to flex his muscles more in his second term than he did in his first, even I am surprised by the extent of what he's doing. We hear about violence all the time in the news, yet we rarely hear stories about peace.

There are so many people who are working hard to promote solutions to violence, toxic polarization and authoritarianism, often at great personal risk. We never hear about these stories, but at what cost? On Making Peace Visible, we speak with journalists, storytellers, and peace builders who are on the front lines of both peace and conflict. You can find Making Peace Visible wherever you listen to podcasts. Okay. I'm going to turn this over for questions and I'll let you start because you told me you wanted to ask one.

Yes, to you or does it matter? Be waiting. Okay, sure. Yes. I'm around all the time. Yeah, it's all good. Yes, I have two questions. The first question is you mentioned about the presidential pardon.

I have a concern with all these presidential pardons that Trump has been doing with the January 6th people and also with all the people that got him into power. Do you think it's possible that he is trying to create his own personal army similar to what happened in Germany in the 1930s with the Gestapo? And the second part of my question is I see a parallel with what's happening right now with this administration, like with the Weimar Republic of Germany in the 1920s. Then Biden was considered the Weimar Republic, which was not a very strong government. And now this government has gotten very autocratic. And I'm seeing that it might evolve eventually later on into the fourth. One of my rules is never talk about Nazis and Hitler in comparison to American politics.

I just never do it. I think it shuts down people's brains and it is also not a fair comparison. I have lots of grievances with Donald Trump. I don't think he is like the Gestapo. I don't think he's like the Nazis. So I don't buy the analogy at all. But as I said in my conversation with Bob, I think these pardons are bad.

But I don't think we're, it's a useful analogy to Weimar. Do you have a theory as to why Trump pardoned Silk Road's Ross Ulrich? You know, that's a great question. I think, I mean, that's another post-presidential. I think, you know, he is, you know, I think one opportunity he sees is sort of the Joe Rogan, tech bro vogue, which he's done very well, which he did very well with and continues to be a big

source of support for him. Elon Musk is sort of adjacent to, if not part of that. And I think that part of the Silk Road guy, you know, comes out of that world. Tell people who don't know what... It's a very complicated case. He was a internet entrepreneur who operated mostly out of New Zealand towards the end. And basically his website was used in sort of the early crypto days for various criminal activities. He said it was, he didn't know, but he was convicted in a variety of crimes. But he's internet adjacent.

And I think that's part of why Trump pardoned him. Sorry, now while there's a political scene to make this happen, how would you think the pardon power should be corrected by them? I love this question. It's like, should we get rid of the pardon power? Look at all the, you know, I wrote this whole book with all these terrible parts there, I don't think the pardon power should be changed. I think it is good the

way it is and for a very specific reason. As I mentioned earlier, there are 150,000 people in federal prison. If you look at the political pressures on all the branches of government, it always pushes them towards more incarceration, more people prosecuted, more people in prison. The pardon power exists as a possible counterpoint. The best use of the pardon power, in my opinion, in recent years came in Barack Obama's last term when he established a process for reviewing the sentences of low-level drug dealers and wound up commuting the sentences of about 1,500 of them. A pardon wipes out a conviction altogether.

A commutation simply allows people to get out of prison. As long as the pardon power exists, there is at least the possibility that some of those 150,000 people should get out. So I don't want to change the pardon power. I just want better presidents. So here and then I'll go over there. Do you think that given how he's already used the pardoning power that we can see more of this coming out during these next four years?

100%. 100%. One of the things he's learned is that he can get a lot of attention, reward people for and, you know, and troll liberals. You know, his first pardon was of Sheriff Joe Arpaio, his racist sheriff in Maricopa County, Phoenix, Arizona, but you know, was a famous anti-immigration figure. And he now realized, and think about it, you know, the January 6th pardon were just the beginning.

Then there were the anti-abortion people. Then there was then there was Blagojevich. Then there was the Silk Road guy. We're gonna see this throughout his presidency. And has that ever been done? I mean, you mentioned that most presidents have used them at the end where there's no culpability, whatever. Lincoln used them throughout. But I mean, you know, Lincoln was dealing with a rather serious problem of this civil war.

Yeah. So I think it... The military justice was really not very just. It was terrible. Yeah. And so he just kept pardoning deserters after the army sentenced him to death. But the desertion could be showing up three hours late. So is that true? I didn't know that. So I just think there's going to be more.

Can I just add a point to that? Which is when Gerald Ford, quote, healed the nation with that pardon, I'm wondering if there's a quid pro quo to these pardons that leads to his question. Well, you know, that one of the great questions about the Ford pardon of Nixon was, was there a quid pro quo? Was there a deal between Nixon and Ford? You know, you give me the presidency, I'll give you a pardon. And I believe very clearly there was not, there was not

a deal. There were Ford, first of all, he wouldn't have done it because it was not consistent with his character. But also, by the time Haig started making overtures along those lines, Nixon was doomed anyway. The bad tapes had come out. There were not votes to save him in the Senate anyway. So Nixon didn't even have any cards to play for a deal. So I really just think that is, and Ford did something that is largely forgotten now, but as a result of the storm over the pardon of Nixon, he became the first and only president in American history, and David remembers this.

He testified before the House Judiciary Committee. He went up to Capitol Hill, raised his hand, took an oath, and described the whole pardon process and why he testified and why he gave the pardon. And in my view, he told the truth. I don't think he was right as a moral, legal, political question to grant the pardon, but I think he was telling the truth about why he did it. And there was no deal. So I read an article this morning on Russian and politics, then it touched on the American, Americans were worried about Trump's external power and it states how 52% say he'd gone too far

in using his presidential power. And in Paranormal Free State's reporters say he's been handling his presidency, it's been in line with what they expected, but 25% say that he's handled it in unexpected way. So my question to you is, given that Donald Trump has a reputation of being so transparent, especially during his campaign saying exactly what he was going to do once in power, why do you think now there's a percentage of people who are shocked by what he's been doing?

And do you think this will reflect his popularity with the American people throughout this four years or it won't make a difference in how he handles his presidency? Well, I think how he handles his presidency will have an effect on his popularity. I mean, if the economy tanks, his popularity is going to go down. If his economy does great, it'll go up. So I mean, what's the famous line? Harold McMillan, the British prime minister asked about what affects the future and he

said, events, dear boy, events. Stuff happens and if he does a good job, that'll affect his popularity. In terms of his current popularity, he enjoyed a burst of popularity right after the inauguration, which most presidents do. He seems to be regressing to about where he was in his first term, which was in the low 40s percent popularity. You know what? He's still a president and he's got a very complying Congress and it doesn't really, as long as his popularity is in a broad range and as long as Republicans are afraid of him and are afraid that if they get out of line, he'll

support a primary opponent to them. That's more important than these minor fluctuations in his popularity. But given that he has been doing what he's been saying he was going to do, why do you think the American people are now shocked when they voted for him? Well, I mean, remember, not everybody voted for him. I mean, it was a pretty close election. And I think a lot of the people who say they were surprised are just angry

about the president, angry about what he did. I don't think they're necessarily surprised that Donald Trump turned out to be a president they didn't like. They're just angry in general. And so they say they're just, so I would, I mean, you know, I'm with one of the great campaign professionals of our era. I don't think you can, you know, parse polls that carefully about what people believe and why to know exactly what...

It's hard to make broad judgments based on questions like that. Yes. What do you think about the current education? Do you think there will be any resistance from the other branch? Or I just think it's gonna be difficult for him to, it's gonna be more difficult than he thinks to pull part of Obama for it. Wasn't the Department of Education established by law?

Yes. And can it only be disestablished? This is part of the question about USAID too. There are programs within the Department of Education, for example, Pell Grants, you know, supporting scholarships for students, federal money for that. As long as the student loans continue to be distributed, it doesn't really matter whether the Education Department does it or the health and human services department does it. So, that I think it's important to draw a distinction between the programs that are specifically

authorized by Congress and the bureaucratic superstructure. Now, what always happens when you abolish an agency or make dramatic cuts is the program suffered too. I mean, you see that in USAID. They're saying, well, we're going to continue to send, you know, we're going to still be a generous people. It's not working out that way. So Republican presidents, since Jimmy Carter created the Department of Education have said they were going to abolish it and it's never happened.

But I think the- In fact, Kuh could argue George W. Bush actually enhanced it. Absolutely, with No Child Left Behind, which was one of his signature laws. But I think the most important thing to keep an eye on is, are the programs that help people intact? Because I think that matters more than, you know, whether the assistant secretary is an assistant secretary of education or assistant secretary of something else.

Okay, if we can do this quick, go ahead. Yeah, just two-part question, you're up there. And I'll answer in four parts. The first one is, is why do you think that the presidents now have been moving the pardons towards almost the end of there? And the second question is, I didn't get to read the book yet, so what's the most egregious pardon that you talk about or you haven't talked about in the book?

Well, the most egregious is January 6th. I mean, it's just by far the worst, especially given the magnitude of the criminality, you know, the violence and the number of people. I mean, it's a lot of people. And so, that's easy. I'm sorry, the first part of your question was why did I put them at the end? Well, I think it's significant because they know that pardons are aberrations from our normal processes. We profess to believe in equal justice under the law, everybody gets treated the same way, but the pardon power singles people out for special benevolent treatment. If you look at who gets the pardons, they tend to be people with some, sometimes unsavory

connections to the president. So they want to do it at a time when there can't be any real political accountability. And that's why Mark Rich was at the end. That's why the Iran Contra pardons were at the end. And that's why Trump's first term pardons, you know, why his, you know, Charles Kushner were at the end. I think what we're seeing now is Trump is at this moment of great bravado where he doesn't have to wait till the end.

He's flexing his muscles and he is so much in control of his party that he's not worried about any political consequences. We'll see if that continues. But that's why he's doing it all along. Jeffrey Toobin, thank you for a lovely lecture. And let me thank all of you in our audience here. Thank everyone who's watching on Zoom or Facebook Live. And everyone who will hear this on an episode of our revamped podcast, Let's Find Common Ground. Thank you for joining us on Let's Find Common Ground. If you enjoyed what you heard, subscribe and rate the show five stars on iTunes or wherever you get your podcasts. Follow us on social media at USCPOLFuture.

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