Open Book with Anthony Scaramucci - Would You Pardon Him? With Kim Wehle

Episode Date: October 16, 2024

This week, Anthony talks with Kimberly Wehle about her book 'Pardon Power' which discusses the complexities surrounding the pardon system in the United States. She explores the historical context of the pardon power, its potential for corruption, and the implications of demographic shifts on political dynamics. Kim emphasizes the need for checks and balances on the pardon power, critiques the role of the Supreme Court, and advocates for reforms to address systemic issues in the criminal justice system. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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from authors and historians to figures and entertainment, neuroscientists, political activists, and of course, Wall Street. Sorry, I can't resist. Before we get into today's episode, if you haven't already, please hit follow or subscribe, wherever you get your podcast, and leave us a review. We all love a review, even the bad ones. I want to hear the parts you're enjoying or how we can do better. You know, I can roll with the punches, so let me know. Anyways, let's get to it. My guest today, Kim Whaley, has written an incredible book about the pardon system in the United States, how it is used and abused, its true power, and its potential for corruption.

It's a conversation that's at the center of our democracy right now. And we need to listen to Kim. I'd like to take a second to recommend my friend Andy Astroy's great podcast, The Back Room. Every episode is a fun, incredibly honest take on our society, and the political situation, along with some brilliant guests. I've been honored to join Andy on the show, and you know anywhere that accepts me with no filter deserves a shout-out. So joining me now on Open Book is Kimberly Whaley.

She's a former assistant U.S. attorney, legal expert for CBS. She's a constitutional scholar and professor of law at the University of Baltimore. But the title of the book is Pardon Power, How the Pardon System Works, and Why, which is very timely, I might say, Professor Kim. It's great to have you on. Obviously, I'm a big fan of you and your previous books, but for our listeners, provide some context. Give us a little bit about your background, how you got to become a professor, and then we'll get right into the book. Yeah, so I practice, both as you mentioned, as an assistant U.S. attorney. I was also a lawyer and associate independent counsel in the Whitewater investigation, investigating the Clinton family under the late Kenneth Starr. And After several years, I ended up with, you know, having four children and transitioned into a legal academic world. And when Donald Trump took office, I mean, I've been writing in scholarly journals, et cetera, when Donald Trump took office, I was reading the New York Times on a Sunday. And there was a statement in the New York Times that said the pardon power is absolute and there are

low limits on it. And, you know, I know you're, you're a, been to law school. I was like, no, that can't be right. It's always, it depends. It's always balancing against other limitations. So I wrote my first op-ed for the Baltimore Sun, and that just kind of snowballed into more opinion editorials. You know, I now write for the Atlantic and Politico and Bulwark, you know, hundreds of them at this point. Radio, and then CBS heard me on the radio, and then CNN heard that and MSNBC. And now I'm actually, for the last couple of years, been with ABC. But it's all around civic education and breaking down these concepts into English.

And it's produced also these, now the fourth book. I was writing a scholarly book for Cambridge and realized the audience was different. And that was how to read the Constitution and why Harper Collins took it in 24 hours when they got the proposal. I think understanding there's a real problem here. We don't know how the car works. We can't exactly fix it. And then there was a book on voting. My third one was on problem solving like a lawyer, which sounds like an oxymoron.

But you have to understand your opponent's point of view. You have to be ready to compromise. You have to take into account the policy or the value system. behind the law, all of those things that we don't do in regular parlance. And then this last book, it's a different publisher, but they approached me for this sole, you know, another installation in the and Y series, not the how-to books, the Y-2 books. And the pardon power, I don't know if you agree, is kind of at the center of the storm. I mean, we can't dodge it in the next six months, whether we like it or not. And it's a disturbing remnant of a monarchy that really, in my view, has no place in

American law, at least as it's currently functioning at the federal level. Well, I think it's been corrupted, by the way, but we'll talk about that in a second. Let me just step back and I want to get your reaction because I'm fascinated by this, so I've read the book and enjoyed the book. And I want to go back to Julius Caesar for a second because Caesar comes into Rome. He crosses the Rubicon. He takes over. He becomes an absolutist. He becomes a dictator or monarch or somebody that has absolute power. He's above the state. And he starts offering out pardons to his adversaries. And so this has been a political device for several millennia. It's a device to bring people together that are sometimes at war. This is the device that, you know,

Lincoln said he didn't have to use it, but he effectively was using it at the end of the civil war, pardoning generals and other people, try to get the union back together. So there is usefulness to the pardon power. And so I want to ask you that, following question. And then I'm going to make a, I'm reading your book. And my reaction to your book is, well, there are usefulness. There's a reason why this idea evolves from monarchy or from Caesar deployed by other successful statesmen, but it's now been corrupted. I think that's right. Yeah. And, you know, and so Donald Trump has corrupted it. And so I'm just wondering if it needs certain checks and balances like everything else does where, okay, you can't just whimsically, you have this

absolute pardonability, which if you get it in the hands of the wrong person, it becomes very, very dangerous. And so what's your reaction all that? Well, I think two parts. Yes, I agree with you that, I mean, it goes back to the code of Hamarabi. You know, it's in every country in the world except China. So there's something foundational about government, about justice, maybe. I mean, in common law, England, it came on the scene in the seventh century, and there wasn't a jury trials until the 13th century. And there were a lot of death penalties for, you know, sentences for low-level crimes. And a lot of justice was kind of retaliatory between private warring factions. And the king came in to administer justice in certain circumstances to the worthy. And that still is the concept,

I think, that we hold on to as positive. But since Reagan, with the exception of Biden, Obama, every president, including Clinton, have run on this tough on crime stance. We spend approximately $8 billion in taxpayer money a year to imprison people. And there's no mechanism to get, since there's been no parole at the federal level since the 1980s, there's no mechanism to adjust for, you know, false positives for keeping people that are innocent in jail or keeping people in there for a long period. So in theory, Kamala Harris, if she were to win, you know, win, end up in the White House in January, and I say win in quotes, because I think we're going to have debate over that

falsely. She could decide, listen, I have this power. I don't have to deal with Congress. I don't have to deal with agencies. I don't have to deal with states. I don't have to deal with lawsuits. I have this power. I'm going to use it in a way to administer some fairness and justice in a deeply flawed criminal justice system at the federal level because I can do it. And I know a lot about it having been a previous prosecutor. Part of the reason for the book is to have that conversation. That could happen. But that's not what's happened. Barack Obama, kind of a minor or limited commutation policy in the, I think, 2013, 2014 involving low-level drug offenses. So it's happened, but not on a meta-level. And on the meta-level, as we saw in the last administration, and it wasn't just Donald Trump, but he took it

to a pardon-palooza level, like, you know, real, real corruption. It's, it's pay for play. It's, you know, this avalanche of pardon requests, you know, Rudy Giuliani pedaling him for two million dollars a pop, six members of the United States Congress seeking pardons for January 6, pardoning Paul Manafort, pardoning Roger Stone, who the judge raised eyebrows at us, you know, in a hearing around that pardon because it was ostensibly to keep these people silent in connection with investigation to the president's own wrongdoing. And then I hope we can talk about it. We have the Supreme Court coming in and manufacturing criminal immunity for presidents if they use official power. And if they're going to do that, they're going to need people to execute their

orders. How do you do that? You pardon them. So the pardon power has now, based on that as decision, it is now a green light for not only extraordinary corruption, but a crime gang in the White House. And it's been insulated throughout this mythology of pardons being unlimited, plus this ridiculous immunity decision. So I agree with you in theory. I just think it's gone off the deep end in the other direction. And we've only seen how nefarious it can be, thanks to, our friends in the majority on the Supreme Court. Okay. So I have a theory that I want to test on you. And it's a pretty bold-faced theory. So, you know, I know we're in this culture now where you have to be very sensitive, but I'm not that sensitive. So I have a theory that whites are threatened by

black and brown people. And at least a group of whites are. And I have a theory that the democracy works as long as the white people are in charge. But if the demography is such where black and brown people are going to be the majority of the demography, and therefore they will end up running the government, well, then that's not good. Let's switch the rules of government and let's keep the white people in charge. And so there's a group of them. I think Donald Trump represents them, frankly, if I could be bold enough to say that to you. And so now we're watching the scissors come out and we're cutting things a certain way so that they're manufactured a certain way. This immunity case is an example is an example of that in my mind. So what have I gotten wrong? Tell me how I'm completely wrong

and tell me that I'm living in a reality distortion of my own mind. I wouldn't say either of those things. The only thing I would do is at, I don't think it's just black and brown people. I think it's women, too. Women too. Yep. I'm sorry, black, brown and women. So Kamala Harris, she represents a direct threat. And I think I should point out that I have endorsed her for president and I've worked for her. I've been in the spin room for her in the debate and I'm doing some debate prep with her. she's going to debate Trump again is my prediction. But I interrupted, Bougat. You said it's not just black and brown people, it's women and then continue. I'm sorry. So, I mean, I have two answers. One is from the demographic, you're right. And the last statistic I checked, people under the age of 16 are primarily black and brown. So just literally the generations coming through, the numbers are such that it's not going to be white and it's not going to be male. Now, as far as, okay, so is there, is there a backlash? Is there a reaction to this? Not only in the representations of the, the two presidential candidates coming November. But we have the United States Supreme Court again, reversing Roe versus Wade, which is putting women's basic health care. Their access to emergency

room care is being denied by virtue of an immutable characteristic of birth that is having a uterus, which to me is counterintuitive to anything around liberty, justice for all. And then you have the Supreme Court's basically declaring affirmative action on constitution. And in that decision, I mean, people talk about and can debate whether affirmative action is helpful or harmful for minority, you know, traditional minorities in the academic field. But if you read that decision, Anthony, the court declared the Constitution colorblind. The court rewrote Section 14 of the Constitution, which was enacted following the Civil War to bring black and brown people who had been enslaved into the union as human beings. And the court has now declared any, any interpretation of that that takes into account. addressing past discrimination or tries to put people closer to the same starting line as white males. White males with money, no offense to you, were the only ones who had any agency at the time of ratification of the Constitution. The court has now said interpreting equal protection in a way that's about remedying past discrimination is now unconstitutional, unconstitutional. I think we're going

to see, and I've written a whole law review article on it, in the University of Maryland Law Review this spring, I think we're going to see a cascade of the Supreme Court rolling back civil rights protection. So this isn't just, it's a metaphorical, theoretical, spiritual, symbolic thing that's happening with Kamala Harris and Donald Trump true. It's also literally happening in this packed Supreme Court, thanks to another white male, Mitch McConnell, who, in a Machiavellian way, managed to essentially lock down the United States Supreme Court for generations, to your point, because they're not, they are not having to respond to voters. When these black and brown kids become voting age, they can't do anything about the Supreme Court. It's anti-democratic. So what you can't do

with the ballot box, yeah, they're doing it by changing the system. And it's, it's at every level. I mean, we could talk for hours about it. I don't want people to get terrified around it. It can be addressed, but it can't be addressed if people don't even know what's going on. Well, I'm going to blame one other person if you don't mind. and he's deceased now, and I liked him, but it's Harry Reid because, you know, just for the constitutional historians here or the Senate process people, he gave up the filibuster move. And McConnell told him, if you do that, you're going to regret it. And he did it anyway.

And McConnell ended up using it against the Democrats and getting these nominations through without a two-thirds vote as they once used to go through at. Right. He did it for the lower federal judges. and then McConnell said, fine, I'll do it for the Supreme Court justices. But out of add, a living person, to Barack Obama didn't really even make a speech when McConnell stole Merrick Garland's seat. So the Democrats were behind the ball on this and didn't push back. And I'm on record as having, you know, assigned that criticism.

They could have played hardball, I think. Well, I mean, but also, I mean, listen, McConnell was incredibly hypocritical because he had the Garland nomination. It was six months prior to the election. He said that we needed to wait. And then a few weeks prior to the election, he's got Justice, I guess her name is Barrett, Amy Barrett. She comes in a few weeks before. And so it's the height of hypocrisy.

It creates all the cynicism in the American body politic. But I want to go to this if you don't mind because it's embedded in the pardoning aspect. You're writing this book, at least the way I saw it, you're writing the book to explain that there's worthiness to pardon power, but it becomes unworthy if you're going to corrupt it or put it in the hands of very bad people. And so therefore, the process has been, in fact, corruptive. And so what do I have wrong? Is that, is that fair? Is that a fair assessment of your book? Yeah, I think that the pushback would be, well, the framers did it, right? The framers put into the Constitution Article 2, a pardon power without a lot of restraints. But they also kind of thought it would

only be white males that they know that would be in charge. And I also argue that the Supreme Court and the public, frankly, and even legal scholars have somehow allowed the pardon power to have a mythology around it that it doesn't have limits when any other power. The commander and chief power has limits. The power to execute the law has limits. The power to make treaties has limits. Everything else that is supposed to be core power has limits. But even in the immunity case, counsel for the government for Jack Smith didn't push back at the at the conservative justices' statements that the pardon power would be a core power for which the president could commit with which the president could commit crimes with impunity. So you're right that it,

my argument is it does more harm than good. It's not doing the good that it could do. But I also argue that part of that is the mythology again around this as somehow being a relic of King George III, whose pardon power was constrained at the time of the ratification of the Constitution. He shared it with the church. Parliament had pulled back on it. So my argument is it needs serious attention and all power has to be checked by other branches, all of it. So it's, okay, what can we do short of a constitutional amendment? And I make arguments for what can be done. But the threshold thing is we have to stop ignoring it because it's now become a real, monster, a real, to your point, if it's in the wrong hands, it not only could be corrupt as to

individuals, but it could be used to use the massive power of the presidency and now this official power to commit some serious crimes because you can immunize your deputies now using the pardon power and they wouldn't be covered under immunity. Yeah, no, it's interesting because, you know, Nixon, whatever we both think of Richard Nixon, he did believe in the Constitution and he believed in the process. I mean, he could have Ben Trumpian pardoned himself and pardoned his people around him, but he complied to the checks and balances in the system. And so you now have to wonder how we made it 250 years without having a rogue player come in that was morally bereft and that would take the system and use the system

to their advantage as opposed to respecting the system. But I want to talk to about Justice Roberts for a second if you don't mind because I followed his career with some. some level of admiration, and I'll give an example of this. He wrote the opinion on Obamacare. Whatever you think of Obamacare, whether it should be or shouldn't be, what he did not want the court to do was to come into the political process. You had the executive branch and the legislative match that voted it in. And so he wrote the case to treat it as a tax. And therefore, if it's a tax, it would fit and conform to certain things. And it was a little bit of a manifestation on his part. But I think it got to the point that I think he wanted, at least at that time, 10 or 12 years ago,

to depoliticize the court and to maintain the integrity of the court. We're now fast forward. It's 12 years later. He doesn't seem to be doing that anymore. And I'm wondering, as a constitutional scholar and a professor, if you could opine on that, am I wrong about that? And if I'm right about that, then what's changed about the court and what's changed about Justice Roberts? You're not wrong about that. I just want to make one note on your last comment about Nixon and a plug for the book, as you know, John Dean, Nixon's White House counsel who famously said there's a cancer on the White House, wrote the forward to my book. I was just on a panel with him in the 50-year anniversary of Ford and the pardon at the University of Michigan. He says the difference between Donald Trump and Richard Nixon,

is Richard Nixon had a conscience. So that's, and that everything Nixon did would now be protected. There would be no criminal liability. There would be no Watergate. There would be no resignation. there would be none of that because it's now all immune. So we have seen in the last, over the last summer, a change in the trajectory of constitutional law. I mean, we have so a witness to it say it would have been completely different. I'm a lawyer. I've read the opinion. On Justice Roberts, yes. I mean, he not only, there was a front page article in the Sunday Times, New York Times, about, you know, how he rested the opinion in the immunity case from Justice Alito, maybe because Justice Alito's wife and himself. It's his property has stopped the steel signs now,

made public that so maybe there was at least an appearance of conflict of interest. But he also wrote the decision in the Section 3 case, basically deactivating the 14th Amendment, which expressly says you've engaged in insurrection and a rebellion. You can't hold office again if you've taken an oath. So these are, this is an originalist, a textualist, someone who pretends to pay attention to the plain language of the law and the history and rationale behind it. It's both of those decisions are, and the, and the section three got, you know, a bigger majority. I mean, there wasn't, there was some concurring opinions, but, um, it's not intellectually honest pursuant to their own jurisprudential philosophy. I mean, if you're a textualist,

you're an original is fine. Um, but then do that. Do that across the board. They're not. So I don't know. I've been asked this a few times. I think, you know, he was in the White House, Brett Kavanaugh, who I knew in the Ken Star investigation, excellent, brilliant lawyer, also under, worked for Bush. And it seems to be there was a deep, it's one of two things. It's either, or maybe both, a deep skepticism of prosecutors. The idea is, okay, now this has gone forward against Donald Trump. It's going to become a ping pong ball. These rogue out-of-control prosecutors are now going to be indicting former presidents based on politics. The problem with that, of course, is there's a lot of checks and balances against limiting the excessive power of prosecutors, including grand juries,

you know, proof beyond a reasonable doubt, appeals, all kinds of things. The other alternative was they are political. That it's, you know, heads we win, tails you lose. So this is a Republican president. We don't want to see Donald Trump indicted or constrained or the Republican Party indicted or constrained. So we're going to say certain things are official, including or relating to, you know, January 6th, those can't be prosecuted, but we're not going to do the same thing for unofficial acts. We're not going to draw any boundaries and say, this is definitely unofficial. So if you find anything that Donald Trump did that's unofficial under our definition, go for it, Jack Smith.

They were, you know, eerily silent on that topic, which to me suggests, Anthony, that there's some politics going on, that, you know, that they might be biased and corrupted. And that's very disturbing as someone who has to persuade law students every year that this system is something we should have a lot of respect for. Is there any going back, professor? On immunity? Or any of it? Is there a re-engineering of the process?

Is there a renewal, an American renewal, that would sort of re-fortify the planks of the Constitution, provide some guardrails for the pardoning situation, and to, you know, I mean, it's in the decision of the courts. You could, of course, legislate, be the right legislature. The court's interpreting the law, right? but you could put law into place that redefines immunity, right? Well, you know, the question is it comes back to the Supreme Court. So if if Congress were to try to do that, they might say, no, you can't constrain the immunity

because we've now declared it as a matter of the Constitution. I mean, as you know, when the court interprets the Constitution, it's like amending the Constitution. But that goes back to Marlborough v. Madison, right? So they gave themselves that power in 1803 in that landmark case. And I know you're an optimist. and I like to be optimistic. I was at a presentation of a colleague of mine who's doing a lot of research into Justice Marshall

when he was a lawyer and all of those primarily African American lawyers who were the masterminds behind Brown versus Board of Education and all of the innovation of the Warren Court where we saw an expansion of rights, not a narrowing of rights. And he said, I asked him, I said, how did they do that? And can we do that today? And his answer was they did it not just by going to court. They did it by engaging with the communities so people were aware of the issues, understood what was coming up through the courts before they filed their lawsuits. So it was a multi-tiered approach to what they were fighting for. People had buy-in within the

population that then somehow trickled into the court system and into the justices. You know, these are human beings, these justices. And we've seen justices over the years kind of shift in terms of their political innings, we're already seeing it, arguably, with Justice Barrett. You know, she filed a concurring opinion in the immunity case that could have been a dissent. She decided to call it a concurring opinion. So I think it's possible through the courts. I'm a big fan, you know, and I've been out saying this, I think there needs to be a constitutional amendment, ideally to put the Constitution back where it was in June prior to the immunity decision.

I would add a right to vote. There's no affirmative right to vote in the Constitution. if that were there, which surprises people. I think the Supreme Court couldn't do as many shenanigans as they're doing. And I think there could be, we could be more express about you can't use pardons for purposes, whether it's for yourself or whether it's for your cronies. Congress on the pardon, though, could ban lobbying for pardons. They could say, you can't do it.

You can't sell pardons. You can't use your access to the White House and your promises of donations once the president and finish his office or in their next campaign to get pardons for yourself or your friends. I mean, so there are things Congress can do. Congress could require a record of pardons, could say you've got to you've got to put in writing who you talk to and what a rationale for the pardon and why you turn down other applications. We don't have that. So there's lots of things we could do. But again, it's not going to happen if people just reactively assume that it's a king like power that's untouchable. I want to ask you to react to one other thing and then we'll get

to the culmination of this is the, and I try to put this as delegately as possible, but it's not just Donald Trump, meaning that you could say, okay, Trump hijacked the Republican Party and all of this stuff got corrupted, but you can't get a Donald Trump unless it's bubbling up from somewhere, unless there's this discontent that is bubbled up. And it's now almost like a virus. It's infected a lot of different people. A lot of people would righteously defend what's happening right now. And so, So I guess, you know, I'm looking for, not saying that you had the answer, Kim, but I'm looking for, how would you defend? How would you rebut this? Like, you know, let's say that I'm Vice President Harris as an example, you know, what do I say about my use of pardon power and what do I say

about trying to redirect things back to something that was a little bit fairer, more system-related and less personal? Because you know from the law, right? What did Cicero? say, we are all slaves to the law in order to be free. We have to subordinate ourselves to the legal structure. Once a few of us become above the legal structure, then the whole trust in the system goes away. So role play for me, be Vice President Harris. What would you like to, let's say she wins. What would you like to hear her say as president? What would you like to hear her do to try to get the system back in order? I feel like I'm a legal chiropractor and the spine is out of whack and we've got to crack it back into place. What would you like her to do? Well, as you know,

there's not a lot that a president can do to ways of their magic wand. I think that's a mythology. But pardon, they could. I mean, she could say, listen, we're going to do DNA testing on everyone on death row in the federal system. And if there's exonerating evidence, demonstrating that they didn't do it, we're not going to, we're not going to execute people. I mean, she could do that, right? So there's that that with respect to specifically the pardon power. I said Obama did a review. of low-level drug offenses that involve no violence and that under the modern sentencing, they would have gotten a shorter sentence. And he pardoned or commuted, you know, hundreds, well over a thousand sentences. That's doable. Joe Biden pardoned people with low-level marijuana

offenses. So, so there is good that could be done. George W. Bush, when he left office, was disillusioned with the pardon power because of all the lobbying for it at the end of each term and said, you know, president should announce a policy and stick to it. That's not Congress. That's a president doing that. You know, you're closer to politics. So I don't know the, you know, the complexities of doing something like that from a personal level. On the other thing, Anthony, you know, so many people believe this, it's really mind-blowing to watch that debate between Kamala Harris and Donald Trump. And, I mean, again, I have four kids. I watched it with my youngest. And that we are to understand how we can still be so split and divided as a country and of being such. a close race. I mean, not only in terms of, you know, the corruption, the criminal indictments, the conviction, the hate, the cruelty he's exhibited, but also just the cognitive decline. I mean, you have to really wonder if he's even capable and competent. And I'm not a professional, mental health professional, but others have weighed in on this. And I have to wonder if it has

to do with something. Maybe she could do something about, or at least spearhead or make it a priority. And that is misinformation and disinformation. I mean, our, you know, at the time of Watergate, there was one set of facts. You know, the Washington Post reported what the New York Times reported, what, 60 minutes reported, right? And the public turned on Nixon once the dirt came out, and it came out through the courts, which would probably now not happen given the immunity. And that is, you know, his, his oval office tapes with all the crimes that were recorded on the oval office tapes. Now, each of us gets tailored information fed into our mini computers we hold in our hands using algorithms we don't understand that just reinforce what it believes our biases are. So,

I mean, when I was a kid, you'd go to the encyclopedia and the card catalog to learn information. Now we have way too much. And our kids don't know how to sort it and we don't know how to sort it. We don't know how to teach them how to sort it. So, So, you know, and the framers understood that, you know, that kind of populism based on bad information was really dangerous. It's why we don't have a, you know, just a direct democracy where we just vote for the laws we want. We have a representative democracy for that reason. And Madison said, point your Cicero, you know, if Medmore Angels, we would not need government. The idea being we have to constrain our worst instincts.

And the way to do that is at the ballot box. But if people are being lied to and they don't know how to tell truth from lies, I don't know how we get around that. So I think we need Congress and we need a president to step in. We also have a mental health crisis, particularly with our young girls, to step in and do something about that cancer, which is not just domestic. It's Vladimir Putin. It's enemies across the globe. TikTok Chinese. I don't know how we get around that without law.

I really don't. Well, I mean, listen, it says it's very tough because we now have conspiracy theorists saying that ABC News corrupted the debate. And then you have billionaires on piling on platforms like X saying that. I mean, geez, I don't know. I guess it's one of those weird things. Well, maybe AI will save us. I don't know what you think about that. But I know everybody's afraid of it.

But I think, you know, it's not motivated by money and power. Yeah. Well, maybe. Maybe. I don't know. Let me ask you, I know we're running at a time, but I have five words that I'd like you to react to like we did in my last podcast. So are you ready? Yeah.

I say the word justice. You say what? I say the Constitution as originally understood to limit the power of any one person in America. Okay. I say the word democracy. It's the inverted triangle. A monarchy, the king is at the top. You flip it.

That's a democracy. The people are at the top and the power trickles down to the president. Okay. I say the word power. Power is corrupting if men were angels. We would not need government. Okay. Dictatorship. It's a word we have to take very seriously, and that is the vision for America offered by the Republican Party, and we should call it like it is and debate it for what it is. Okay. Very well said. I say the word pardon.

Excuse me. I don't have pardon my French. I'm worried about the pardon. Not so much if Kamala Harris gets in office, but I would say we are incarcerating thousands and thousands of people, improperly. the racism endemic in our system is troubling. University of Michigan has a database on exonerations, which are judges coming in and saying somebody was wrongfully convicted. 50% of them are people of color when 13.6 of the population involved are people of color. So parting could be used for justice if there was a president with the courage to do it. Well, phenomenal rendition. the title of the book from Professor Kim Waley, the title, Pardon Power, How the Pardon

System Works and Why. Thank you so much for joining us on Open Book. That was great. Thank you so much for having me. Well, you just heard from Kim Waley. She wrote an amazing book about the pardon system. Great attention to detail in this book and great history. And also, there's a need to reform. And I think one of the things that's happened with Donald Trump coming into our world, we have to say to ourselves, okay, what would somebody do in a system who is a gentleman? And what would somebody do in a system that is actually not a gentleman and willing to break the rules? And unfortunately, there are norms in our system that we have taken for granted, frankly. We assumed that people that would rise to power in the United States wouldn't break these norms or tradition. So a result of which we have

to add more protective power to the system so that we don't get a corrupt situation. I mean, this sounds crazy. We just imagine a situation where a president says, okay, go out there and break the law on my behalf. And when you're done breaking the law, no problem, I will write you all a pardon. You know, none of us thought that that could ever happen in the United States, but we now have to start thinking about that. That's why I encourage you to go out and buy Kim's book if you have an interest in this sort of stuff. All right, you want to come on the podcast? Yeah, go ahead.

All right. My guest this week, Ma, wrote a book about the pardon privilege. So let me explain what that is. If you're the governor of the state of New York, you can stay somebody's execution. Like, let's say there's a death penalty, right? Or, you know, you can pardon somebody from a crime. Let's say you're the president of the United States. There's even a thought that the president could pardon himself.

So I don't go for that. Okay, so that's what she says in the book. She doesn't like this. She says it's people like Donald Trump could end up using it for the wrong thing, right? So example, he could tell his people to go break the law. and then when they're done breaking the law, he can pardon them. So what do you think of that, Ma? I don't think he would actually do that, though.

I think he would pardon himself have been trying to find out about him. He would pardon himself if he did something wrong. He would pardon himself before he would pardon anybody else, basically, right? Yeah, I think he's very self-centered, so I think he would make sure that he sailed through it. Okay, so let me say this to you, though. Do we need to change a system like that that gives somebody that much power? Yeah, I think so. Yeah, definitely. Okay, tell me why. Because if the president of the United States is a bad example to our country, and they do things wrong and they pardon themselves and the other people could do it too.

It gets the other people that are criminals, the right to become criminals. It's a bad precedent, right? Yeah. Mm-hmm. All right. Our presence of the United States should be pretty good. So the other... Right, but you got to set it.

a good example is what you're saying. And if you allow for things like this, it makes people think the system's corrupt. Is that right? Yeah, right. That's not like it. All right, what else? By anything else you want to say today before I let you go?

No, that's it. You're all right? That's it, back. All right. I love you, Mike. All right. Love you, baby. Bye.

I am Anthony Scaramucci, and that was open book. Thank you for listening. If you like what you hear, tell your friends, and make sure you hit follow or subscribe wherever you listen to your podcast. While you're there, please leave us a rating or review. If you want to connect with me or chat more about the discussions, it's at Scaramucci on Twitter or Instagram.

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