The Daily - The President and Pre-Emptive Pardons

Episode Date: December 4, 2020

The power to pardon criminals or commute their sentences is one of the most sacred and absolute a president has, and President Trump has already used it to rescue political allies and answer the pleas of celebrities.With his term coming to an end, the president has discussed granting three of his children, his son-in-law and personal lawyer pre-emptive pardons — a rarity in American history. We look ahead to a potential wave of pardons and commutations — and explore who could benefit. Guest: Michael S. Schmidt, a Washington correspondent for The New York Times. We want to hear from you. Fill out our survey about The Daily and other shows at: nytimes.com/thedailysurveyFor an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Read the latest edition hereBackground reading: Speculation about pardon activity at the White House is churning furiously, underscoring how much the Trump administration has been dominated by investigations and criminal prosecutions of people in the president’s orbit.The president’s pardoning of Michael Flynn, a former national security adviser, signals the prospect of a wave of pardons and commutations in his final weeks in office. For more information on today’s episode, visit nytimes.com/thedaily

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. In recent weeks, the president has been discussing the possibility of pardoning his children and his lawyer to insulate them from crimes for which they have not yet been charged. My colleague Mike Schmidt explains. It's Friday, December 4th.

Mike, tell me about this reporting that you have been up to since Donald Trump lost reelection? I've turned my focus towards the question of pardons, the president's ability to end people's sentences in prison and to wipe their record clean of any type of federal conviction. any type of federal conviction. Most presidents do pardons throughout, but the biggest, most complex, gnarly ones are often left to the last few days. Why is that? Because pardons are essentially saying that this whole federal system that we've set up to hold people accountable for crimes and that we put so much faith and emphasis in, we're going to take part of that and throw it out the window and get you literally a get out of jail free card. And Trump, like other presidents, has done them throughout. He's actually done fewer than other presidents up until this point because he has not done them

in a regular system like previous presidents. In a traditional presidency, you would have the Justice Department's pardon attorneys examining applications about who should be pardoned, providing those recommendations to the White House and for the White House counsel's office, the lawyers in the White House, helping the president determine how to use that power. That conveyor belt has not existed for the Trump administration. Instead, you've had these scattershot pardons for Republican icons. Breaking news from the White House. The president has pardoned Scooter Libby, the former chief of staff to Vice President Cheney.

Like Scooter Libby, who was convicted of lying during the Bush administration. President Bush deliberately refused to actually pardon Scooter Libby because he did not want to eliminate the finding of guilt against Libby. Dinesh D'Souza. Who pleaded guilty in 2014 to campaign finance violations. The conservative rabble rouser. President Trump once again bypassing the Justice Department to fast track his pardon, arguing that D'Souza was treated unfairly by the government,

despite D'Souza acknowledging that what he did was wrong. You had in 2018, Kim Kardashian lobby Trump directly for a pardon for a woman that she knew who was in prison. Trump directly for a pardon for a woman that she knew who was in prison and Trump granting that despite the advice of the Justice Department telling him not to. There's usually a legal process that goes along with pardoning people and commuting people's sentences. And the president just took one meeting with Kim Kardashian. And then this year we saw the president give them to people who looked like they had been convicted of crimes while covering up for the president. Roger Stone, a self-described dirty trickster, is now a free man.

Roger Stone, the president's longtime advisor, Trump commuted his sentence right before he was supposed to go to prison. He says you should understand that a pardon would be final and that in accepting a pardon, you are accepting guilt. And I would rather see you fight this out, which is why I'm commuting your sentence. And then last Friday, Trump giving a pardon to Michael Flynn. Former National Security Advisor Michael Flynn received his pardon via tweet late this afternoon. Who had pled guilty to lying to federal authorities about his contacts with the Russians during the Trump transition. President Trump saying Flynn can now have a truly fantastic Thanksgiving. can now have a truly fantastic Thanksgiving. For Trump, if you looked at all of his pardon and commutation acts,

it looked a lot more like him handing out party favors and giveaways to friends and allies and celebrities than it did the most sacred and absolute power that the president has. Right. And I think that's left all of us wondering, you especially, since you're focused on this, who would the president pardon or commute in the final days of his term, given the list that you have just ticked through? You're right. For a president that has shown few inhibitions about anything and certainly about pardons, what could he do in his final days? What would he be willing to do? What had he been putting off until the end? And as my colleague, Maggie Haberman,

and I have learned, there is a group of very important people close to him who he is considering using a very unusual and special type of pardon for these individuals. And that's his eldest three children, his son-in-law, Jared Kushner, and his personal lawyer, Rudy Giuliani. Most pardons are given to people that have been convicted of crimes. But in some very rare and high profile instances, the president has given what's known as preemptive pardons, pardons for people who have not yet been charged with crimes. It allows the president to dip their hand into the justice system in a proactive way. Legal scholars do not say that the president can pardon you for crimes you have not committed. So I cannot give you, Michael Barbaro, a pardon for stuff you may do several years down the line when I am no longer president, unfortunately. But I can pardon you for things you have already done and could be

charged with. That's fascinating. So in this case, the president is considering going that charges against these five people that the president would be protecting them from with this concept of a preemptive pardon. Because I don't think I'm entirely familiar with the feared charges against each. And maybe we should go person by person. But that's the thing about a preemptive pardon is that there's sort of a mysterious element to them. When you've not been charged, it's not always clear what you may have done wrong. We know from our own reporting that Rudy Giuliani has been under investigation by federal prosecutors in Manhattan for his dealings in Ukraine. Now, we do not have an indictment

that lays out exactly what he did. It's been a secret investigation that we've had to use, you know, our own powers of reporting to try and figure out. There are clues about what may be the problems with others. Don Jr. was under investigation in the Mueller investigation for his ties with Russia and whether he violated campaign finance laws. He was never charged, and we only know this because of a Mueller report and some of our own reporting. Jared Kushner couldn't get a security clearance and provided a bunch of incorrect and incomplete information to the government when he was applying for a security clearance, which is a violation of the law. Could that be his criminal exposure? So we don't totally know

everything that they may have done, they may think they have done, or federal authorities may think they have done. What about Eric Trump? Eric Trump has been the head of the Trump family business. His name has been thrown around in reports out of investigations by local and state prosecutors in New York. Those aren't federal charges, but the president has seen reports of those. And if Eric has that exposure there, a lawyer would tell you maybe he has that with the federal government as well. You have to remember, pardons only extend to federal charges.

And what about Ivanka Trump, the president's daughter? It's not clear. Trump, the president's daughter. It's not clear. Questions have been raised about whether the president improperly used some of her finances in a tax scheme, but we really don't know. Mike, implicit in giving your three children, your son-in-law and your lawyer, this kind of blanket preemptive legal protection would seem to be an acknowledgement from the president that he's worried that they have conducted themselves in a way that is illegal. He needs to insulate them from essentially being collateral political damage as a Biden administration takes over the Justice Department. He's afraid that a Biden Justice Department will seek retribution against him by going after his children and by going after Giuliani. And is there any evidence to support that? Is that a realistic fear? I don't know. But the president has often used the fears of what Democrats may do to him

to rationalize a range of behavior throughout his presidency. And that line of rationale has often resonated strongly with his base. And you have to also understand what a pardon is. Legally, a pardon is essentially accepting guilt for what you did. So by giving a pardon, you are accepting that guilt in exchange for never being charged with that crime. That's fascinating. So if Ivanka Trump, if Eric Trump, if Rudy Giuliani takes the preemptive pardon, in a real way, they are saying, yeah, I did something wrong here because otherwise, why would I need a preemptive pardon? It would be saying, yes, I was guilty of those things. That's why I need to be protected from them. Because we don't protect you from crimes that you could be convicted of that you didn't do. That's not what pardons are for. So they would be essentially accepting guilt for these things.

Now, they would just turn around and say we were pardoned because we had to be and everyone's out to get us. But. We'll be right back. Mike, when it comes to a preemptive pardon, what kind of history is there of presidents granting these? I mean, what kind of precedent are we talking about?

precedent are we talking about? In some very rare but important historical moments in our country, presidents have gone this length to give these so-called preemptive pardons. George Washington, the first president, pardoned the plotters of the Whiskey Rebellion in the 1790s. pardoned the plotters of the Whiskey Rebellion in the 1790s. These were farmers and distillers who rose up in response to attacks. Washington pardoned them before they had been charged, and they never had to face this in court. The country was in its early stages. There was this uprising, and Washington was willing to use this power to try and put the country past it. Almost 200 years later, pardon means that what you did, whether it's right or wrong, you're forgiven for it. And I do advocate a pardon for draft evaders. Jimmy Carter pardoned draft dodgers from the Vietnam War. I think that now is the time to heal our country after the Vietnam War

and also to bring about an end to the divisiveness that has occurred in our country as a result of the Vietnam War. The most famous example... I, Gerald R. Ford... ...occurred under Gerald Ford. ...have granted a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he has committed or may have committed or taken part in during the period

from July 20, 1969 through August 9, 1974. He pardoned Richard Nixon, who had just resigned, for all acts Nixon had taken as president. This was by far the most controversial decision Ford ever made. His reelection loss was attributed directly to it. But Ford said that he believed he needed to do it, it would have been too painful and potentially divisive to have a country watch its former president get prosecuted in federal court for being the president. So in all of these cases in the past, the kind of stated intention, whether or not you buy it when it comes to the pardoning of Richard Nixon, the stated intention was the best interest of the country, sparing Americans from something divisive that should instead be put behind them for the good of the nation.

For the good of the nation. It's not worth it to look at the Whiskey Rebellion. It's not worth it to put the president on trial. It's not worth it to look at all these draft auditors. I'm not sure that that thread continues here. It looks more like an act that's more about the good of the president than it is about the good of the country. Is a preemptive pardon an actual guarantee that somebody won't ever be prosecuted or convicted? In the case of the Whiskey Rebellion, it looks like those charges

weren't brought against them. My recollection is that draft dodgers were not charged because of this pardon, and that we know Richard Nixon was not charged for his acts because of the preemptive pardon. But let's say some prosecutor decides, I think this was an abuse of the pardon system, giving it to your kids, your personal lawyer. I'm going to bring charges. Is there any guarantee that this act actually would spare them prosecution? We don't know. We are in territory legally that as a country we've never really headed into. And you could down the road have a prosecutor who says, I think those pardons were given corruptly or do not apply to what I want to bring charges on. to bring charges on. And they could bring those charges and a federal judge would be forced to decide whether to honor the pardon given by the president or to say that it doesn't apply.

But as much as people may look at this as an abuse, legal history sort of lends itself to show that these pardons would stand. And they would basically be a get out of jail free card for those close to the president. Probably. Yes. So Mike, who else do we think Donald Trump is likely to pardon in the next few weeks before January 20th? The biggest question is what will the president do about Paul Manafort, his former campaign chairman, who was charged and later sentenced in the Mueller investigation

for fraud and tax charges. He currently sits in prison and has a very lengthy sentence ahead of him. Manafort has something in common with the two others Trump has already commuted or pardoned, Flynn and Stone. And what's that? Manafort, Flynn and Stone were three of the closest people to the president during the campaign. And they never provided full cooperation to the Mueller team that was looking at ties between the Trump campaign and Russia. and Russia. They were also three people that the president either publicly or privately dangled pardons in front of. So we're talking about three key witnesses that never gave their full story, that left key questions about collusion and the campaign out of reach for prosecutors. Would the pardon

of Manafort and has the pardons and commutations of Stone and Flynn been the final acts of the president's obstruction on the 2016 campaign investigations? Right. And just to be clear about why it could be interpreted that way, you're saying because these three men did not cooperate with investigators and have either gotten or are likely candidates for a pardon or commutation, this may be the realization of a presidential plan to use the power of the pardon to block these investigations of him and his administration.

Potentially. Mm-hmm. There's one pardon, Mike, we haven't yet discussed. The ultimate act of self-protection, the possibility that Donald Trump may pardon himself. And I wonder if you think that is likely to happen. So let's look at what the president has said about this. Throughout his presidency, he has said he has the power to pardon himself. Now, that type of act has the same type of questions about can you preemptively pardon someone as the other potential pardons because Trump has not been charged with a crime.

But it is also in this highly untested area because we've never had a president try and do that. Mm-hmm. Mike, it feels hard to overstate the degree to which the president has altered our understanding of what a pardon is for and who it is for. And I wonder if this is going to spark any kind of conversation about whether this unique power is just too great for a single person to possess. I think what Trump has shown us is that if you are willing to push the limits on your own power as a president, you can do a lot to insulate yourself. And now, here in the final stages of the presidency, the question is, on this power, this most absolute power, how far will the president go? And that's what we'll find out in the next month and a half. Mike, thank you very much. We appreciate it.

Thanks for having me. We'll be right back. Here's what else you need to know today. The bottom line is if we don't act now, our hospital system will be overwhelmed. If we don't act now, we'll continue to see a death rate climb, more lives lost. death rate climb, more lives lost. California said that it would begin imposing sweeping, weeks-long stay-at-home orders in regions across the state as hospitals become overburdened. And that's why today we are pursuant to the blueprint we put out some 14 or so weeks ago of pulling that emergency brake. The orders will take effect when the intensive care units in a region's hospitals fill to more than 85 percent of their capacity.

That has not happened so far, but is expected to occur by the end of the week. And... So compromise is within reach. We know where we agree. We can do this. With infections and death rates surging, the leaders of the House and Senate said that there was growing momentum for a new economic relief package after months of inaction.

Let me say it again. We can do this. And we need to do this. So let's be about actually making a law. House Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell spoke by phone on Thursday about a potential package, which is expected to contain hundreds of billions of dollars in assistance for workers and businesses. of dollars in assistance for workers and businesses. Thank you. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly.

Special thanks to Sam Dolnick, Michaela Bouchard, Lauren Jackson, Julia Simon, Mahima Chablani, Nora Keller, Sophia Milan, Des Ibequa, and Jonathan Wolfe. That's it for The Daily. I'm Michael Barbaro. See you on Monday.