The Ricochet Podcast - Pardon Yoo!

Episode Date: December 6, 2024

John Yoo returns to discuss a lotta legal stuff this week. He talks presidential pardons, Daniel Penny, United States v. Skrmetti and the murder of UnitedHealth's CEO in Midtown Manhattan. Plus, after an extra-long Thanksgiving season hiatus, the boys are back with much to be grateful for. Sound from today's open: Chris Wallace predicted Hunter pardon on June 10; Ted Cruz reacts on NewsMax and Joe says Goodbye, Angola

At LiveScoreBet, we love Cheltenham just as much as we love football. The excitement, the roar and the chance to reward you. That's why every day of the festival, we're giving new members money back as a free sports bet up to €10 if your horse loses on a selected race. That's how we celebrate the biggest week in racing. Cheltenham with LiveScoreBet. This is total betting. Sign up by 2pm 14th of March. Bet within 48 hours of race.

Main market excluding specials and place bets. Terms apply. Bet responsibly. 18plusgamblingcare.ie They say you can't hurry love. But if you don't get to your post office by March 23rd, you'll miss your chance to save €2.50 on a book of 10 heart-shaped love stamps. Now just €14.

Down from €16.50. Perfect for all kinds of love messages like We're getting hitched. You're still my favourite. Or Grawl Macri. If for all kinds of love messages like, We're getting hitched. You're still my favorite. Or, If you've a couple of fuckle, Buy yours now at your local post office or at onpust.com. Send joy.

Show grow. Send love. Onpust. For your world. T's and C's apply. See onpust.com. I feel like Jack Webb just moving from Fatima to Chesterfield. Ask not what your country can do for you.

Ask what you can do for your country. Mr. Gorbachev, tear down this wall. It's the Ricochet Podcast with Peter Robinson and Charles C.W. Cook. I'm James Lylex, and since there's a lot of legal stuff in the news this week, of course, we've got to talk to John Yoo. So let's have ourselves a podcast. He was asked directly, and he has said he wouldn't pardon his son if he gets convicted. Let's wait and see what happens if he loses.

Yeah, but I mean, but he said it. And this pardon is all about Joe Biden protecting Joe Biden. It's shameful and completely unsurprising. Ladies and gentlemen, as you know, I'm in the final weeks of my presidency. You don't have to clap for that. You can if you want. Welcome, everybody, to the Ricochet Podcast number 718. I'm James Lilacs, overly enunciating for some reason, here in Minneapolis where it's cold and crisp and trending towards Christmassy. A little dusting of snow. We like to have our white Christmases after that. We're done with it. Get it out of here. Bring the spring on. But that's months and months away.

However, next month brings what? Well, an inauguration. And then a new era begins. Here to discuss that, cast their eyes forward as well as backwards, are Peter Robinson and Charles C.W. Cook. Gentlemen, welcome. Thank you, James. Charlie, how are you? This is very polite of you, James. Thank you.

What was very polite of me? Saying welcome. Oh, well, that is my duty, I guess. I mean, you want me to just raw dog it? No, I appreciate it. Don't raw dog it. No. So we had Thanksgiving before we get to the future.

Everybody knows that Thanksgiving is, you know, it's done, it's over, we're moving towards Christmas. But yet, we ought to stop and think and wonder exactly what we were thankful for. Briefly. Peter? Oh, well. I mean, my crude political self is thankful that the other side lost. And I really am thankful for that, honestly. The pall that lifted, just the feeling, there is a feeling of, I'm, in my X feed, Mark Andreessen is making this point a couple of times a day, but here in

Silicon Valley, there is a feeling of renewed energies. Now, I know that that may not sit well with the rest of the country, and there are plenty of people here in Silicon Valley about whom I have my own reservations, and some companies about whom I have my own reservations, but the notion that people are freer, much freer, feel feel freer will be freer to invest as they choose to invest to gather capital to hire engineers to start new projects is quite a thing and and to my surprise more than i would have expected you can actually feel the difference then of course the usual things which are more important to me but less interesting to everybody else which is the health of each of my children nobody's in jail nobody's in the hospital we're doing fine as a family all that of course

matters enormously but is of no interest to anybody but me charles like it spoken like a true privileged member of the oligarchical overclass doesn't have to worry about being sent to Auschwitz on the Rio Grande. Auschwitz ah yes yes. Hi Charles. What am I grateful for as a fellow member of the overclass? Well

I'm very grateful for my family I'm grateful that I have a job. But, you know, the thing that struck me this year more than any other was inspired by a comment from Rich Larry on the Editors' Podcast, which was actually in connection to a discussion of space rockets going up near where I live.

And he said to me, did you ever think you would be able to walk out of your back door and you would be able to watch rocket launches i thought well no i wanted to live in america and i do and i'm very very grateful for this this year i felt especially grateful for this that of all the things when i was a little kid i wanted more than anything before i had any politics or any real conception of the adult world i I just wanted to live in America. And I do. And that's a magical thing.

Yeah. What I love about the rockets launching is that it's become so ordinary. It's become almost banal to see this slender tower rising on a pillar of flame to go into the Imperium and deposit its litter of satellites connecting to the world. What I love about it, of course, I love the fact that Elon Musk in the back of his head is motivated by the same sort of sci-fi tropes that I probably grew up with, is that you land a rocket on a pad with its legs that come out of the side, like they did in Destination Moon. I'm surprised that he hasn't put up something that come out of the side, like they did in Destination Moon.

I'm surprised that he hasn't put up something that looks exactly like the rocket in Tintin's Adventures to the Moon. I never cease to marvel at seeing these cylinders come from the sky and right themselves and land on a platform on the ocean. It's astonishing. And I love the fact that it's absolutely ordinary. People always say, you know, where's the future? Where's my flying car? You don't want a flying car. Trust me, you don't. You don't want people to be up there buzzing around. I mean, if anybody

actually remembers Jetsons, flying cars were actually pretty horrible because you were stuck in traffic all the time in this narrow little band of everybody bunching up together so no i don't want that i don't want that at all but i mean when you look at the size of the of the starship compared to the saturn 5 you you you goggle and you realize we're back we're back and this is an extremely consequential moment in human history have you noticed james that i seem to be winning an argument that you and I have been having for perhaps a decade now? You keep saying space travel, space travel, the romance of it, it touches something in our souls. And I keep saying space travel, but only if financed with private money. I'm done.

During the Cold War, it was an act of war to go to the moon. Fine. We needed to do it in some basic way to defeat the Soviets. That's over. And I keep arguing, fine, go explore space, but not with the public's money. And the world has taken note. Apparently, Elon has been listening to you and me debate this for these many years.

Well, good for him and good for you. And yes, I'm happy however we get there. I wouldn't have mined the expenditure of public funds because I think it's an act of sort of civilizational philanthropy. But that's just me. And everybody's got their little carve out. I don't want you to spend on that, but this is my pet project, which tickles my gizzard, so do this. Well, here we are then. Good.

So we're all grateful. I was actually not in America. I was in Mexico on Thanksgiving Day. Oh, is that why you're so – you look rather basted yourself. It was wonderful. And they put on a Thanksgiving dinner for the Americans who come to the resort. Where in Mexico? Cancun.

Which, as I say in my upcoming podcast, doesn't really qualify as going to Mexico. It's getting into one little sealed, pressurized tube and going to a place, getting briefly scammed, getting out of the scam, and then taking a car to a nice little walled garden where you can pretend you're in Mexico,

but I still will take it. It's better than being kidnapped, though. It is better than being kidnapped. We were. We actually were, but we got out of it and there it hangs well in as much as we were the do i have to go into this um we were the victim of a uh a scam at the airport uh and by victim i mean to say that i walked right into it and actually had the misfortune of trusting a man with a badge uh never trusting a man with a badge. Never trust a man with a badge in Mexico is what I have learned since.

Now, we were not actually probably in any physical peril. We would have ended up spending twice as much money as we needed to get to our resort, but we would have got there. But it was still a thing that makes me look back and say, ha, ha, you old Cancun hand, you idiot. But we had a Thanksgiving dinner in Mexico, which was amusing, because they can't get it right, and it's not that hard. But they had a turkey that was, the stuffing was basically haggis. That's okay.

I love haggis. I love haggis, too. But it's not, haggis is great. It's un-American to love haggis. That's okay. I love haggis. I love haggis, too. But haggis is great. It's un-American to love haggis, Charlie. Well, it's illegal to love it in America. It's worse for me, Peter, because it's a Scottish dish. I'm praising it. It's a former Englishman. You can't get it here because it's illegal.

They don't allow lung-based foods in America. The stuffing was wrong. There was no pumpkin pie. There was pumpkin cake. All the details were a little off, but it was like being in the zoo run by aliens where they've studied enough of your culture to be able to try to make you

feel at home on this special day. So that was great. May I amend my thanks? And it's your tales of Mexico that bring this to mind. It has been on my mind the last couple of days. Post-Thanksgiving, but still I'm thankful for it. Survey the world.

And France is in a constitutional crisis. The Constitution of the Fifth Republic does not seem to have taken into account the kind of circumstance in which a government has fallen, but it is not legal for the President of the Republic to call a new election for something like a year. Germany is facing a series of elections in which the general expectation is that the two parties, that the party of the right and the party of the left, will have to go into coalition to avoid the party of what everybody is calling the far right in other words we have paralysis the government of prime minister keir starmer only a few months old in britain is now polling below well below 30 percent paralysis in britain in mexico conversation with a friend of mine who an american who ran the american branch of a bank in me City, and every single person of the rank of vice president and above had either been kidnapped or had a family member

kidnapped. Mexico, a beautiful country where some large portion of the economy is run by cartels, and everybody knows it. Gentlemen, we live in top country, the country that is not having a constitutional crisis, despite all the nonsense, all the claims that Donald Trump would represent a threat to democracy. The country that is functioning is this one. It is good to be in country number one. I'll give you an example of this. You left out Syria, of course. Well, we left out the whole Middle East, but Syria is in a perilous state at the moment,

and it's going to be interesting to see how that shakes out. But while in Cancun, I had the opportunity to talk to people from every nation because a lot of people come. Germans come there. Oh, I didn't know that. It's popular with the Europeans. I didn't realize. It's a long way to get there.

Brits. Talk to some Brits. Talk to a lot of Canadians. Everybody is unhappy with their country. Everybody was unhappy with their country. And across all kinds of demographic and money lines, there's this man, Mountain Canuck, I was talking to at the bar, Slammin' Tequila. It was a miner in Manitoba. Guy who's down there with a pickaxe.

And they all are drastically unhappy with with their country and they're all really giving a thumbs up to america and for donald trump now there was a german i was speaking to who was when i finally got him going and it took a little while uh went on a rant about decarbonization and renewables that was just epic in its scope and scale about the idiocy of it and how they've undercut their own security and their own industrial capacity and made themselves rely on others and how it isn't going to work and the numbers aren't there and it's absolutely i mean it's just it was it was it was it was operatic and i asked him i said yeah, I agree with you. What do you do for a living in Germany?

And he looked down, and then he looked up, and he said, I sell photovoltaic rooftop equipment. Solar. And there you go. There you go. Complicit in it, up to his neck, and knowing exactly what's happening. But that seemed to sum up uh some of the some of the attitudes anyway um charles is just following orders james yes he's just following orders

well it doesn't mean he likes the regime just because he has to carry out his orders just fulfilling orders that have been placed by legitimate customers charlie charlie it was 70 years ago let it go let it go absolutely not i will never let it go i grew up with this being the running joke frequently returned to running joke we had junkies but every saturday afternoon we had dad's army and hello hello and it was just make fun of the Germans' day, and the local pub that we would go to. Even when I was a kid, in the bathroom, in the men's bathroom, all over the wall, they have a collection, framed each one, of gallows humor cartoons drawn for the newspapers during World War II. During the war. And, of course, that's the point at which it wasn't funny at all. And still, the British managed to make joke after joke after joke

about the Germans and Hitler and so on. So I will not let it go, actually, Peter. Well, there you go. I would like to say something about something, but Rob isn't here. So I'm not even going, I want Rob to know that there's not even a commercial ad segue for him to spoil. I want him would in whatever monastic cell he is right now to just all of a sudden bolt upright and bang his head on the bunk above and say, I could be spoiling the segue, but I'm not. Because, frankly, I just want to stop and tell you that Charles is going to give what I believe to be on the Flagship Podcast

his first personal endorsement. Now you're wondering for what? Is it going to be for a fine, fine golf cart accessory? Is it going to be for a great American, I don't know what he drinks, but we can find out that. You know what it is? It's sheets. And if you're thinking, oh, I've heard this.

No, you haven't. No, you haven't. Because I'm here to tell you about Cozy Earth. Cozy Earth. They have a goal, and the goal is to help you create a sanctuary within your home, a refuge from the demands of the outside world. Cozy Earth understands the significance of finding comfort and tranquility in our hectic lives. Your five to nine, as we like to call it, should consist of relaxation, rejuvenation, unwinding,

embracing a sense of calm. And with Cozy Earth, you can transform your space into an elevated haven where serenity and renewal intertwine effortlessly. Cozy Earth sheets are so breathable, you'll sleep several degrees cooler. And I imagine that matters in Florida, does it not, Charles? Would you like to tell people about your personal experience with Cozy Earth sheets? I love these sheets. But, you know, I did the smart thing when I was choosing them which was not to choose them but instead let

my wife choose them so she got it sexist pig what is what a thing to say because if i had if i had ordered cozy earth sheets of my own uh choosing i would have got it wrong you see not because the sheets would have been wrong because they're all terrific but because i would have got the wrong color or got the wrong size or got ones you know so i said to my wife and i don't just need to endorse this on behalf of myself although i do love these sheets and they are nice and cool uh but my wife absolutely loves them was extremely excited at the prospect so far from being sexist pic she jumped with joy when i said you can go onto the internet and choose some sheets and then put them on the bed and then sleep in them, which we do every night.

And staying cool is actually extremely important and quite difficult sometimes here. So cozy sheets are terrific. Everything James said is true. Go buy them. Well, there you have it. You can go on the internet,

you can buy them, you can have them delivered, you can put them on the bed and then you can sleep on them. That's the imagine that you have to do it. Otherwise it won't work. You can buy them. You can have them delivered. You can put them on the bed, and then you can sleep on them. Imagine that. You have to do it in that order, otherwise it won't work. You must. You can do that with any sheets. But the thing is that Cozy Earth, they're different.

The ultimate ingredient for luxurious sleep would be softness, right? Well, Cozy Earth uses only the best fabrics and the best textiles to enhance that. Cozy Earth bedding and bath products, again, bath products as well, get this, a 10-year warranty. That's how much Cozy Earth bedding and bath products, again, bath products as well, have, get this, a 10-year warranty. That's how much Cozy Earth believes in them. Learn more about

their story and what makes Cozy Earth different. Wrap the ones you love in luxury with Cozy Earth. Visit CozyEarth.com slash Ricochet and use the exclusive you ready? 40% off code Ricochet and you can give the gift of luxury this holiday season.

Who doesn't need new sheets? Everybody needs new sheets. That's CozyEarth.com slash RICOSHAY. 40% off. You get a purchase survey. You get one of those. Tell them you heard about Cozy Earth from the guys at the Ricochet podcast. And we thank Cozy Earth for sponsoring this, the Ricochet podcast. At LiveScoreBet, we love Cheltenham just as much as we love football. Cozy Earth for sponsoring this, the Ricochet podcast. celebrate the biggest week in racing. Cheltenham with LiveScoreBet. This is total betting. Sign up by 2pm, 14th of March. Bet within 48 hours of race. Main market excluding

specials and place bets. Terms apply. Bet responsibly. 18plusgamblingcare.ie And now, we happily ring to the... Oh, I'm sorry. I thought we had that other guest. Oh, we can't... I know the only reason I'm here is because someone cancelled last minute. She cancelled. We've got John, you, professor of law at UC Berkeley.

Also a senior research fellow at Civitas Institute University of Texas at Austin. And a non-resident senior fellow at the American Enterprise Institute. I hope they upgrade you at some point. He's the author of several books, most recently Defender in Chief, Donald Trump's Fight for Presidential Power. Hey, John, how are you doing? Good, good. How are you guys? Are we talking about pardons or penny? Both. Well, let's talk penny first, because pardons is bigger and thicker and richer and deeper. But wow, are we going to have a

mistrial? And then they're going to do the smart thing and say, nah, we're not going to try them again. This is why electing prosecutors and the DA can be an important thing, because here's a guy, Alvin Bragg, who put Penny on trial, I think, for doing something heroic. He now has a choice if this goes into a mistrial, whether to retry Penny again, continue taking his freedom away, put him on trial for his freedom for years, or whether he could, I think, do the right thing and use his discretion to drop the case. Here's a guy, this is that same Alvin Bragg, of course, who decided to spend years and millions of dollars going after Donald Trump in the hush money case and not bringing certain felonies for a violent crime in New York City and Manhattan while pursuing people like Donald Trump.

So I think, unfortunately, this guy is this guy, Alvin Bragg, is probably going to retry Penny again if this is declared. Yeah. Well, because maybe they're not completely stupid and a wetted finger can tell them that there is a there is something of a vibe shift even in new york when it comes i mean then i i'm one i would love to hear exactly what the jury's jurors are discussing precisely yes uh how many of them the the heredity who got up there and you know made the case about the white man doing this thing it's it's it prima facie i don't think that they had anything. But then again, I'm not a lawyer. Yeah, so can you tell, John, lawyer that you are,

or can you speculate? Can you give us, I can speculate. Can you give us informed speculation? How could it be that there are any jurors at all who want to convict this guy? That's not a legal question. That's a psychology question. Well, all right. You're not a psychologist either, Peter, although you play one on TV. So, here's the thing.

For a hung jury, what we're seeing now, you only need one person actually to hold out. So there may only be one person on the jury who wants to convict and 11 other people who don't. So a hung jury just means that the jury couldn't come to agreement. And that's why the usual possibility after is you can have a whole new trial and try with a different jury. So it's neither an acquittal or a conviction. Now, why this is happening? How long can the judge, just a technical question, how long can the judge, I guess, actually, I was about to say permit this to go on, but it's actually the judge who's insisting that they continue to deliberate.

When does the judge say, all right, that's it, hung jury, on we go? How long does he have? How does his discretion come into play there? Oh, he doesn't have months or even weeks. Usually judges get right to it so what they've done now is issued what's called an Allen charge which is yeah I think of it as the pretty please pretty please issue from the judge which he goes to the jury and the Allen charge just says could you guys really really think hard and try to be reasonable and come to a unanimous verdict if that fails then usually if

the jury can come out and say even with this Allen charge we still can't come to a unanimous verdict. If that fails, then usually the jury can come out and say, even with this Allen charge, we still can't come to a unanimous decision. Then usually the judge right away will declare mistrust. Okay. And does the judge know if it's 6-6 or 1 versus 11? Does he have any indication of how hung they are, so to speak? No, but I think you're allowed to find out afterwards, right after the trials are, then you see all the jurors will rush out to the TV cameras accompanied by Jonathan Turley, and we'll find out pretty quickly what the... But the notion that the judge issues an Allen charge does not imply that he thinks there's only one or two holdouts who could be...

Oh, he doesn't know. He doesn't know. So the Allen charges usually judges, if you think about a trial, judges spend, and the state, the public, spends a lot of time and resources to put on a jury trial. It takes months. This one takes months. So the judge doesn't want to waste all that time. Plus, the judge is going to have to do it all over again for a new trial. So I think most of the time they do issue an Allen charge. It's not unusual to do

something like this. So, Charlie? John, as far as I understand this, there are two charges. There's second-degree manslaughter and then there's negligence. So if the jury is hung on the second-degree manslaughter charge, it can still convict of negligence. If that's the case, do you think that would diminish Alvin Bragg's desire to retry the manslaughter charge? Because he'd have got something out of this. He'd be able to say, we didn't waste time. It wasn't a crazy prosecution. And Daniel Penny is going to pay some price,

albeit, I think,ly, for his actions. Interesting question, Charles. Yeah, there's two different charges, and the jury so far has hung only on the first one. They haven't proceeded to the lesser charge. The first charge is what we call reckless manslaughter. That's different than the murder we see on British TV shows that Peter likes. If you can see Peter's background, he's watching Masterpiece Theater right now on his little screen. We know it and I know it. If you were first-degree manslaughter, intentional murder, with deliberation and planning, that would be a different thing. This is reckless. This means that Penny acted with disregard, that he acted recklessly, and that led to the death of a subway rider.

Even if he's not convicted of that, Charlie's quite right. There's a lesser charge, which is just negligence, which is just a kind of like, well, even if you weren't reckless, you still shouldn't have done what you did. Now, the important thing, I think, for Charlie's question, this gets more into the political aspect of it, is I think that really depends on the sentence. Suppose a jury convicts on this, you are merely negligent. As I understand it, the sentencing range could be zero. There is no required sentence. So, that's when we will really see, in response to Peter's question, what the judge really thinks about all this. The judge could sentence him to

zero and say, I think that actually- You've been through enough. Yeah, you've been through, and what you did had a lot of benefits to society. Then, I think then Bragg looks the worst, right? Then you have a judge saying, this should never have been brought, and I'm giving you zero years in jail. Now, he could also, I think, give him up to, I think the sentence range could be up to four years. So if he gives a full sentence of four years, right, then Alvin Bragg, as Charlie suggests,

might come out looking good and not need to retry him on the tougher first charge. And to raise the obvious issue here, meaning we have to get to this issue before we let you go john one way or the other presidential pardons if if the judge slams this guy with a maximum sentence wouldn't that be a case where donald trump that's a state case right ah yes you have to read the clause he can't reach it there's only federal crimes we gotta rely on the guy from britain to read the text of the constitution no charlie's even worse the guy not even even worse the guy from florida charlie makes you and richard epstein look perfectly ignorant john i want you to know it's right here so the pardon power only has two exceptions for impeachment.

And as Charlie just said, it only applies to federal crimes. This is a state crime. But I'm going to start suggesting this. That doesn't mean Donald Trump can't do something about this. In fact, I'm surprised he hasn't thought of this already. Maybe after he listens to this podcast, he'll start doing it. Why doesn't Donald Trump go out and say, I think the criminal justice system in New York is broken and wild. I'm cutting all federal funds off to the city of New York's justice system.

I'm not giving any more police grants. I'm not giving any more law enforcement effect. I'm sure the federal government sends millions and millions of dollars to New York City's courts and police officers. And I'm going to have the Civil Rights Division of the Justice Department conduct an investigation into whether the New York City prosecutor's office is racist. Because here I see case after case of innocent white guys being prosecuted for things like being heroes on the subway, where I see dangerous felons who may be minorities not being prosecuted by alvin bragg he could launch an investigation which would drive that off as bonkers refusing to use federal money

to control a state uh apparatus and then and then investigating them for racial preferences instead of racial neutrality that's fascism straight up so so what about biden's pardon of hunter and what about this notion of preemptive pardons he could do that couldn't he could say as far as that goes he could say everybody in the state of delaware i hereby every pardon everybody in the state of delaware I hereby pardon everybody in the state of Delaware. And according to the Supreme Court, it's done. Everybody in the state of Delaware is pardoned, correct? This is actually a question where George Washington and Abraham Lincoln set the precedence, not the Supreme Court or the courts. The pardon power doesn't say anything about whether you can pardon people for actions, not charges. So what Peter's asking

is, can you pardon someone for things they did, but there's been no investigation, there's been no prosecution? We may not even know about it yet. It just happened in the past. And you could have gone the other way. If you look at the text of the Constitution, you could have gone the other way and said, oh no, the pardon power really exists only for people who are charged or people who are actually sentenced and in jail. That would have been the narrower reading. So what happened in the first time the pardon power was used by George Washington is in the Whiskey Rebellion, which sounds like Rob Long at a bar.

Yes, it does. I digress. So in the Whis rebellion yeah the whiskey rebellion there's a you know people out in western pennsylvania my home state who still hate taxes to this day they didn't want to pay tax on whiskey so they actually kind of attacked the courthouse and harassed federal officials george washington came out at the head of an army i mean he actually led the army in the field to suppress it but then after he put down the rebellion with no loss of life he pardoned the ringleaders,

as you're saying, preemptively, before they were even charged. And then the biggest one we've ever had in our history was Abraham Lincoln and Andrew Johnson pardoned all the members of the Confederacy, millions of people, as a way to heal the nation after the Civil War. So because of those precedents, we've always accepted this idea, but it's not, I would say, natural from the text of the Constitution. Is there a difference, John, between preemptively pardoning someone in, say, the Whiskey Rebellion for an act that is by definition cabined because washington had to intervene and giving them a blank check for example the the hunter biden

pardon was issued at i think 8 p.m but it lasted until midnight so everyone joked you know hunter has four hours to go out and do whatever he wants but the potential preemptive pardons that are now being debated in the White House, apparently without Joe Biden's involvement, if you read the reporting, seem to be completely blank. In other words, it's not Washington saying, we know we just had this rebellion. I am pardoning you in a blanket sense for your involvement in it. Or Lincoln saying, I am pardoning you for being involved in the Confederacy, I assume the crime being treason there. This is, if you are somebody we suspect that Trump might not like, you cannot be federally

prosecuted for anything. Anything. Is that different or not? I think it is different in the sense that there haven't been examples of this from American history. So now we must blame our forebearers and Charlie's direct ancestors. We would have to go back and look at English constitutional history leading up to 1788 to see if the English king had ever issued a pardon like this. My memory is that Queen Elizabeth, I swear to God, might have issued pardons like this. This has never come up to the Supreme Court before. Usually what has happened is the prosecutors just choose to recognize the

pardon and never bring charges or even investigate. It has become a kind of immunity shield. But I think you're quite right. We never had pardons that didn't mention any particulars of a crime, right? As you say, it's just a time period. And it's just anything you might have done in this time period. I mean, that would be an interesting challenge, but I think the courts would probably still uphold pardons like that. But it is really different in nature. Because you see, take all the arguments the liberals have made about why the Trump presidential immunity decision is so bad, right? Oh, undermines the rule of law, so on and so forth. The Supreme Court still gave the immunity because of the singular importance of the presidency. What these prospective pardons

are doing is giving that immunity to lots and lots of other people who aren't the president in fact are private people in many cases they get the same kind of right deflector shield from all federal investigation and prosecution which the supreme court has really said should only really be applied to the president so okay so you're in the white house by the way uh james i think said a moment ago or what was charlie that the debates are taking place without the involvement of president biden if that makes his difference in all the other policy debates if a debate is taking place you can be sure it's without his involvement um okay so these bright sparks at the white house say

anthony fauci he had to do all kinds of things. We don't know whether they were criminal. There's this question about whether he permitted funding of gain of research function in Wuhan. But we're for sure, we for sure feel that Trump and his people are going to go after Fauci. And so we're going to issue a pardon for Fauci for anything he might have done from date A to date B. Questions. One, do they have to get Fauci's permission? Can they do it? Because I think Fauci is on record as saying he doesn't want a pardon. Do they have to get his permission? Two, if there are these constitutional questions,

who has standing to take to object to who has standing to take that to the Supreme Court? How does that get litigated? So first, usually the practice is you have to accept the pardon so you can you can turn it down. It's a defense. So if you don't want to rely on it, you don't want to accept it. You don't have to say I don't want to accept it, you don't have to. You say, I don't want the pardon. And often there have been people exactly like Dr. Fauci who said, I'm innocent. I don't want a pardon. Don't give me a pardon. I won't accept a pardon because they maintain their

innocence throughout. So there's a number of interesting ways it would come up legally. One thing is, and this will come up with the Hunter case, interestingly, because despite Charlie and I talking about how broad the pardon is, it's not a complete get-out-of-jail-free card. Hunter can still be investigated for state crimes. I mean, the basic things he's been accused of, money laundering, influence peddling, are state crimes, too. So, the story's not over for him. Wouldn't be over for Dr. Fauci either. I mean, just simple fraud and lying is still state crime, primarily state crime. So it could come up in several ways.

For example, Congress would, I expect, say, now that you're under threat of prosecution, Hunter Biden or Dr. Fauci, you come up and testify. So the beginning thing will be, would Hunter Biden be able to claim the Fifth Amendment anymore, as he has been doing? It doesn't seem like it. No. No, you would think not. But he could say, what if I get prosecuted by some red state DA? What if Ken Paxton in Texas comes after me? I'm still going to claim the Fifth. Would Dr. Fauci do the same thing with a pardon? That could get litigated because Congress could then go to court and say, nope, you don't have the right to refuse us. A pardon could also come up in a state prosecution. Donald Trump is actually making the same claims in court now. At the beginning of the week,

he filed briefs in his New York and Georgia cases, basically saying, well, on the same ground, I mean, I don't think it makes sense legally, but he's saying rhetorically, because Joe Biden said such terrible things about the Justice Department and its corruption and the need to give Hunter Biden a pardon, you should drop these cases because I'm even more important than Hunter. Right, right. What could they get Fauci on? I mean, I know in our gutter guts, what we all think happened was that Obama signed the decree that said that we're not going to be weaponizing coronaviruses anymore. And that consequently, as it goes, the story, Fauci, in cooperation with EcoHealth and some

other people, offshorted to Wuhan, sent some money their way, and the stuff continued so that they could put together a robust catalog of viruses that they could then have the antidote for, the vaccine. That was the idea. You know, we've got to make the absolute worst devil super bug so we can figure out how to beat it. And then it got out of hand because bad management, bad protocols, protocols it escapes and the next thing you know you got millions of people dead now you'd think that that's sort of criminal but is it if it's the line to congress i mean people get up there in line of congress all the time it can't be that so what is the what would joe i mean i know we've said this before but exactly what would

by joe biden pardoning Fauci, I think a lot of people who haven't paid any attention to this would swivel their head up and say, wait a minute, what did he do? I think the first one is, as you mentioned, lying to Congress. Dr. Fauci said, I believe he said to investigators that he had no knowledge and was not involved in any diversion of funds to this nonprofit. And then they sent it to China, right, to the Wuhan Institute of Virology. The second thing is it could be criminal if right. This is kind of like Iran Contra.

He took money from appropriated funds and he diverted it to this group with the intention of sending it to China to conduct illegal research. Is that really that much different than the Iran-Contra affair? Remember, that's where the Reagan national security officials diverted funds and sent them to the Contras that were supposed to go back into the Treasury. So you could say, I mean, you could investigate him at least for misuse of federal funds. I mean, this is actually, if he did it with that really a lot of it depends on his understanding and intention of where the money was going and why he approved those funds but if he did that right that's criminal right abuse of federal funding it's like it's almost like stealing federal

money well if there are subpoenas let's have have Dr. J Bhattacharya deliver them. Yeah, exactly. I think we should issue Jay a pardon right now. Hey, John, grade Merrick Garland, how partisan has he been,

really? And grade Jack Smith, those two, what grade would you give them? Well, Jack Smith, just as a federal prosecutor, suppose I agreed grade Jack Smith, those two, what grade would you give them? Well, Jack Smith, just as a federal prosecutor, suppose I agreed with Jack Smith, or agreed with the Justice Department that Donald Trump, and I've always said, you know, a lot of these prosecutions were bogus, but not the January 6th prosecution. If there really was involvement by President Trump in an attack on the Capitol that should be investigated by prosecutors and could be charged. If that's the case, Jack Smith is one of the most incompetent federal prosecutors I've

run across. I mean, he had two years to at least get charges in and get the case going, and he failed. Not only did he fail, but you look at the indictment you look at the documents it doesn't seem he discovered any new facts plus he got whooped on this immunity case i mean he if you look at the outcome is he left donald trump stronger than when he found him i mean he has been and so you just look at the results he He has been a terrible federal prosecutor, even if you agreed with everything in terms of purpose of the investigation. Merrick Garland, I feel actually that he's not as partisan as people make him out to be. I think actually he turned out to be quite a weak attorney general, and that's the reason.

Because he could have said at the beginning, much like the Supreme Court ultimately said, you know, we're putting this page behind us. We are not going to investigate a former president. We're certainly not going to investigate the major opposition party candidate for president in the middle of an election. So that would have been a strong, controversial. I think that would have been the right thing to do. Or putting it on the other hand, you could have said, starting in 2021, we're going to open an investigation into Donald Trump because of what we all saw on January 6th. He spent over a year and a half dilly-dallying. And then ultimately to a point, Jack Smith, as a special counsel, was in an admission that the

Justice Department couldn't handle this. So I actually think we're going to look back and see. And I say Merrick Garland was a torchbearer for the Democratic Party or for Joe Biden. I think ultimately it turns out he was a weak, vacillating attorney general. He didn't show any leadership. And this is actually my view of the Biden administration as a whole. That lack of leadership just let the machinery of bureaucracy, which is always progressive in nature, just go ahead and do what it wanted to do. And that's Jack Smith. He's the ultimate expression of the unelected professional bureaucracy and the machine. But without leadership, it's not that competent most of the time. Charlie or James, I can't pronounce Scrimetti, so I'll leave that one to you guys.

It's pronounced Skibbity. Charlie, you want to take that? That case? Yes, please. But, John, did you listen to the oral arguments? No, I never do. I can't stand hearing other people talk about the Constitution. Even Clarence Thomas with that beautiful voice. Though he doesn't say very much.

I did read about the oral arguments, but I didn't listen to them. Do you have a view on it? I mean, I will preempt this by saying that to me, it just seems self-evidently ridiculous that the 14th Amendment to the U.S. Constitution, written in 1866, ratified in 1868, would micromanage the state's capacity to prevent the cutting off of the genitals

of eight-year-olds. But perhaps you have a different view, I doubt it. As they say in court, asked and answered. No one's cutting them off, Charles. They're just rendering them useless for the rest of their lives. Let's not go into that. There are a lot of interesting things in the oral argument. And the briefing is really interesting because I read most of the important briefs.

And I learned a lot, actually, about what's been medical information. What's actually been taking place. Yeah, what's actually been happening. But also the prevalence of this disorder. One interesting thing I did not know is that for decades, the number of adults who have this gender dysphoria problem is something like 0.5% of the population. So one question is, why are we reordering all of our social relations and our rules, our bathroom sports, blah, blah, blah, for 0.5 of the population? But here's the interesting thing.

Well, I can answer that, but go on. For minors, for kids, for many, many decades, it was also 0.5% of kids had reported this issue. And then starting about 10, 15 years ago, it tripled to 1.5%. What happened then? Social media, I think. Yes. But this is an interesting question that actually Tennessee and other states that have issued these bans have said is, we're not banning this. We just don't understand the problem yet. We're not saying we could never allow this kind of procedure. But if minors are suddenly saying triple rates, that they have this problem, and adults, the number's flat.

Yeah. Is it really a wise thing to do to allow these kind of permanent surgical changes when we really don't understand what's going on i thought that was interesting factually legally the other thing i totally agree with charlie there's no way the 14th amendment uh recognized was intended to recognize gender dysphoria as a protected class on a par with blacks and women it's just like wait a minute so you have a less expansive view of the 14th amendment than for example justice gorsuch who charlie did listen to the oral argument you should note was utterly silent yeah yes he was and the reason why yeah but the reason why is i think he's embarrassed because the logic that Charlie offered to make fun of comes from Justice Gorsuch's decision about Title VII in a case called Bostock, right, where he didn't ask.

Bostock is, does the 1964 Civil Rights Act provide protections to people based on their sexual orientation, not their sex? But they wish their sex to be in there. And Gorsuch came to a preposterous conclusion, didn't he? Yeah, and he ignored, actually, the way Charlie put the question. Did the people who wrote the 64 Act, would they have ever thought they were providing protections for this?

No. Obviously not. All the evidence was overwhelming. So Gorsuch... You got your living and your breathing, don't you? You got your living and breathing constitution, right? So it has to be elastic enough to accept the definitions, the new brave, new world definitions that we come up with. And if we shake off our old, archaic notions of gender and sex and the rest of it and come into a new world in which these things are understood to be kaleidoscopically varied, well then, of course, the Constitution must bend to that. That's what they say. I mean, that's why this is important to them,

because it is a validation of the whole, not gay rights, but queer rights. The queering of the Constitution in order to make it some sort of, you know, procrustean bed that can be, is what they want. And the line that's being drawn in the sand here is important, is critical, and I'm not going to any conclusion that I can actually think of, because I already passed my segue, I'm afraid. John, you were going to be present for an actual commercial segue, but the moment has been lost. Oh, I've never been in a commercial.

Have you guys finally been sponsored by McDonald's? I've been waiting. No, but it's coming along. Well, I wanted to talk about the Constitution being living and breathing. Of course, I was thinking of breathing, and I was thinking of lumen. As you would do if you had a lumen. You got a lumen, John? Do you got one of those?

I have no idea what that is, but you are going to tell me. I am going to tell you, because with your love of McRibs, it's something that you actually might want to invest in. Lumen is the world's first handheld metabolic coach. It's a device, a handy little device, and might I add a very beautifully industrially engineered one as well. It measures your metabolism through your breath. And on the app, right in your hand,

it lets you know if you're burning fat or if you're burning carbs, and it gives you a tailored guidance to improve your nutrition, your workouts, your sleep, and even your stress management. All you have to do is to breathe into your Lumen the first thing in the morning. You breathe into it, you look at the app, you watch the ball go up and down, you center it. It's very easy. It's fun. And you will know what's going on with your metabolism, whether you're burning mostly fats or carbs. And then Lumen gives you a personalized nutrition plan for that day based on your measurements. It's easy.

You can also breathe into it before and after workouts and meals so you know exactly what's going on in your body in real time. And Lumen will give you tips to keep you on top of your health game. Your metabolism. It's your body's engine. It's how your body turns the food you eat into fuel that keeps you going. And because your metabolism is at the center of everything your body does, optimal metabolic health translates into

a whole bunch of benefits. Easier weight management, improved energy levels, better fitness results, better sleep, etc. Now, you know me, I've been in this low-carb thing for a long time,

and I've got to tell you, this lumen every morning has got me nailed. It tells me how many carbs I can eat. It's like a gift. Here, have this many. And sometimes I go out

and do exactly that. So if you want to stay on track with your health this holiday season, go to lumen.me slash ricochet and get 15% off your lumen. That's l-u-m-e-n dot m-e slash ricochet for 15% off your lumen. Lumen makes a great gift too. And this thing, it's great.

I love to hold it. It's a piece of, it's a thing of beauty. Sits in its little stand. I just, I love it. You will too. And, it's a thing of beauty. Sits in its little stand. I just, I love it. You will too. And like I say, a great gift. And we thank Lumen for sponsoring this, the Ricochet podcast. Well, before we go here, and John is still with us, let's get out of the law for a second here and discuss, if you will, John, I'm sure you've been following this other case in Manhattan where the CEO was shot down in the street and there's an for all the people who are saying that twitter is a cesspool of hate and anti and neo-nazi behavior there's a lot of people

running around on twitter saying good good they got one there's something very disturbing about the reaction that we're seeing to the murder of this guy. It's a great contrast to what we started talking about. Here, on one hand, you've got Penny, who I think is a genuine hero, who just walks onto a subway car and he witnesses this person threatening the health and safety of his fellow pastors, just intervenes to save the life. And conservatives don't like him being prosecuted, and I think rightly want him acquitted or charges dropped. Then on the other hand, you have a guy who clearly carries out a planned premeditated murder. And the liberal blogosphere is saying, what a great hero! Doesn't that just show you the difference in values these days between conservatives and progressives, where you have one group,

loss of life occurred. We're sorry about it, but it was in a way necessary to save the lives of more. Here's, on the other hand, someone who did nothing wrong, who was just walking across the street to go to the midtown hilton by the way i was like he's going to shut down halal guys because if you're back to the midtown hilton the street corner is where the halal guys started and they're still there the best best egyptian food in new york anyway well the the yeah the liberals have finally discovered the idea of a good guy with a gun. Yeah, but they want them to kill corporate executives. I don't know if you guys are watching this TV show, The Jackal.

Have you guys? Oh, yes. Yeah, I love this show. I mean, I remember the original movie, you know, The Day of the Jackal. I think the TV show is really good. And, you know, it's 10 episodes, so it gives you more of the story. They're praising. They're praising a guy who's basically an yeah who goes and plans out the murder and in the and the jackal show he goes killing ceos that's

the main target and i'm sorry to give out this john was this crime was this crime essentially unpreventable or does it indicate a decay in policing in new york when bloomberg was mayor could this have happened i don't see how the level of policing could have stopped someone who's... Got it. I mean, look, this is like Godfather 2. You know, Michael says, if history has told us anything, it's that you can get anyone if you really want to, right? I think that's true. I don't see what police could have done here. Now, I think it seems you know the speculation

But it seems obvious that someone was helping this guy because how did he know? Exactly when the victim was gonna cross the street without any security detail It's a little after 6 in the morning to go from the hotel He's staying across the street to the shareholder meeting and the shareholder meeting wasn't for a few more hours You look at the tape this assassin arrives arrives, I think, five to 10 minutes early, right before. How would he know when this guy was going to walk across the street that he'd have no security where he was going to be exactly in that moment? John, is this a state-level first-degree murder or is this terrorism? i've seen some people suggest that because

the assassination was of somebody who worked in a particular industry and because there were words on the bullet casings and because the assumption is that this was a revenge message driven killing that this could be classified as something other than a first-degree murder that you would see prosecuted in New York all the time I don't think so if I mean it might meet rhetorically what we might call terrorism okay but the the in terms of the criminal law terrorism has to involve some component where the murderer is attempting to use violence to coerce the population, the government or the people of the United States to change a policy. or not it doesn't this just doesn't seem to be i am right going to shoot this guy because i want the united states government to change its medicare reimbursement policies or insurance

policy so legally i don't think you could charge him but right for the the cold-bloodedness of this murder means i don't think there's any lack of things to charge this guy with and you know if new york state were a normal state, you'd be charged with, you know, capital murder with the possibility of the death penalty. But Alvin Bragg's not going to go that far. Who knows if Alvin Bragg will even charge the guy? Well, he did write the, he did write out his manifesto on the bullets and he wrote three words of which have come to be connected with insurance company behavior. So there it is. So it's going to be hard for him to say that he was just temporarily seized by some sort of brain phasm, brain phantasm. No, I mean, this was targeted and this had an ideological component. And it just reminds you how many people are completely at ease with seeing political violence used in the street

if it's in the application of furthering the right thing. But what's amusing, of course, is all these who believe that if if the government just paid for everything then there'd just be more of it we'd get we would have absolutely the anesthesiologist would just you know they'd put that mask on your face for 10 12 hours or so and didn't care what they were paid instead of of course being rationing and uh denial of services and death panels and all the rest of it. Speaking of death panels, this show's dead in the water because it's come to a stop. Because we have to leave.

But what we want to do are a couple of things. We want to remind you the podcast was brought to you by Cozy Earth, our new sponsor. Great sheets. And by Lumen. Support them. Support us. Works out one hand washing the other, scratching the back, and the rest of it you love it and join ricochet.com won't you i mean i mean it's been like 700 podcasts where i've

reminded you of this maybe 701 is the charm but uh go there and you'll find the center right sane civil conversation you've been looking for all your life on the internet i and also if you could review us at apple podcast or any podcast place that takes reviews, we would appreciate it because we like when people say nice things about us. Who wouldn't? If you've got anything bad to say, tell it to us. But you'll have to join Ricochet to do so. How about that for an enticement?

Join Ricochet, pay a nominal fee, and yell at us about what a bunch of idiots we are to your heart's content. And then get squashed by the moderator. John, thanks for joining us today. Charles, as ever, give my regards to Florida. Peter, give my regards to California. I accept your regards from Minnesota, if you have any. And what else can I say except we'll see you all in the comments at Ricochet 4.0.

Next week, guys. Take care, boys. Ricochet 4.0. Next week, guys. Take care, boys. Ricochet. Join the conversation.