Subscribe
Share
Share
Embed
This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm excellent. How are you?
J. Aughenbaugh: I'm feeling a little bit down because I did not apparently get a pardon from our current president.
N. Rodgers: I mean, there's still a month, right?
J. Aughenbaugh: Yes.
N. Rodgers: Your crimes are against humanity. They're not against the federal government, so I don't know if you could be pardoned. That's what your students would say. He doesn't get us our papers back in time. He doesn't get [inaudible], which is funny because you turn around your papers faster than just about anybody. I love that students complain, like, they turn in a paper, and, 10 minutes later, they want to know what the grade is. I'm like, you know I just got 30 papers, right?
J. Aughenbaugh: I've told my students, guys, you might prefer to go ahead and get immediate feedback.
N. Rodgers: You wouldn't like it if you got the immediate feedback that you're looking for for.
J. Aughenbaugh: You want me to take my time, you want me to be well rested, etc. But listeners, if you've not picked up on it, today's episode is in the news, but we're going to do a deep dive into one of the more controversial powers that the United States president has in the United States Constitution, and that is the authority to pardon individuals who have committed crimes against the federal government.
N. Rodgers: It's to grant reprieves and pardons, right?
J. Aughenbaugh: Yeah.
N. Rodgers: Except Aughie going to mention the one thing they can't pardon.
J. Aughenbaugh: For those of you who want to know, the president's pardon power is found in Article 2, Section two clause one of the US Constitution, and it reads the president shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
N. Rodgers: If a justice is impeached.
J. Aughenbaugh: The president cannot go ahead and pardon the justice.
N. Rodgers: All those people who are hoping that something horrible happens to Justice Thomas at some point, that he's impeached President Trump could not pardon him from an impeachment?
J. Aughenbaugh: That's right. There are different types of clemency that fall. Yes, go ahead.
N. Rodgers: Sorry, my question about that is, real briefly, if you don't mind. If for some reason a justice was to be impeached, that would be done by the Senate, right?
J. Aughenbaugh: The House is the prosecution.
N. Rodgers: It starts the impeachment press.
J. Aughenbaugh: The Senate acts as the jury, yes.
N. Rodgers: That basically is a separation of powers. If those two bodies say that somebody should be impeached, then the executive cannot override.
J. Aughenbaugh: That is correct.
N. Rodgers: Those two bodies. It's the separation of that power.
J. Aughenbaugh: Yes. That is correct.
N. Rodgers: To prevent the president from saying, he doesn't seem so bad to me. I think everything's fine.
J. Aughenbaugh: Yeah, and it's deeply rooted in Western law that whoever prosecutes should not be able to also sit as judge.
N. Rodgers: Hence why we say when somebody is acting as judge jury and executioner, it's the all bad channel, because you shouldn't be doing.
J. Aughenbaugh: Those functions are basically separated. At least into two different branches. In the case of impeachment, theoretically, all three are involved because the House brings the charges and prosecutes, the Senate serves as jury. The executive branch would then carry out the impeachment. Let's just say, for instance, the United States Congress successfully impeaches a cabinet level official, then it would be left to the executive branch to actually remove that person from their job. But the judiciary gets involved with impeachment because the Chief Justice serves as the judge of the impeachment trial. One of the great ironies in the hypothetical you just raised, Nia, is that if the House of Representatives attempted to impeach Clarence Thomas for whatever reason.
N. Rodgers: Which you're not suggesting, by the way, it's just a hypothetical.
J. Aughenbaugh: The Senate would act as the jury, but for that trial, the Chief Justice would rule on motions and make sure that the process is fair.
N. Rodgers: He can't recuse himself.
J. Aughenbaugh: Yeah.
N. Rodgers: Not that we think that that's likely.
J. Aughenbaugh: But today's episode focuses on the presidential power to issue reprieves and parts. Basically, there are a number of tools in the president's toolkit in regards to reprieves and parts. A president could pardon somebody, which means, okay, their punishment goes away.
N. Rodgers: They get all their voting rights back.
J. Aughenbaugh: Yes.
N. Rodgers: They are reestablished as a regular person in the system.
J. Aughenbaugh: Yes. An amnesty, a commutation or a reprieve. A pardon releases a person from punishment and restores all civil liberties, as Nia just mentioned. Amnesty is the same as a pardon, but it's extended to an entire class of individuals.
N. Rodgers: You've got an example.
J. Aughenbaugh: President Jimmy Carter who served as president from 1977 until the early part of 1981, gave amnesty to all of the draft dodgers for the Vietnam War, which basically allowed many of them to return from other countries, including Canada and Mexico. An entire class. Commutation reduces the sentence imposed by a federal court. Let's just say, for instance, Nia, you are found guilty of violating a federal banking law. You get five years in a federal prison.
N. Rodgers: I can't do five years. I can't do hard time. Although for money crime, I probably would be in a pretty a club [inaudible] But anyway, if I couldn't do it, I could write to the president and say, please.
J. Aughenbaugh: Yes.
J. Aughenbaugh: Let's say you've served two years, but a president is convinced you should not have received five years or that you are sufficiently repentant. A president can go ahead and say, I'm commuting your sense to time served.
N. Rodgers: But again, only for federal crimes.
J. Aughenbaugh: Federal crimes. A reprieve delays the imposition of a sense or punishment, which means you don't have to go to prison yet. Usually there are conditions attached to a reprieve. It's like if you get community sends.
N. Rodgers: If you're in a drug court. If you go to the drug rehabilitation we will take away the rest of your punishment, but if you don't do that, we will impose the full punishment.
J. Aughenbaugh: Punishment, that's right.
N. Rodgers: Got you.
J. Aughenbaugh: Listeners Nia has already stated one of the most important things you need to remember about the president's power to issue pardons. It's only for federal crimes. A president cannot give you a pardon or commute your sentence or give you amnesty for violation of state law or local ordinances. It's only for crimes against the United States.
N. Rodgers: Aughie 756,000 parking tickets in New York City cannot be pardoned by the president.
J. Aughenbaugh: I can't believe you just shared that.
N. Rodgers: Seriously. How many times have you ever parked in New York City? What, like 5, 10 total in your life? No, you've been to more Yankee games like that.
J. Aughenbaugh: It was more in my youth, and I don't really think the New York police in the 1980s were all that concerned about me violating parking laws.
N. Rodgers: Parking laws. They were worried about Times Square and cleaning up Times Square.
J. Aughenbaugh: There are three important limitations. We've already mentioned one.
N. Rodgers: Federal crimes.
J. Aughenbaugh: Federal crimes. Second, a crime must have been committed for a pardon to be issued. This is going to be an important issue that we're going to touch upon later on this episode about whether or not presidents can issue prospective pardons.
N. Rodgers: You're going to be charged, and I'm trying to get you out of it.
J. Aughenbaugh: We have a really strong suspicion that the federal government's going to charge you with a crime. You must have already committed the crime. Must have already been committed. It's not like a president can go ahead and say, Nia, you are the US Attorney General, and I think that you're a bad person, but I'm going to appoint you anyways as attorney general.
N. Rodgers: But I'm going to give you a get out of jail free card for the next four years. Because that would open people up to going to all kinds of extremes. A crime has to have been committed. It has to have been a federal crime.
J. Aughenbaugh: You already mentioned the other limitation. A president may not issue a pardon in the case of impeachment. Otherwise, there is no limitation. We will get to what that may mean with some hypotheticals in the future.
N. Rodgers: Where did this idea come from?
J. Aughenbaugh: Yes.
N. Rodgers: Is this one of the founders who was like, you know what? President needs this ability to pardon people, or was it just a compromise issue?
J. Aughenbaugh: Well, I get asked this question quite a bit from my students because if they don't like a particular president, they're like, Where does the president get this authority? Well, interestingly enough, like much of American law, the origin of the pardon power is found in English common law, and history. It's known as the prerogative of mercy.
N. Rodgers: When the king could let you live even though you had been convicted of a crime against the crown. The crown could say, you know what? It doesn't seem that bad to me. It's okay. I'm going to let him go. I'm going to let him live.
J. Aughenbaugh: It first appeared during the seventh century, but over time, many kings abuse the pardon power because they would use it as leverage. They would basically go ahead and say if you do what I want you to do, then I'll make your crimes go away.
N. Rodgers: I imagine trump up a crime against this person so that I have leverage.
J. Aughenbaugh: Yes.
N. Rodgers: Because the crown can usually talk people into doing stuff like that.
J. Aughenbaugh: Sure.
N. Rodgers: Yes. Oliver Cromwell would come after you for looking sideways.
J. Aughenbaugh: Pardon power existed in the colonies in terms of each colonial governor had limited pardon power. During the Constitutional Convention, it was our good friend Alexander Hambleton of the musical fame.
N. Rodgers: That's the sound of rolling over and it's great.
J. Aughenbaugh: Who introduced the concept of the pardon power. There was debate whether or not this was a power that should be given just to the president. Should it be shared with the United States Senate?
N. Rodgers: That's an interesting idea the way that approvals of cabinet positions or justices are done through the Senate, similarly, this would be the president proposes a pardon to the Senate and the Senate votes on whether the person should be pardon. That's an interesting idea. That would slow the process down quite a bit.
J. Aughenbaugh: It would act as a check because as we will discuss, occasionally pardons are controversial.
N. Rodgers: Probably would not be a terrible idea in some instances if the Senate was to be involved.
J. Aughenbaugh: But ultimately, the delegates at the convention decided that this should be a solely executive branch power.
N. Rodgers: You mentioned off recording that one of the things they wanted to exclude potentially, was pardons for treason.
J. Aughenbaugh: Correct.
N. Rodgers: Which is interesting. It's interesting from that group of people because, of course, they had just been a bunch of treasonous revolutionaries.
J. Aughenbaugh: Yes.
N. Rodgers: It's an interesting thing that they are turning around and saying, that's the one thing you can't pardon, you can't pardon somebody being treasonous, even though they had all just done it themselves. Fascinating to me. But that didn't end up being something that they put in. But that was part of the discussion.
J. Aughenbaugh: It was part of the discussion, but ultimately the devil.
N. Rodgers: If you wonder if the founders were hypocritical at some points.
J. Aughenbaugh: Yes. There is a great irony that we live in a country, Nia, that is committed to the rule of law when our country was founded on lawbreaking. Because all 13 colonies.
N. Rodgers: Had to do all illegal stuff to get away from the crown.
J. Aughenbaugh: They broke the law when they decided to revolt from the British crown.
N. Rodgers: Then they broke a bunch of laws by throwing away people's tea and throwing away people's stamps and doing all kinds of stuff. There were a bunch of rabble rousers.
J. Aughenbaugh: The colonial charters were very clear. The colonies could not revolt against the crown.
N. Rodgers: The colonists are revolting. Yes, they are.
J. Aughenbaugh: They are breaking the law.
N. Rodgers: This is super executive power, is what this becomes.
J. Aughenbaugh: This is usually pointed to by proponents of the unilateral executive theory as an example of how the executive branch cannot be reined in by either the legislative or judicial branch. They frequently mention the President's pardon power. I'm like, I can't disagree with you on that one because it is solely within Article 2 of the constitution. I can't. They debated it and they decided to give it to the President. The next thing we should probably talk about is before we get to some rather prominent examples, is how often do Presidents use the pardon power.
N. Rodgers: How many blades of grass grow on the White House lawn? There is probably somebody who counts them.
J. Aughenbaugh: The Department of Justice has recorded the number of executive clemency actions from 1900-2017. The number is 22,485.
N. Rodgers: That is a lot.
J. Aughenbaugh: That is a lot. But the actual numbers of these clemency grants have actually been declining.
N. Rodgers: Interesting.
J. Aughenbaugh: From the beginning of Reagan administration in 1981 through the Obama's Presidency, there were 3,069 acts of executive clemency. There is considerable variation. Nia, can you guess which President from Reagan through Obama, which President issued the most pardons and commutations?
N. Rodgers: Wow, Reagan, Clinton. He seems the guy who'd forgive everybody. I feel your pain.
J. Aughenbaugh: I understand your logic, but actually, interestingly enough, it was Barack Obama, 1,927.
N. Rodgers: One thousand in eight years.
J. Aughenbaugh: In comparison, Bush, 43, issued the fewest number, only 200.
N. Rodgers: That doesn't surprise me, he was the governor of Texas. I'm not trying to be [inaudible] but Texas is not known hugely for its forgiveness. That put you to death for jaywalking, so you got to be careful in Texas.
J. Aughenbaugh: No, listeners, she is just kidding.
N. Rodgers: I'm kidding. Jaywalking is not a capital crime.
J. Aughenbaugh: Jaywalking is not a capital crime, no, it's not. The Supreme Court in 1866 said that presidents may issue pardons at any time after the commission of a federal crime. This has become one of the more, shall we say, debated points,.
N. Rodgers: What's the name of that case?
J. Aughenbaugh: Ex parte Garland.
N. Rodgers: I'll link to that.
J. Aughenbaugh: A question that arises is, can you be given a pardon before federal charges have been filed or a sense been imposed after you were convicted? For instance, President Gerald Ford pardoned Nixon, even though Nixon had never been charged or sentenced for a crime.
N. Rodgers: The key here is not being charged, the key here is committing the crime. If you have committed the crime itself, even if nobody notices for a while.
J. Aughenbaugh: Or charged you with it.
N. Rodgers: You can be pardoned. But you do have to have committed a crime. You can't be pardoned preemptively as a go ahead and do whatever you want to do. It doesn't work like that.
J. Aughenbaugh: That's right. The classic example is President Lincoln issued preemptive pardons, and so did Jimmy Carter in regards to those who committed crimes during a war. Lincoln went ahead and gave a whole bunch of pardons to a whole bunch of people in the South, for their actions against the union that they committed during the Civil War.
N. Rodgers: Which makes sense because prosecuting that would be a nightmare.
J. Aughenbaugh: It would have further divided the country. Jimmy Carter had the same logic when he pardoned Vietnam draft dodgers and evaders. They had not been charged, but if they returned to the United States, they could have been, because of their actions that they already committed.
N. Rodgers: Got you.
J. Aughenbaugh: Now, one of the questions that arises with the President's pardon power is, if you accept a pardon, are you admitting guilt?
N. Rodgers: Well, I would think, yes. To me, pardoning is the admission of a guilt that something needs to be forgiven. Why would you need to pardon if you weren't guilty of something?
J. Aughenbaugh: I'm going to give you a counter. What if you were found guilty for a crime and you still maintain you were not guilty of that crime?
N. Rodgers: That's a fair point, except that I'd want to stay out of jail, so I would take the pardon anyway.
J. Aughenbaugh: Yeah, I'd probably be willing to go ahead and say, yeah, I did that. I just want to get out of jail.
N. Rodgers: Exactly. [OVERLAPPING] Or I did other stuff you don't know about, so I'm willing to cope to something, to stay out of jail.
J. Aughenbaugh: Okay. But if you maintain your innocence throughout, okay?
N. Rodgers: Yeah, that's an interesting question. If you maintain your innocent and somebody offers you a pardon, and you say no, because you want to be able to say, I didn't take a pardon because I didn't do this thing. I don't know. I guess if you're willing to do the time over that.
J. Aughenbaugh: It's unclear as to whether or not accepting a pardon is legal admission of guilt. On one hand, Gerald Ford argued that when Nixon accepted his pardon from President Ford, he was quoting a Supreme Court ruling from 1915, Burdick versus the United States, that Nixon was acknowledging his guilt in the Watergate cover-up.
N. Rodgers: Because he accepted the pardon?
J. Aughenbaugh: That's right. Other presidents, however, have not shared Ford's belief that a pardon acceptance signifies guilt, for example, Bush 41 pardoned former secretary of defense Weinberger and the rest of the folks who were involved in Iran contra because he felt that they were innocent of wrongdoing. He never asked them to accept guilt because he didn't think that they were guilty of anything. All right.
N. Rodgers: Yeah, that's complicated. I mean, I guess it just depends on how the president, oh my gosh, it's that black dress or that blue dress. What color is the dress? It's in the eye of the beholder.[OVERLAPPING] Is a pardon a signifier of guilt? That's in the eye of the beholder. It's in the eye of the president.
J. Aughenbaugh: That's right.
N. Rodgers: Can I give everybody a quick overview of the steps that one has to go through to get a pardon?
J. Aughenbaugh: Yeah, and I was hoping we were going to touch upon this, Nia, because listeners we [OVERLAPPING] we are dealing with a federal government, if you will, power. It has become extremely bureaucratic.
N. Rodgers: Oh, of course. There's a form for that, Aggie. There's a form for that.
J. Aughenbaugh: Nia, lay out the steps.
N. Rodgers: First of all, when I am pardon attorney, which no kidding, there is the office of the pardon attorney.
J. Aughenbaugh: In the Justice Department?
N. Rodgers: In the Department of Justice.
J. Aughenbaugh: Yes.
N. Rodgers: I want to be this thing now. But anyway, you have to complete an application form because, of course, there's a form. You have to indicate the date and place of your conviction. You have to describe the nature of the offense. You have to include the sentence that you received, and then you have to state when you were released from prison, probation or parole. If that has happened. Now, if you're looking for a commutation, that would not have happened yet. Then this is my favorite part. You have to submit three, count them three character references. You can either do that on the form in the application or you can get letters of recommendation from people. Three people outside your family have to, well actually it doesn't say whether it's your family or not, but they have to be knowledgeable about the offense. Then they have to be notarized, and those are turned in. Then you wait for a review. The review is done by various different departments, so if you committed a military crime, defense might be looking at it. If you committed something against Homeland Security, they might be looking at it. Different departments look at the crime to see whether you deserve a pardon or not.
J. Aughenbaugh: Well, we'll stop right there because the IRS might believe that you've been one of the biggest income tax evaders for decades. They don't want you pardoned because your prosecution and conviction is supposed to be a deterrent for other people from doing that. They don't want the message to go out, hey, it's quite right to go ahead and try to scam the federal government in regards to your taxes for decades. You're going to get the departments to where you may have committed the crime to weigh in on this. Please continue.
N. Rodgers: Well, and the other part of that is there is some question about, well, if one person got pardon for it, would you then have to pardon if there was a group of people who did it?
J. Aughenbaugh: Yes.
N. Rodgers: Then there becomes this other question of, well, do you have to pardon all these other people, too? Then me as the pardon attorney, would write a recommendation to the president.
J. Aughenbaugh: Yes.
N. Rodgers: Because basically what I have done is vet you to make sure that you're not some, so the president is not embarrassed by the pardon. As we know, there have been pardons that have been embarrassing to presidents because afterwards, it's come out that somebody was even more of a criminal than they thought they were or whatever. But theoretically, this vetting process helps to end that. That letter goes to the president, and then the president decides. You could go through this whole process, get the pardon attorney on your side, get the department on your side that you've offended against, and the president could still say, no, not feeling it and not give you the pardon.
J. Aughenbaugh: That's right.
N. Rodgers: Which I apparently happened in George Bush's case. If he only had 200, He was not feeling it on a lot of. But that process, with all that paperwork and all the vetting and all this stuff is not a short or simple process. This is not a thing that is going to happen next month. This is a thing you're going to have to settle in on and wait because those departments will take as long as they're going to take in order to make sure that when they okay your pardon, they're not going to have egg on their faces.
J. Aughenbaugh: That's right.
N. Rodgers: Oh, well, you didn't know about August's 764,000 parking tickets. Do you really want to pardon this guy? Well, all those states don't get to weigh in and localities don't get to weigh in. This is all at the federal process, so it's only federal departments that weigh in. But I'm telling you, being the pardon attorney, what a great job. Except also, what a sad job being part. Aggie doesn't have numbers about the number of people who apply. But it's got to be huge.
J. Aughenbaugh: Oh, sure.
N. Rodgers: It's got to be thousands. If we've had 22,000 in the last hundred years that got it, maybe that's a tenth of the people who have applied for it?
J. Aughenbaugh: Yeah, I mean, I thought at minimum it would be at least a fifth of those who have actually specifically applied and requested.
N. Rodgers: Yeah. It's not a guarantee by any means.
J. Aughenbaugh: No.
N. Rodgers: There are people who are just full of themselves who apply just to see what happens.
J. Aughenbaugh: Yeah. But it's a lengthy process.
N. Rodgers: But it brings us to the question of, can a president pardon themselves? Because you'd still have to go through that process. You'd still have to apply to the pardon office. You'd have to do all the affidavits. You'd have to be investigated by the department that you theoretically offended against.
J. Aughenbaugh: Yeah, because this is a process that is laid out in Justice Department internal rules.
N. Rodgers: You'd either have to change those rules?
J. Aughenbaugh: Yeah, or completely ignore them.
N. Rodgers: Which, I mean, I guess you could if you're president.
J. Aughenbaugh: But, I mean, in legal analysts are divided on this.
N. Rodgers: On whether a president can self-pardon?
J. Aughenbaugh: Yeah, there's no clear consensus. Some constitutional scholars argue that because the Constitution doesn't explicitly prevent it, and there are minimal restrictions placed on the power in Article 2, then theoretically, a president could pardon themselves. Other scholars argue that the president cannot pardon him or herself because it's well established in American law that no one can be a judge in their own case.
N. Rodgers: Judges don't judge their own cases. If they're brought up on a charge, they have a lawyer. There's a different judge who sits in achification of them. Because that'd be really weird. No, I don't think I'm guilty of anything. Moving on, I mean, who would find themselves guilty of something?
J. Aughenbaugh: Well, and that violates checks and balances.
J. Aughenbaugh: What was interesting was that when Nixon was going through Watergate, he considered issuing a self pardon before he resigned. He asked the Justice Department to produce a memo as to whether or not the president had the authority to self pardon. The Justice Department said, no, the president did not.
N. Rodgers: Be careful what you ask for.
J. Aughenbaugh: But in preparing for this episode, Nia, I read through well over a dozen law review articles, and legal scholars are all over the map on this one.
N. Rodgers: I'm not surprised by that because I would think that even if you could do it, I'm not sure you should do it because it sets an unfortunate precedent of the president is above the law. The president can decide his own law, his or her own law. Without regard to the normal laws that everybody else has to live through and the normal procedures that everybody else has to go through. Nobody else gets to skip all of that process and go to the president and say, I want to pardon, because you know the president gets letters all the time, and I'm sure they get forwarded to the pardon attorney. Like, you can't start with me. You have to start and go through the system, the way the system works.
J. Aughenbaugh: My own personal opinion is I'm against the idea for two reasons. One, the old at a person cannot sit in judgment of their own behavior really resonates with me. That's why we have courts. That's why we divide prosecution from the judicial function. The other thing is, I think it would be a terrible precedent, Nia.
N. Rodgers: Yeah. I agree.
J. Aughenbaugh: Because it doesn't just cover a president and their behavior that you like, if then it would be established for presidents you may not like.
N. Rodgers: Right, and it gives the president license to do things knowing that he can pardon himself.
J. Aughenbaugh: Yeah.
N. Rodgers: Which is a dangerous precedent to set. The idea that a president really could go out on seventh Street and shoot somebody and not be held accountable, right?
J. Aughenbaugh: Yeah, right.
N. Rodgers: I know Donald Trump was using hyperbole when he made that statement. But it would open the door to, okay, well, I can do anything I want because then I can pardon myself at the end. Like, that's not a thing we should, I think, consider. But you have some really interesting past cases of pardons. When something is in the news, it tends to get talked about it in this sort of breathless. This is the first time ever kind of way this has ever happened to you, Oh, dude, there have been so many controversial pardons over the years and it starts at the very beginning. It starts really early on in the history of the country.
J. Aughenbaugh: Yeah, with the Washington Administration. In the first example, listeners, I'm going to mention, even gives us context for whether or not President Trump pardons, those who participated in the insurrection at the Capital in 2021.
N. Rodgers: J6, he's calling them.
J. Aughenbaugh: Yeah.
N. Rodgers: Because we got to give everybody a sound bite name.
J. Aughenbaugh: Yes, right. It's got to be able to fit on a social media post.
N. Rodgers: That's right, 150 characters or whatever it is.
J. Aughenbaugh: In 1794, yes, I'm going that far back listeners, there was a group of whiskey producing Pennsylvania farmers. God bless them, who took to the streets and burned the home of the local tax inspector because they did not want to pay taxes, Excuse me, federal government taxes on their production of whiskey. Spurred on by his Secretary of the Treasury, Alexander Hambleton, Washington sent a 13,000 strong militia into Western PA to quell the rebellion. For our native born American listeners, this is the infamous Whiskey Rebellion. 20 members of the mob were arrested, two were convicted of treason and sensed to death by hanging. Washington, however, the following year, decided to pardon both of those individuals, because he wanted to avoid further, if you will, discontent. Yes.
N. Rodgers: Which makes sense if you had put those guys to death, I'm sure there would have been a response.
J. Aughenbaugh: Yes, and, of course, one of the great ironies about sending federal troops to quell the whiskey rebellion is that a number of our framers were actually whiskey producers themselves, and many of them found ways to avoid paying those taxes.
N. Rodgers: Hypocrisy. You began early in this country.
J. Aughenbaugh: Yes, right. But there have been other infamous in listeners, you've heard me say this before. One of my joys of doing research for our podcast episodes is that I end up finding little nuggets that I did not know and just completely fascinate me and spur on my curiosity. The next example is a really good one. For those of you who don't know, one of the founders of the Mormon religious faith is an individual by the name of Brigham Young. He was also responsible for moving the Mormon, if you will, congregation and organization to Salt Lake City, and he ran afoul of federal law for various renegade behavior.
N. Rodgers: He thought that he had moved beyond the reach of the federal government by going all the way out into Utah.
J. Aughenbaugh: That's right.
N. Rodgers: Next to a big Salt Lake, which he thought nobody would want, because it was full of salt. He was right about that part. But I mean, he thought he was beyond the reach of the federal government, but there were already established groups in California, so nothing was beyond the reach of the federal government.
J. Aughenbaugh: Yeah. The federal government led by President James Buchanan was concerned that Brigham Young would basically turn Utah into a theocracy.
N. Rodgers: Which probably was the goal.
J. Aughenbaugh: Yeah, probably. There are historical papers that indicated that that may have been Brigham Young's intent. But Young's followers participated in a year long standoff with the US Army and this is known, particularly among Utah residents as the infamous Utah War. But it was largely a war fought without violence, except for.
N. Rodgers: Sit skirmishy, but people didn't really get hurt except.
J. Aughenbaugh: September of 1857, a bunch of Latter day saints killed over 100 civilian members of a California bound wagon train. To avoid further escalation of this war, and basically requiring Young to back down. President Buchanan offered a pardon as part of a compromise with the Mormons.
J. Aughenbaugh: Theoretically a whole bunch of young supporters could have been arrested for committing murder on a federal territory, which would have violated well established federal law. Go ahead Nia. Did you want to say something?
N. Rodgers: Just as a side note, it seems to me that presidents use pardon powers in some instances, not because they think the individual actually needs pardoning or should be pardoned, but because they want to stop a rebellion/war/whatever.
J. Aughenbaugh: Yes.
N. Rodgers: If Lincoln had not pardoned large groups of people, we would probably still be divided as a nation north to south in terms of the civil war. That would have really caused a huge division in the country and similarly, a huge division after Vietnam, because while Vietnam was popular at the beginning, it was quite unpopular at the end of the war. People who dodged the draft were not seen in the same criminal way as they were at the beginning of the war.
J. Aughenbaugh: There is a theme with some of the most infamous pardons Nia, and I'm glad you brought this up. You could put Lincoln's pardon of many of the Confederate soldiers and sympathizers in this category, what Buchanan did with the supporters of Brigham Young, Carter with the pardons that he gave the Draft Dodgers for Vietnam. Even Ford's pardon of Nixon, which at the time was severely criticized.
N. Rodgers: People wanted him to be punished, but we needed to move on.
J. Aughenbaugh: That was Ford's justification. Ford actually appeared in front of the United States Congress members of the Congress were really upset when Ford announced his pardon of Nixon. Ford basically said, "The country could not heal if there was a protracted, if you will, litigation over Nixon's role in the Watergate cover up."
N. Rodgers: Which would have been true of all of those instances. The nation could not heal from the Civil War. The nation could not heal from Vietnam.
J. Aughenbaugh: Listeners, I take you back to the origins of the president's pardon power. It's this notion of a prerogative of mercy,
N. Rodgers: I can see Donald Trump using that argument about the January 6th insurrectionists.
J. Aughenbaugh: Yes.
N. Rodgers: If we're going to heal from that question, if we're going to heal from that violence that event, then how are we going to do that? I could see him using that as these past events as mirrored. But then there's stuff where it's not about any larger concept. It's about a straight up individual. It's just about this person and how a president feels about this person.
J. Aughenbaugh: I'm going to mention Jimmy Hoffa. For our non-American listeners, James Hoffa was one of the most famous labor leaders in the United States.
N. Rodgers: He were the Teamsters, didn't he?
J. Aughenbaugh: Yes, he did. But he was also arrested and convicted. He was a target of a long standing investigation. Starting with the Kennedy administration, culminating with the Johnson administration because Hoffa basically maintained control of the Teamsters by metaphorically getting into bed with the mob.
N. Rodgers: He got in trouble for that, though, didn't he? Did he get in trouble for jury tampering? Basically was like you should vote my way or your knees will feel bad about it tomorrow.
J. Aughenbaugh: He was convicted in two separate trials and was sentenced to eight years for jury tampering and additional five years for mail fraud and embezzling and improper use of Teamster funds. I think it was in 1970, so he had been in jail for three years. He got a pardon from Nixon, and the condition of his pardon was he could no longer participate in Teamster activities, but critics of Nixon giving him that part argued it was a backroom deal between Nixon and the Teamsters because Nixon wanted to expand the reach of the Republican Party into unions.
N. Rodgers: Whatever else you may say about him, he was inordinately popular with his Teamster members. They loved him. If he had said, we're going to get behind Nixon, they would have said, yes, sir, we are. Isn't he buried under a football pitch somewhere or under a home base in the Yankee stadium or something. I can't remember. There's all rumors about Jimmy Hoffa because Jimmy Hoffa just disappeared.
J. Aughenbaugh: A few short years later, in 1974, he disappeared from a parking lot of a Detroit restaurant. His body's never been recovered. It was widely believed that he was the target of a Mafia assassination. There's all kinds of rumors he was buried under the Meadowlands, which is a football stadium in New Jersey.
N. Rodgers: He was probably not buried in some well-known place, but the likelihood is that the Mafia killed for falling out of line. That's what happens when you fall out of line.
J. Aughenbaugh: Because he made certain promises to the mob and he could no longer fulfill them as one of the conditions of his pardon because he could not have any interaction with the Teamsters if he wanted to get out of jail.
N. Rodgers: Well, and the other part of that is way to be handicapping the man from the only thing he knows how to really do. That's the other thing is that punishment is really hard. That pardon is a harsh punishment, but we have one more before we get to the Young Mr. Hunter Biden.
J. Aughenbaugh: That is in 1974, Patty Hurst the granddaughter of the infamous newspaper CEO, William Randolph Hurst, was kidnapped and held for ransom by a radical guerrilla group. I like how this is described in so many media reports.
N. Rodgers: I'm not sure if there's a non-radical guerrilla group.
J. Aughenbaugh: Group, yes.
N. Rodgers: I don't think you're like a casual guerrilla group or a you're a lazy guerrilla group. I don't think that happens, but anyway, so radical guerrilla group.
J. Aughenbaugh: The Sibanese Liberation Army, the SLA, they took her hostage.
N. Rodgers: Can I say, by the way, the Symbionese Liberation Army liberated money out of banks.
J. Aughenbaugh: Yes, they did.
N. Rodgers: That's what their liberation was. If you hear sarcasm in my voice it's because there is some.
J. Aughenbaugh: They liberated a lot of bank money.
N. Rodgers: I don't know what their overall goals were, but they were also arming themselves. That's what they were doing with the money was buying arms. But anyway they capture for ransom.
J. Aughenbaugh: They wanted a ransom, but eventually it became obvious that perhaps she had suffered the infamous Stockholm syndrome because she began to participate in some of these bank liberation operations, otherwise known as Bank Ise.
J. Aughenbaugh: She took a new name. She was no longer Patty. She was, what is it, Tanya. Yes. In a couple of the bank heists, there is a video of her holding a rifle as they were holding up banks. Eventually, the FBI captured most of the SLA members, including Patty slash Tanya Hurst. Hurst's attorneys argued that she had been brainwashed and abused, but she still got a seven year prison sentence for bank robbery. President Carter judged the punishment as too harsh and he commuted her prison sense after she had served less than two years behind bars. In 2001, at Carter's urging, President Bill Clinton in one of his last official acts as president, gave her a full pardon. Yes.
N. Rodgers: The SLA just as a side note, and this is what makes me cynical about this, is that they were a left wing group. They were feminists. They were anti racist. They were anti capitalist. Hence, the whole stealing of money. But they also shot some people and did some pretty awful stuff. But their theory was that they could create this left leaning utopia. There's a cynical part of me that wonders if Carter was not sympathetic to some of that cause. Clearly not in the murdering of people cause Jimmy Carter was a pacifist. I think he would not have been for that.
J. Aughenbaugh: But I public statements, President Carter indicated that he believed that one Patty Hurst had been brainwashed, that she was a young impressionable person who suffered from Stockholm syndrome. Then he said too she demonstrated when her sense was commuted with the rest of her life that she was making a positive difference and thus is the reason why she should receive a full pardon. That's all part of Jimmy Carter's Christian ethic, which is repentance.
N. Rodgers: You can repent and you can come back from things.
J. Aughenbaugh: Then you can find redemption. But the reason why listeners, we decided to do this particular episode and the focus of the last few minutes of today's podcast episode is on Sunday, December 1, President Joe Biden issued a pardon of his son Hunter. Hunter Biden had previously pled guilty to lying on an application to get a gun and for multiple counts of income tax evasion.
N. Rodgers: He committed the crimes. There's no question that he committed the crimes.
J. Aughenbaugh: Yes.
N. Rodgers: One of the first rules of pardons.
J. Aughenbaugh: On the line on the gun application, he more than likely would have received a suspended sentence. Probation probably up to six months. But it's the second one.
N. Rodgers: A gun was his first offense with that.
J. Aughenbaugh: He basically lying on.
N. Rodgers: Form to the government. Big surprise. How many people have done that?
J. Aughenbaugh: They may have done it inadvertently.
N. Rodgers: His was advertent, by the way. He was not supposed to wasn't it part of a drug yeah the rehabilitation or probation.
J. Aughenbaugh: One of the questions on the application is, do you use or have you used drugs? He said that he didn't even though at the time he was going through rehab for drug addiction.
N. Rodgers: He could have done that.
J. Aughenbaugh: But the more serious was the income tax evasion. He was facing up to 17 years in federal prison and owed over $1.3 million in fines. Because these were multiple counts of income tax evasion, it was considered a felony per federal law. Now, first of all, and I know this really upsets you, Nia, President Biden had stated numerous times.
N. Rodgers: Categorically.
J. Aughenbaugh: That he would not pardon his son if his son was found guilty of violating federal law.
N. Rodgers: I will let the justice system play out. He categorically said he would not do this.
J. Aughenbaugh: Yes.
N. Rodgers: I'm personally mad at Joe Biden 'cause I'm like dude, you straight up lied. You just lied.
J. Aughenbaugh: He lied.
N. Rodgers: Or maybe at the time you believed you would not do that, but partly can I just make a side note here before we go on? Listeners, if you are ever going to be president of the United States, do not categorically say anything. Don't categorically say you will not raise taxes, 'cause then you'll get George Bush where you will have to raise taxes. Do not categorically say that you will not invade Haiti because you will end up invading Haiti, or something. When people say, are you going to pardon your son, you should say something along the lines of, I have to see how things play out, and I'm hopeful that the justice system will do right by my kid or whatever. You say something generically like that, and then that way, you are not later accused of just straight up lying.
J. Aughenbaugh: You give yourself some wiggle room because otherwise, your hands are tied once you go ahead and say, I will not pardon my son if he is found guilty.
N. Rodgers: Then you do it. Sorry, I'm personally aggravated by that. I'm aggravated by presidents that say, I will never. Don't say that. You don't know what circumstances will draw you to do something.
J. Aughenbaugh: Because if history has taught us anything, you can have strong convictions going into the office of president, but then the world happens.
N. Rodgers: Exactly.
J. Aughenbaugh: There's no other way to put it.
N. Rodgers: I don't know that George Bush even considered invading Afghanistan or Iraq. But then 911 happens, and now he's like, Well, I guess we're going to war. I don't know about Iraq. But Afghanistan, for sure. Anyway just don't do it.
J. Aughenbaugh: The thing that is most troublesome to me here is the stunning scope of the part because it covers any offenses against the United States, which he has committed or may have committed or taken part in during the period of January 1, 2014 through December 1, 2024. That's nearly 11 years.
N. Rodgers: It's well before Biden's presidency. You know what I mean? Cause Biden's presidency only started in 2020.
J. Aughenbaugh: Yes.
N. Rodgers: You're talking about an additional six years.
J. Aughenbaugh: It covers any crime that he might have committed.
N. Rodgers: It makes me wonder what other shoe is going to draw. That's my first thought was, Wow. By giving somebody that blanket pardon, what you're saying is, y'all don't have any idea. There's way more stuff to come out, which may not be true, but it certainly looks like it might be true.
J. Aughenbaugh: It begs that question. I pointed this out to my students.
J. Aughenbaugh: The next longest period of time covered by a pardon was Ford's pardon of Nixon for any crimes he may have committed while he was president.
N. Rodgers: Which is eight years?
J. Aughenbaugh: Well, no, it was five years because he didn't finish his second term.
N. Rodgers: Right. Thank you.
J. Aughenbaugh: It was 1969 and 1974. This is double the length of time.
N. Rodgers: May have committed or may have taken part in.
J. Aughenbaugh: Yes.
N. Rodgers: That's a pretty wide blanket we're creating out there.
J. Aughenbaugh: I get it. Here's the other thing that really troubles me is, and I get Joe Biden had divided loyalties because, on one hand, he's president, on the other hand, he wants to take care of his kid. But that nepotism, we've never even seen that with a pardon. The closest we have seen with that nepotism was when Bill Clinton pardoned his half-brother Roger Clinton. But that wasn't even his blood relationship.
N. Rodgers: Donald Trump pardoned Jared Kushner's father.
J. Aughenbaugh: The Charles Kushner. That's his daughter's father-in-law.
N. Rodgers: Right.
J. Aughenbaugh: Okay?
N. Rodgers: But this is really tight relationship. I want to put a question to you.
J. Aughenbaugh: Yeah.
N. Rodgers: Do you think that in part Joe Biden didn't want to die while his son was in prison?
J. Aughenbaugh: Sure.
N. Rodgers: With 17 years, he's not going to live 17 years. Joe Biden is not going to live 17 years. I wish him all the best. But nobody's health is that good these days generally speaking in the United States. If he were living on Okinawa, maybe. Because the Japanese live to be quite old.
J. Aughenbaugh: Biden went ahead and said, Nia, in his statement announcing the pardon that the prosecutions of his son were politically motivated. But I got to tell you, I'm having a hard time understanding that particular argument when the charges were brought by special counsels appointed by Biden's own Attorney General Merrick Garland.
N. Rodgers: Is it politicized? Sure. Is it politically motivated? I don't think so.
J. Aughenbaugh: How could it be politically motivated when it's your own justice department? Again, Nia, as you pointed out just a few moments ago, do people lie on purpose or inadvertently when they fill out federal government forms? Sure. Do they get jail time or prison time? Probably not.
N. Rodgers: But he wasn't going to get it for that anyway.
J. Aughenbaugh: He wasn't. It's the income tax evasion.
N. Rodgers: Which people do go to prison for on a not-infrequent basis.
J. Aughenbaugh: It's his own presidential administration who asked Congress for millions of dollars to prosecute who? More income tax evaders.
N. Rodgers: Yeah.
J. Aughenbaugh: You lost me on that one. I can't go there. That's a bridge too far. I can accept you're trying to be a good parent. I can accept the fact that you're trying to give your son a second chance to redeem his life. I get all of that, but the scope of the pardon is in my mind, extremely troublesome.
N. Rodgers: Yes, such a terrible president.
J. Aughenbaugh: There are so many negatives to this pardon. If I'm a member of the Democratic Party I don't know how I could say with a straight face that my party is the party of the rule of law when you've just got done spending basically the last eight years criticizing the Republican Party in the former presidential administration of Donald Trump. How can you say that?
N. Rodgers: Well, now who is Donald Trump going to pardon for the last 25 years of their crimes or the last 50 years of their crimes or their entire life of crimes or what? What we really should have is a law where the president can only pardon people within their presidential term. I can only pardon you for stuff that I'm sitting in judgment. I don't know. That's weird. Well, I guess you couldn't do that because then the presidency changed over. No, you couldn't do that. Now that I'm thinking it through that's a terrible idea.
J. Aughenbaugh: But only because some people may have been put away for decades ago or years ago.
N. Rodgers: And it was incorrectly done wrong. That's true. It's a bad idea.
J. Aughenbaugh: It's the prerogative of a mercy, and I get why he may have wanted to do this as a parent. But as a president?
N. Rodgers: No, you would do this for Mac.
J. Aughenbaugh: Yeah.
N. Rodgers: If Mac did something you would want to protect her from her bad choices. That's what he's doing with Hunter. He's protecting his last child from bad choices.
J. Aughenbaugh: I get that. On the other hand, you're a president, which means that you have a responsibility that extends beyond your responsibility to your president. That's part of the deal when you decide to run for the office of president and you get elected. You're not just responsible for your own child, your spouse, your family members, you're responsible for everybody who lives in the United States.
N. Rodgers: When China gives a Ming vase, they're not giving it to you. They're giving it to the Smithsonian, so that it's for the whole country to come and look at it. As president, there are things that and I know that's a weird example, except what I'm thinking of is all those times that presidents get special perks.
J. Aughenbaugh: Yes.
N. Rodgers: You have to be careful about how those perks look and the precedent you're setting by either accepting or not accepting or whatever those perks. I don't know. This is one of those things where I really think that it opens the door to Donald Trump pardoning people who-.
J. Aughenbaugh: Participated in the January 6, 2021 interruptions?
N. Rodgers: Well, and I'm not even thinking about them because now I'm starting to think that I could understand his justification there. But I'm thinking about, what did you say about Stephen Miller with his creepy eyes? All his creepy-eyed friends? Pardoning them because if you can pardon Hunter Biden why can't you pardon these guys? Why can't you give them a 15-year pardon? Roger Shonan would love a 15-year pardon.
J. Aughenbaugh: Well, think about Steve Bannon.
N. Rodgers: It opens the question as we've talked about before through this podcast, and the one that I think we should end on, which is this idea of, if you know that you're going to get pardoned your behavior can be considerably more reckless than it would be if you thought there was never going to be a pardon in your future.
J. Aughenbaugh: Yes. I know we should not make light of this, but I got to wonder if Joe Biden's increasingly, what's the word I'm looking for?
N. Rodgers: Deleterious mental health.
J. Aughenbaugh: Yes, it's not impacting his judgment here because this is a guy who has for multiple decades in public service talked about institutional norms. He's basically rewriting an institutional norm as he's leaving office. It's extremely uncharacteristic. I got to wonder what's going on here. Bad stuff.
N. Rodgers: Yeah. He's opened the door.
J. Aughenbaugh: Yeah.
N. Rodgers: We'll see who walks through it and how they walk through it. But I'll tell you about something that I'm excited about.
J. Aughenbaugh: What's that?
N. Rodgers: Before we go. I want Donald Trump to try to pardon himself. Because I want to see what happens. I want the system to play out and see what happens. If we have this constitutional question that we've had for 250 years, can the president pardon himself? Let's find out. Let's find out what the courts think of it. Let's find out what the populace thinks of it. If that is something that we're willing to agree to, then in fact what we have is a short-term king.
J. Aughenbaugh: Yes.
N. Rodgers: If it is not something that we agree to, if it is not something that we think is acceptable for our leadership, then it pulls us back from the brink of authoritarianism.
J. Aughenbaugh: Yes.
N. Rodgers: Because it gives us a chance to say, no you will be held accountable. You will not be able to just pardon yourself and walk away. There's a part of me that hopes he pushes that boundary, and we find out.
J. Aughenbaugh: As a constitutional law teacher, I'm very fond of saying Donald Trump is the constitutional law gift that just keeps on giving.
N. Rodgers: Well, that's a good way to end the holiday. The last recording of the holiday. He is the gift that keeps on giving to the administrative law teachers in the world.
J. Aughenbaugh: Joe Biden is weighing on in. Hey, thanks, Joe.
N. Rodgers: He's like no don't forget me, Uncle Joe, I give presents too.
J. Aughenbaugh: Thanks, Nia.
N. Rodgers: Well, on that happy note, I'll see you next year, Aughie. Thank you.
J. Aughenbaugh: Take care.