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Brian Lehrer: Brian Lehrer on WNYC and one of the stories to look out for today on this last day of Trump's presidency is the list of people the outgoing commander in chief will issue pardons for. He's expected to issue at least 60 pardons and commutations in his last hours as president.

There is precedent for this sort of thing. For example, on Bill Clinton's last day in office, he issued 140 so-called 11th-hour pardons. With me for a few minutes to talk about Trump's pardon power and its implications is Jami Floyd, Senior Editor for Race and Justice and Legal Editor here at WNYC. Hey, Jami, always great to have you on the show.

Jami Floyd: Hello, Brian.

Brian: Why does the president get this pretty unlimited pardon power?

Jami: Well, it comes from the constitution and it is very directly derived from the constitution with this language, quote, "Power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment, go to the presidents," and the executive branch, and governors also have this power, but the presidents' derives directly from the constitution.

That's where it is and where it comes from. Its power is essentially one for mercy, it's a mechanism for mercy, it's to temper any harsh or inequitable or racist effects of our criminal justice system.

Brian: Why is the word impeachment in there? I'm sure some of our listeners' ears perked up when you said except in cases of impeachment, Trump has been impeached twice. He just hasn't been convicted by the Senate of the impeachment charges. What did the constitution mean to say just using the word impeachment, which only refers to the indictment?

Jami: Well, I think they're also thinking about impeachment of other officials. It's not just a president who can be impeached but other officials, judges and Congresspersons, state officeholders, et cetera. Impeachment being a political act as much as a legal one, I don't think the founders, the framers wanted the president to have a power to reach into that kind of a political proceeding.

Impeachment is different from a criminal indictment and the constitution is giving the president this power of mercy, this pardon power with regard to federal, and we'll talk about that in a minute, convictions and crimes. This is about the legal system rather than the political impeachment process. We've talked about that distinction many times before, Brian.

Brian: Right. When you say federal, I think most of our listeners know where you're going to go with that, which is to say Trump could pardon people as it pertains to federal crimes, but not state. With respect to pardoning himself, which is where this usually comes up if that turns out to be constitutional, he could pardon himself and it doesn't protect him from Letitia James, the New York State Attorney General, or Cy Vance, the Manhattan DA, right?

Jami: That's right, and any of the other pardons that he's already issued, or I guess we'll talk about prospective pardons, a new thing also with Trump but none of that would apply to any state court in New York or in any other state.

Brian: Prospective pardons or preemptive pardons for his children, his personal attorney, Rudy Giuliani, has this ever been done a pardon for any crime you might be charged with in the future?

Jami: The only place where there might be a precedent is in the case of Richard Nixon, where Gerald Ford essentially issued a preemptive or a prospective pardon when Ford resigned and left office. When, I'm sorry, President Nixon resigned and left office in disgrace, Ford, President Ford essentially protected him from any prosecution for the acts related to the Watergate Scandal.

That's the closest thing in American history to what some are speculating President Trump may do and may do for more than one person and may even try to do for himself. The pardoning one's self is entirely unprecedented. There has never been a case like that in our history.

Brian: That would wind up at the Supreme Court probably or do you think it's open-- For you as a legal editor, do you think it's open and shut one way or the other?

Jami: No, no. Not open and not shut.

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Jami: It's never happened before. It's not litigated. It's not written about, it's been speculated about by legal scholars but the constitution did not envision that and so it would have to be litigated and it might go up to the US Supreme Court, and the constitution is fairly silent about what happens after a president leaves office.

There's also this question of the silent pardon? Could a president issue some sort of get out of jail free card and walk around with it in his pocket after he's left office and then pull it out when he or one of his friends or allies or someone else gets into some sort of trouble? The constitution that language I just read you is rather unclear about what happens in that case. That would have to be litigated as well.

Yet again, we see that the founders as much as we laud them for their brilliance, I have left us some loopholes that need to be filled, and Congress could deal with it so could a constitutional amendment.

Brian: When you say silent pardons, you mean secret pardons that he wouldn't even announce before leaving office, but that would be effective?

Jami: Well, we don't know if they would be effective, but there's really nothing in the language, Brian, that prevents him from signing a pardon and putting it say in a safe at his Florida golf course, any one of them or in his pocket walking around with it. That's a bit ridiculous, but that could happen.

In Article II, Section II, that language I just read you, there's nothing that prevents him from signing a document granting a pardon and then sliding it into a safe. So that's what I'm saying. Trump can secretly issue a pardon on his last night in office and have that get out of jail free card, and as a technical matter, it is one of the constitutional things that has never been litigated.

Now Congress could pass a law saying that any pardon revealed after a president leaves office will be presumed a legitimate null and void. That's probably a good idea, or we could do a 25th amendment kind of thing and seeing the loophole in the constitution, pass an amendment to clarify what happens once a president leaves office.

Brian: He'd have to at least register that silent pardon with somebody in the government. He couldn't just keep it at Mar-a-Lago with him because how would they know he issued it before he left office?

Jami: There are greater constitutional minds than mine, but as I read it, he does not have to register it. There's nothing that requires registration of the pardon that wasn't written into the document. No, he doesn't have to tell anyone that he's written this thing and once he reveals it there would be a lot of litigation about its validity, to my view.

Brian: I saw a reporting on CNN last night that he is now not expected, and, of course, you never know what somebody does, but the anticipation now is that he's not expected to pardon himself or his children or any of the writers from January 6th. Do you have any sources?

Jami: Well, when you say you can never tell what somebody is going to do, this isn't just somebody, this is Donald Trump. We've been hearing for years, for at least two years, that Trump was considering pardoning himself because there are two, at least two major problems for him in the law. One is the election interference, which we started to hear about almost from jump going back to the Russia investigation.

There is the interference in Georgia most recently, the conversation with Georgia Secretary of State, Brad Ruffins Berger. Now, there is a very clear indication that that will be investigated in the state of Georgia under state law.

Then there's a federal problem as well there for him to consider pardoning himself. Then there's the incitement of the deadly insurrection at the Capitol for which the DOJ has softened its position, but is looking into a liability there, criminal liability under federal law.

A lot of reasons why Donald Trump might consider pardoning himself, but as you say, the recent reporting is that his advisors have suggested he not do it because he might lose his fifth amendment right against self-incrimination and he would need that in any state litigation that might be brought against him.

Brian: Are there any pardons besides the ones we just talked about potentially that you're expecting today or looking to see if they come down?

Jami: Well, multiple sources are suggesting, reporting that Trump has about 100 names on a list that he is considering. Now, that doesn't mean he'll issue 100 pardons and clemency orders, and he's been very stingy, Brian, we should say. He has trotted out a couple of high profile clemency petitions with Kim Kardashian at his side that he's granted, but he's been very stingy in the course of his presidency.

Just to give you an example, Barack Obama by comparison, granted more than 1,700 commutation requests, and that was more than every other president over the previous half-century combined. As of Christmas Eve, Donald Trump pardoned, commuted, or rescinded the convictions of just 94 people, 94.

Brian: Why did Obama tend to pardon or commute their sentences?

Jami: He tended to commute the sentences of people who'd been convicted under the very harsh Rockefeller type drug laws. The indiscriminate sentencing, three-strikes laws, laws that discriminated against people of color, when similar laws passed in the '90s treated other people, I will just say white defendants, similarly situated in a much less harsh manner.

Most often they were drug defendants, and they were more harshly sentenced. Obama looked at the laws, compared the laws and where they were unfairly applied, would grant clemency.

Donald Trump has not done that and when he has granted clemency, he's used the power to grant clemency to people convicted of crimes relating to, for example, his presidential campaign, like his former campaign chairman Paul Manafort and Roger Stone, who just last month received clemency. Meanwhile, there are thousands of people who are potentially appropriate for true clemency, sitting in federal prison.

Brian: I'm so glad you brought that up, Jami, because it's one of those things that people tend to look past that's really probably even more important than what we're looking at, which is to say, in this case, not just the pardons that he's given that many people consider outrageous, but the pardons of anonymous people who really deserve them that he hasn't given them too and those tend not to be celebrities.

Jami: Absolutely. The clemency petitions when you read them one at a time, are rather heartbreaking, especially as the defendant becomes older and infirm. Now, we do have to remember there are victims in many of these cases. Some of these cases are not victimless crimes. They're not all defendants convicted of drug offenses, sometimes there are violent crimes and so the governor or the president has to consider the victim.

As a person gets older, they are not generally a threat to society and that's the kind of thing a governor or president needs to consider. It's a balancing act when thinking about clemency, and it is about mercy, especially in cases where we thought about the ways in which the laws may have been indiscriminately applied to certain communities, Black and Brown communities in the course of our history over the arc of our history, and it wasn't that long ago, the '80s, the '70s, even the '90s as the Obama administration acknowledged.

You did ask, who is on the list for President Trump? Well, interestingly, he's looking at people again associated with his campaign. Rudy Giuliani has said he doesn't want clemency or a pardon, but he probably needs it.

Steve Bannon, the President's former Chief Strategist who is currently under indictment, and in our area, Brian, Sheldon Silver, who was convicted twice on corruption charges and sentenced to prison just last summer now he is elderly and COVID is in the prisons. That is something to be considered, but it's to be considered for all defendants, not just the wealthy, prominent and influential.

By the way, Lil Wayne, the rapper is also on the list, a colorful name, I'll mention him. He pleaded guilty last month to illegal firearm possession. He's also a big Trump supporter. He's on the list. We'll see if his clemency petition is granted.

Brian: 30 seconds left in the segment. You mentioned Sheldon Silver. I know since that news broke that he might be on the pardon's list, a lot of people around here are scratching their heads and thinking, "Wait, Sheldon Silver, Liberal Democrat, convicted of corruption after being the Speaker of the New York State Assembly, why would Trump pardon him?"

Jami: Well, Trump, we must remember wasn't always an ardent Republican. Any New Yorker will think back even say, eight years and remember that Trump's political leanings-- well, he had the vicissitudes, he put his finger in the wind and whichever way the wind blew, that's where his politics went.

That doesn't mean his heart and soul wasn't as far right as it currently is. He attended Hillary Clinton's birthday party, famously. His affiliation and association with Sheldon Silver, we'll have to read into that a little bit, but my sense is they probably go back as New Yorkers a lot further than many of us realize.

Brian: Jami Floyd, WNYC senior editor for race and justice, and legal editor. Thanks for the education on the pardons, Jami.

Jami: We'll wait and see, Brian. Never a dull moment. See you on Wednesday for Inauguration Day.

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