Callie: I'm Callie Crossley in for Tanzina Vega. Good to be with you today. Last week, President Trump pardoned or commuted dozens of people. The list included former Republican congressmen convicted of campaign fraud and other charges and numerous people convicted as part of the Mueller investigation, including Roger Stone and Paul Manafort. The president also pardoned Charles Kushner, the father of his son-in-law as well as four military contractors convicted of killing Iraqi civilians. The DOJ worked on the latter case for years and drew fierce criticism from Iraqis and US officials. The majority of the president's pardons in his term have been those of supporters and loyalists to the president and more are expected. Larry Coopers is here to talk about this process and the president's circumventing of the Department of Justice. He is former acting pardon attorney under President Trump and former deputy pardon attorney under President Obama. Larry, welcome to The Takeaway.

Larry: Thank you. Good to be here.

Callie: Here to discuss the historical roots of the pardon and how other presidents have used it is presidential historian and professor of history and public service at NYU, Tim Naftali. Tim, welcome to the show.

Tim: Thank you.

Callie: Tim, these latest rounds of pardons are being hit hard, even by some Republicans like Pat Toomey. What makes them so tough to stomach for some, and where do they compare historically with past pardons?

Tim: Well, President Trump is not the first president to issue what one might think of as a bad pardon. In 1925, the Supreme court in a case called Ex Parte Grossman about an innkeeper who violated probation defined a bad pardon. A bad pardon is the use of a pardon in such a way as to undermine our judicial system, by in a sense telling people, "If you know someone in the White House, you'll get away with it." There have been examples of past presidents misusing the pardon. Pardoning of Marc Rich by Bill Clinton, George Herbert Walker, Bush's pardoning of a group of associates involved in the Iran Contra scandal at the end of his term, John F. Kennedy pardoning a Truman Era political who had taken abroad.

But these were isolated incidents. They weren't right, but in the context of all the pardons issued by these presidents, they were outliers. In the case of Donald Trump, at least, and it's a back of the envelope calculation at least 25% so far of his pardons have been self-dealing friends, allies, or people engaged in fraud, whether securities fraud or tax cheating or campaign fraud. It's the character of the entire enterprise, which makes his approach to the pardon standout.

Callie: Larry, as I understand it, pardons go through a vetting process under the Department of Justice and then are recommended to the president. Did that happen with this most recent round of pardons from President Trump?

Larry: No, I've seen one calculation where it's over 80% of the grants of clemency from Trump have not gone through the Department of Justice. I agree with Tim. What's unique here is that President Trump, both in procedure and in substance, has been abusing the pardon power since he started. It started very early. Sheriff Arpaio was one of the first who was convicted of contempt of court yet was pardoned and it's continued to this day.

Callie: You worked in the pardon office under both Obama and Trump. What was the difference between the two administrations?

Larry: Could not be more different. Under President Obama, the protocol was followed, the applications went through the Department of Justice, the only exception were some pardons and commutations for a small group of Iranians that had to do with the political dealings with Iran at that time. Otherwise, everything went through pardon attorney's office up to the deputy attorney general and then to the White House.

Callie: Here's a big question. What if President Trump decides to pardon himself, Tim?

Tim: That would be an interesting constitutional challenge. He would be the first president to do it. He wouldn't be the first president to consider doing it. Richard Nixon and his associates, at least his chief of staff Alexander Haig, contemplated it. Their justice department or Nixon's just department actually wrote a memo. The office of legal counsel produced a memo that argued that it would not be constitutional, that the president could not pardon himself. That decision or that interpretation, let us say by the OLC, I think figured in Nixon's ultimate decision not to pardon himself. Also, the fact that the Nixon understood he had lost the Supreme court, he had just lost a huge case, USB Nixon regarding the tapes. If Donald Trump tried to pardon himself, I think it would be tested. I'm not sure that the Supreme Court would rule in his favor.

Callie: Larry, is there a way to challenge that if he decides to pardon himself?

Larry: That's the trick. If he pardons himself, the question is will they prosecute him for federal crimes after he leaves office? My take on it is that if he pardons himself, that would be considered so egregious that it would trigger a federal prosecution that might otherwise not happen, so that he'd be shooting himself in the foot by pardoning himself. He would then be prosecuted. Then the issue would come up before the court probably go to the Supreme court because it's an issue of first impression. My bet is that the Supreme court would rule no self pardons.

Callie: Tim, what do you think about the impact of pardoning military contractors convicted of killing Iraqi civilians? What will that impact be?

Tim: Well, it's a stain on all of us, but mainly it's a standard in our military. It suggests that our military condones war crimes. I think it's a slap at our military justice system and it further weakens us around the world. We at the moment are so weak around the world. We seem to be this unethical bully and hapless bully as a result of the Trump years. I think that this just-- How can we maintain the posture that we are helping other countries build democracy if we are pardoning our killers amongst them? I think this is terrible for our military, for our international prestige. It's just one more reason why we'll need a complete redo of our foreign policy posture after January 20th.

Callie: Larry, what about the pardons of President Trump's friends like the Republican Congress members, those convicted during the Mueller investigation? Doesn't pardoning them invalidate the justice system?

Larry: Yes, it does. Of course, all of these people were convicted in a federal prosecution were shown to be guilty. Sometimes, the justice system goes wrong and it's important to use the clemency power to correct it. In these cases, the grants of clemency serve none of the purposes of the pardon power, which is mercy, forgiveness, and reconciliation. In fact, they go the other way. They basically trigger more conflict because most of his grants of clemency have been for the purpose of exciting his partisan base.

Callie: Larry, Tim has suggested that President Biden has to address this, because he mentioned after January 20th. How do you think the pardons will change under President Biden?

Larry: Again, it's going to be night and day. President-elect Biden was, of course, vice president under President Obama when they did the clemency initiative, which was a recognition that the pardon power had to be used in an exceptional and bold way because of the injustices over the past 35 years of federal convictions and federal sentencing. I think there's a possibility for another clemency initiative. I'm hoping that will be the case because there are so many sentences that are too severe, that were imposed in a racially disparate way, and that need to be corrected through clemency. Usually, you want a criminal justice reform to go through Congress, but sometimes you have to use the clemency power in a more expansive way. I think this is the time to do so until we correct so many of these overly severe and racially disparate sentences.

Callie: Tim Naftali is a presidential historian and professor at NYU and Larry Coopers worked in the pardon attorney's office for both President Trump and Obama. Thank you both for being here.

Tim: Thank you.

Larry: Thank you.

[00:08:44] [END OF AUDIO]

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