← Bulwark Takes
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- [00:00]
A
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- [01:20]
B
Yeah, thanks for having me, Sam.
- [01:21]
A
So last time we talked, it was sort of at the beginning ish stage of the Trump administration. You had been relieved of your duties because you had declined to go ahead with a was it a commutation or a pardon of Mel Gibson for a gun offense? I want to be technically correct. Which one was it?
- [01:41]
B
He was trying to get his gun rights restored and I was recommending to get his guns back. I didn't do that and I was fired.
- [01:49]
A
So that happened. And we were talking a lot about what the future held in store for Trump with this pardon power. He had already by that point pardoned, you know, 1,500 riders from January 6th and so on and so forth. But it seemed sort of ominous and open as to how far he would take it. Now that we're sitting here talking again, I want to hear your assessment about how far he has taken it.
- [02:14]
B
Donald Trump has used the pardon power in ways that are unprecedented in our history and that have been incredibly destructive to the rule of law and to public confidence in the fairness and integrity of our justice system and the pardon power. He has done a number of things that are just blatantly corrupt self dealing with the pardon power. He's done a number of things that are dangerous with the pardon power, including granting pardons to people who have not been vetted. And now we've seen most recently that he is using the pardon to really undermine our democracy by pardoning folks who have tried to overthrow the protections for free elections in our country.
- [02:54]
A
So that's this morning's news, which is that overnight, because we could go through these, and we will. Overnight, there was a pardon for, I believe, 77 or so people. But the most prominent ones were John Eastman, Rudy Giuliani, Jenna Ellis, those people who were involved in the trenches in Trump's attempt to stop the certification of Joe Biden's victory and install himself back in power in 2020. They hadn't actually been tried or anything. They had not been convicted. This was sort of ceremonial. But your argument is that this actually is quite damaging still.
- [03:26]
B
Yeah, I don't know that this is purely ceremonial, Sam. I mean, what's so weird about this pardon is that it purports to pardon people who are being investigated or have been investigated or charged with crimes under state law. The one limit that the Constitution clearly places on the pardon power is that it's limited to offenses against the United States, which means federal crime. No president has ever tried to pardon state law crimes before, but this pardon seems to apply only to state law crimes. So it looks like the president is really trying to push the boundaries of the pardon power and test the limits of it to see if he can get away with pardoning allies who were convicted or who have been investigated for violating state laws related to election integrity. So it's very unusual in that respect. And I'm not sure that it was intended to be purely symbolic. It seems like it may be intended to really push the limits of the pardon power.
- [04:18]
A
Power, Yeah. I read Ed Martin. So Ed Martin is now, I guess.
- [04:22]
B
Sits in my old chair, your successor.
- [04:26]
A
We're not going to get into the how that feels, but he is. He is Trump's henchman at the Department of Justice. He has tweeted, outwardly no MAGA left behind. He in fact, attached announcements of these pardons to that tweet. He put out a. A memo or of some sort. It was riddled with typos and problems. But among them was that the reason that this was a justifiable pardon for the state crimes, that because the act they were taken was a federal nature, which was about a federal election, therefore, they shouldn't. Whatever. We don't need to get into it. The issue here seems to be they're laying the predicate for Tina Peters, who is an official, who is in Colorado, who was tried by state crimes. And the, you know, there's a high amount of pressure on the Justice Department to try to figure out a way to get her out of jail. And one of the ways is you can. And they've been talking about, it's like, make her a federal witness, a witness in a federal case, therefore, she's under federal jurisdiction, and all these crazy theories. But this Ed Martin memo seems to be about establishing some sort of predicate. That's how I read it. Is that how you read it?
- [05:32]
B
Yeah, I agree with that. It seems like he's testing the waters to see if there's a path forward for a presidential pardon of Tina Peters, who was convicted of crimes under the laws of the state of Colorado. So President Trump does not have any constitutional authority to grant her a pardon, yet he and Ed Martin seem to be plowing forward to see whether they can make that happen anyway. It just is generally consistent with the disregard that this president has for the limitations of his legal authorities. And he seems to be egged on by Ed Martin, who is not a serious lawyer. He is not somebody who really even seems to have a basic understanding of how the Constitution works, how the pardon power works, how federal law works, how the Justice Department works. Yet he has been entrusted with extraordinary powers, both as the pardon attorney, which gives him a hand on the lever of mercy for MAGA loyalists, and he's the weaponization director, which gives him the other hand on the levers of vengeance against Trump's enemies. So he's playing a very dangerous dual role inside the Justice Department, and he seems to be egging the president on to test the boundaries of his presidential authorities in a way that is really destructive to the rule of law.
- [06:45]
A
Do you imagine that some sort of organization outside of the administration will try to challenge legally this latest batch of pardons on the grounds that you are addressing here, and I guess relatedly, how can they. What kind of standing do you have to bring a lawsuit of that nature?
- [07:04]
B
Well, I think what will happen is that in some of these individual cases, the individuals who are encompassed within the purported pardon will try to use the fact of the pardon to get out from under legal consequences. So they'll try to get their cases dismissed or something like that, and then courts presiding over those cases will have to decide whether the pardon has the legal effect of absolving them of their state law offenses. I can't imagine that any court could really credibly find that the pardon does have that Legal effect. But it appears that that is now teed up and that is likely to happen in some of these individual cases. One of the things that's not about this pardon is that it's not necessarily limited to the 77 people who are listed in it. It claims that it pardons anybody who has committed any offense in furtherance of overthrowing the results of the 2020 election. So there may be additional people coming out of the woodwork who try to test the application of.
- [08:02]
A
Could Tina Peters try to test it?
- [08:04]
B
Yeah, yeah. So Tina Peters potentially, you know, one person who could potentially fall under this pardon is Ed Martin. He was the organizer of the Stop the Steal movement. And to the extent there were crimes committed, he may be implicated in them. Well, who knows what the limits of this are and who may try to claim that they benefit from it? It is very extraordinarily broadly warded. So we probably will be seeing the fallout of this for a long time. And another interesting feature of the pardon is that it states that the pardon attorney, so that's Ed Martin, is in charge of issuing certificates to the folks who are actually covered by this pardon. So that seems to give Martin a good deal of discretion to decide who he believes falls within the boundaries of pardon, which is just an extraordinary position for him to be in, given his background.
- [08:53]
A
Totally nuts. He also noted, it was very much noted, that Donald Trump was not giving himself a pardon, which is irrelevant because the Supreme Court has ruled that Trump is totally immune from this stuff. So it's not even that big. It's like, oh, how magnanimous. But it's not really a big deal.
- [09:07]
B
Yeah, yeah. It seems like he's pushing a lot of, a lot of boundaries with his pardon. So why test that question of whether the President can pardon himself? He doesn't need to.
- [09:15]
A
No need to. He's immune. All right, so let's go through a few of the recent ones and I will say, you know, some of these, I, I'm just, I had to, like, I was gobsmacked at a few of them and then it kind of. You sort of get used to how crazy these are. I'm just going to walk through it and you can give me your thoughts after I'm done. But Trump has pardoned a full and unconditional pardon to a Wyoming diesel mechanic. Troy Lake didn't even know about this case. Convicted last year for tampering with vehicle emission systems. He had been serving seven months for a one year federal prison sentence for modifying, removing emission controls on diesel engines. Okay. Obviously, Binance CEO Changpeng Zhao was pardoned. That one was a little crazy. Let's stop for a second on that one. Because Trump was asked about it on 60 Minutes and now famously was like, never. Never didn't know about the guy.
- [10:05]
B
Yeah. Never heard.
- [10:06]
A
Which I thought was insane, an insane admission. But did that blow you away or is that, you know, are you not blown away at this point?
- [10:12]
B
Absolutely stunning. I mean, the, the self dealing aspect of this is really striking. This is somebody who facilitated a $2 billion investment into Trump's family cr. Croc company. And as a result of that, he seems to have gotten a presidential pardon, despite the fact that he doesn't meet any of the standards for granting a pardon. So that was truly stunning. And then even more stunning to hear the President claim on national television that he doesn't know who this is. It was just a very bizarre moment. You know, he prefaced his answer by saying, are you ready for this? Then he said so, like he was sort of preparing what would be a good answer when I'm asked about this. And what he came up with is, oh, I want. I have no idea.
- [10:50]
A
My interpretation was that Trump wanted to seem like he knew nothing about the quid pro quo. Don't even ask me about it. I had no idea. And then the, you know, obviously in the process of trying to get absolved for that, he looks like he's totally out to lunch and handing out pardons randomly to people.
- [11:06]
B
Yes.
- [11:06]
A
I want to keep going through the list. George Santos got a pardon. I'm sorry, a commuted sentence. That was, that was an interesting one. Local sheriff Scott Jenkins, who a jury had convinced, convicted of selling auxiliary deputy badges to businessmen for $75,000 in cash and campaign contributions.
- [11:24]
B
Yeah.
- [11:24]
A
There's more. There's Tennessee lawmakers who were pardoned who had run some like, you know, terribly, you know, ridiculous campaign defrauding scheme. There was, you know, it just goes on and on and on. And I'm wondering, is there something that, like, is a through line here or is it just simply these guys are on my team or they're giving me money and therefore, whatever they want, I'll give them a pardon?
- [11:49]
B
Yeah. Trump pardons a lot of people in whom he sees something of himself, I think. So the sheriff that you mentioned, Jenkins, yeah. He was using his official office in a way that was completely corrupt. He was selling off sheriff's badges for profit. And that's not dissimilar to what Donald Trump is doing with the presidency. He is selling special treatment to people who can afford it. And that's happening in the pardon space. He has granted pardons to people who have paid huge amounts of money for access to him. He pardoned a guy named Paul Walsack, whose mother paid a million dollars to have dinner at Mar a Lago just a few days before he got a pardon. He pardoned Trevor Milton, a one time billionaire who donated a couple million dollars to Trump's campaign. He really has created a pay for play system and he's pardoning other people who commit the same type of political corruption, including that sheriff. He's also pardoning people who have really terrible personal histories that are not that different from Donald Trump' personal history. The Tennessee case you mentioned, he pardoned the former Republican House speaker of Tennessee, Glenn Cassada, plus his one time chief of staff, a guy named Cade Cawthran. Cawthran has a horrible history of mistreatment of women. He was in a situation where a bunch of his text messages leaked and he, it turns out, had been hitting on interns, propositioning them for sex, sending messages about using drugs in his office, in addition to the sexual misconduct type of, of text messages. He's really somebody who's just, who's just character is just pretty disgusting. And most presidents would look at somebody with that type of background and say, that's not somebody that I'm going to grant a pardon to. I don't want to endorse that behavior. But in Donald Trump's world, you know, you can be a sexual harasser, or you can be a racist or a cheater or a liar and unrepentant about it, and you can still get the benefit of a presidential pardon, which is pretty shocking.
- [13:51]
A
Well, let me ask you about that. I guess we can close this. But it's like it used to be that a controversial pardon would be, you know, deeply problematic for your presidency. Right. I mean, that's why they always pack the controversial pardons towards the end of your presidency. Right. You know, Mark Rich, even Hunter Biden, the first Trump term, all of the stuff was really packed towards the end of the presidency and now it's coming on a weekly basis. And this is a classic sort of Trump attribute, right? Where you are inundated with an avalanche of controversies and you begin to get almost calloused to it. Where you start, you stop thinking, oh my God, what the hell is this so controversial? And you begin to think of it as sort of the standard operating procedure. And I worry about that, I worry about that a lot, that we're just going to consider this now normal business in a presidency. And I'm assuming you worry about that, too.
- [14:44]
B
I do worry about that. I think that we need more accountability. We need people in power to demand accountability for these corrupt pardons. It's very surprising to me. I mean, maybe this sounds naive, but it's surprising to me that the Republicans in Congress are letting this all go because it is so just transparently corrupt. Yet nobody's asking for any accountability on either side about these pardons, which really is something that you would think that we could get to some sort of bipartisan agreement. Agreement on the fact that pardoning people who are paying you for the privilege is not something we want our president to be able to do regardless of party. But what Donald Trump is doing here, in addition to normalizing this, he's actually amassing power by putting it all out in the open. The fact that he can pardon whomever he wants, and by doing it early, he's putting himself in a position where he now has pretty much everybody who's committed a federal crime around the country scrambling to figure out how they can get a presidential pardon. And that means making donations, hiring lawyers and lobbyists in Trump's inner circle. It means making offers of assistance to the president for people who are in the position to be able to do that in a way that allows the president to amass a tremendous amount of power. We are seeing some high profile examples of people like Diddy, for example, and Glenn Maxwell, who are engaged in all sorts of negotiations with Trump's Justice Department and others in his inner circle to try to negotiate pardons. And because it's all out there in the open and people know that pardons are effectively on the market, they're doing what they can to position themselves to get one. And that's really helped Trump to amass a lot of power in a very corrupt and dangerous way.
- [16:27]
A
You know, you're totally right. It is a little bit surprising. And I don't think it's naive to say it, but, like, you know, George Santos screwed over a lot of New York voters and donors and people who give to Republican causes. And you heard kind of a whimper from some of his ex colleagues when the pardoning came or the commutation came. Tennessee lawmakers, same thing. It was. It was Tennessee Republicans who blew the whistle on them, as I understand it. And yet you don't see Marsha Blackburn or anyone else in Tennessee delegation being like, how dare you? Because they're all a little bit scared of Trump. And yes, it is obviously weaponized I asked you last time about this idea that he could use the possibility of a pardon to get someone to commit a corrupt act. Right. Like, yeah, we use Watergate as an example in our last conversation where I said, is it possible that he says to someone, hey, go burglarize the DNC and don't worry about getting called, not because I'm president and I will pardon you. And we sort of danced around it. But I think that's come into sharper focus now.
- [17:21]
B
Yeah, I think that's exactly right. And we saw that very clearly with last night's pardons, the ones that were announced related to the election interference. In part, it's about messaging. It's saying, to those who commit crimes in the name of Donald Trump, I've got your back. If you commit a crime in the name of Donald Trump, then Trump has your back and you need not worry about the legal consequences of that crime. That certainly emboldens people to do more of that. It emboldens those who are thinking about taking risks with the law on behalf of Donald Trump to go ahead and do that, because they now reasonably believe that Trump and Ed Martin will help them out of any jams that they may get into that is very dangerous and very destructive for the rule of law in our country.
- [18:03]
A
We got to get some pardon reform in the future. But Liz, thank you so much. I appreciate it. Everyone should check out all her stuff. I'm not just going to send you to the the her substack. Get the YouTube, get the Instagram, the full flavor. Lawyer Oyer, the lawyer. Liz.
- [18:19]
B
Yes, thank you.
- [18:21]
A
Sorry. One of these. I got them almost right. Liz or. Thank you so much. Really appreciate it.
- [18:25]
B
Thanks, Sam.