Preet Bharara (50:13)
Now let's get to your questions. This question comes as a post from Lauren in the Stay Tuned substack chat. What are the state laws in California and in Texas for replacing Swalwell and Gonzalez. How soon can both be replaced? Thanks with hopes of a better vetting system and hopes that Preet has a good Mango Lussi recipe. He'll post well. Thanks Lauren. Let me talk about your question first. Special elections are actually a really interesting procedural issue. Both Representative Swalwell of California and Representative Gonzalez of Texas, as you know, recently resigned their seats following allegations of serious sexual misconduct. So that leaves each state with an empty House seat and the question of how to fill it. So first, as always, let's begin with the Constitution. Unlike a Senate seat, a House seat cannot be filled by a governor's temporary appointment. That's in the Constitution itself, which says when a vacancy occurs in the House of Representatives, the state's executive authority must issue what's called a writ of election, essentially a formal written order directing that a special election be held. So both California and Texas are supposed to fill these vacancies through special elections. So that's the same, but the timing and structure of those elections differ by state. California law requires the governor to call a special election within a specific time frame, generally on a Tuesday between 126 and 140 days after issuing the proclamation that calls the election first, there is a special primary election where all candidates, regardless of party, appear on one single ballot, and if one candidate receives more than 50% of the vote, that's the person. If no candidate wins a majority, on the other hand, in California, the top two vote getters advance to a special general election. For California's part, Governor Newsom has already scheduled a special primary for June and the special general for August. Now, the system in Texas is similar, but with a few notable differences. Texas gives the governor broad discretion over timing. Under that state's law, the governor must order a special election by proclamation and do so as soon as practicable after the vacancy occurs. But because the statute does not set a firm deadline, the governor has considerable latitude in determining what qualifies as practicable, so mischief is possible. Texas election format is also similar to California's, though the terminology differs. Texas holds a single all candidate special election like California, and a candidate has to receive a majority of the vote to win outright. If no one earns a majority, the top two vote getters advance to a runoff election, so pretty much the same as California. As of this recording, Governor Abbott of Texas has yet to schedule the special election. Legally speaking, a governor can't simply refuse to hold a special election. But in practice, if a governor delays long enough the calendar can effectively run out, and the seat may remain vacant until the next regular general election, and any legal challenges are unlikely to be resolved quickly enough to alter that timeline. That may be the route Governor Abbott chooses to take, and I don't know enough about Texas politics to speculate about why that might be. In any event, we'll be watching both states closely. As for your question about a Mangalussi recipe, do you need a recipe? Just do what I do. Find a nice spot in your town or city that serves up a delicious cold mango lassi. This question comes as a post from Jessica, also in the Stay tuned Substack chat. I'm curious, what are the avenues that are available to Congress for reforming the presidential pardon process? Jessica, this is a great question. It comes up a lot, but in particular it comes up when Donald Trump is the president. As you know, the Constitution places very few limits on the president's pardon authority. It may be the president's broadest, most unfettered power altogether in the Constitution or otherwise. As a reminder, Article 2 of the Constitution says the president shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. That's it. That's the whole thing. There's no procedural roadmap, no transparency requirement, and no limitations beyond the impeachment exception and the fact that the power applies only to federal offenses. So a lot of discretion which people can argue has been used well or misused and abused, depending on your views of a particular case. The most direct way to reform the pardon power, or at least to change it, would be through a constitutional amendment that would allow Congress and the states to impose clear structural limits. But a constitutional amendment is really, really, really difficult. So don't hold your breath. But instead of an amendment, Congress still has some tools. One important theory, articulated by frequent podcast guests here, Bob Bauer and Jack Goldsmith in a Lawfare article, is that while the pardon power may be absolute for the person receiving the pardon, it is not necessarily immune from criminal scrutiny when it comes to the person granting it. In other words, in certain circumstances, the act of granting a pardon could itself constitute a criminal offense. That's the view of those gentlemen. And it's my view also. For example, if a president issued a pardon in exchange for a campaign contribution, or exchange for an agreement not to testify, or something else, that conduct might implicate existing federal bribery or obstruction statutes. It's a quid pro quo. And in fact, I'm old enough to remember about a quarter century ago, my boss at the time, Mary Jo White, then the U.S. attorney in the Southern District of New York, did investigate sitting president and people around him for the questionable and dubious pardon Clinton gave to Mark Rich. In any event, some scholars argue, those laws already apply. Others say Congress should clarify the matter. Congress could pass a statute explicitly stating that granting a pardon as part of a corrupt quid pro quo constitutes bribery. According to Bauer and Goldsmith, there is a substantial argument that such a law would survive constitutional scrutiny because it would regulate the quid pro quo, not eliminate the pardon itself. But it would certainly be tested in court. Another proposal appeared some years ago in the Abuse of the Pardon Prevention act, introduced by our friend Representative Adam Schiff. That bill would have required disclosure to Congress when a pardon involved certain sensitive circumstances, such as cases connected to the President or people connected to the president, or congressional investigations. The idea was to impose transparency by requiring the Justice Department and the White House to provide relevant materials to Congress and explain the reason for the pardon. Now, aside from legislation, Congress also has oversight authority. It can hold hearings, issue subpoenas, and investigate how the pardon process is being used within the executive branch. And finally, as the Framers envisioned, impeachment remains the ultimate constitutional check on pardon abuses. This question comes as a post from Tom in the Stay Tuned substack chat. Does reforming the Supreme Court by increasing the number of Justices require a constitutional amendment? That's a great follow on question. Unlike the pardon power, it does not. The Constitution itself does not specify how many Justices sit on the Supreme Court. And by the way, you may be asking this question because there's a lot of speculation swirling about whether Justice Alito will retire this summer or not. As always, let's go to the Constitution. Article 3, Section 1 states, the Judicial power of the United States shall be vested in one Supreme Court, but it does not specify the size of that court. Article two, Section two gives the President the power to appoint judges of the Supreme Court with the advice and consent of the Senate, but once again doesn't say how many. Historically, the number of Justices has been determined by statute. In fact, the Judiciary act of 1789, one of the earliest laws passed after the Constitution was ratified, set the Court at six justices, an even number. It allowed President George Washington to appoint a Chief justice and five Associate Justices. Since then, Congress has legislatively changed the size of the Court several times. The number has ranged from six to 10 justices. At different points in the 19th century, Congress both increased and decreased the court size. But in 1869, Congress set the number at nine justices. Where it has remained ever since. People may remember from history that Franklin Delano Roosevelt tried to increase the size of the court. In 1937, he proposed the famous Court packing plan, which would have allowed him to appoint up to six additional Justices without a constitutional amendment. Congress, of course, as you also know from history, rejected that proposal, and ever since, the Court has remained at nine members. So the bottom line is this, every time Congress has changed the size of the Court, it has done so through ordinary legislation. And it could do so again today in the same way. But once again, don't hold your breath. Well, that's it for this episode of Stay Tuned. Thanks again to my guest Rebecca Weiner. If you like what we do, rate and review, view the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. You can reach me on Twitter or blueskyeetbarara with the hashtag AskPreet. You can also call and leave me a message at 833-997-7338, that's 83399, Preet. Or you can send an email to letterscafe.com stay tuned is now on substack. Head to staytuned.substack.com to watch live streams, get updates about new podcast episodes and more. That's staytuned.substack.com Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The Executive Producer is Tamara Sepper. The Deputy Editor is Celine Rohr. The Supervising Producer is Jay Kaplan. The lead Editorial Producer is Jennifer Indig. The Associate Producer is Claudia Hernandez. The Audio and Video producer is Nat Weiner. The Senior Audio Producer is Matthew Billy and the Marketing Manager is Leanna Greenway. Our music is by Andrew Dost. Special thanks to Tory Paquette and Adam Harris. I'm your host Preet Bharar. As always, Stay tuned.