The Pardon Power

After a quick review of the Georgia Court of Appeals decision disqualifying Fani Willis from Donald Trump’s criminal case based on an appearance of impropriety, MSNBC legal analysts Andrew Weissmann and Mary McCord are joined by NYU Law professor and Dean Emeritus, Trevor Morrison. The discussion revolves around the limits and scope of the presidential pardon power, the legal precedence of a blanket pardon for crimes not yet adjudicated, and whether a president can in fact, pardon himself. 

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Note: This is a rough transcript. Please excuse any typos.

Andrew Weissmann: Hi, and welcome back to Prosecuting Donald Trump. It is Monday morning, December 23rd, and we’re going to have this show for you tomorrow on Christmas Eve morning, but we’re taping it a day early. Anyway, guess who I am? I’m Andrew Weissmann, and I’m here with my co-host, the great Mary McCord. Hi, Mary.

Mary McCord: Good morning to the great Andrew Weissmann, and happy holidays.

Andrew Weissmann: And happy holidays to you.

Mary McCord: We’re getting ready to feel in the holiday spirit as soon as we update everybody on not only the most recent news, but we have an incredible guest today. Our listeners will know him, the former dean of NYU Law School, law professor there, Trevor Morrison, who will have a more fulsome introduction later, and he is going to help us analyze and discuss the pardon power, as we promised on an episode a couple weeks ago.

But before that, very quickly, Andrew, let’s update folks on what happened in Georgia last week. Andrew Weissmann: Yeah, so people remember that in the Georgia criminal case in state court, so this is one that’s not pardonable because we’re about to talk about pardons.

Mary McCord: That’s right.

Andrew Weissmann: This is a state court criminal case where the issue was whether Fani Willis should be disqualified because of the nature of her relationship and the financial relationship with one of the prosecutors who was working on the case who she had brought in.

And people remember that the trial judge had said that there was nothing in fact that resulted in any sort of impropriety in the sense that she wasn’t pulling her punches or doing anything differently because of that. And given that the prosecutor she brought in had resigned, which the judge said essentially was an option to sort of cure any appearance, she could stay on the case. And that was the trial judge’s decision that there was no sort of reason, either an actuality or an appearance, to remove Fani Willis, which would obviously have really slowed down the case.

And that decision by the trial judge went up on appeal to the first level of review in Georgia. So there still could be another appeal following this. But the Georgia Appellate Court, the Court of Appeals, issued its decision. And Mary, what did they say?

Mary McCord: Yeah, well, basically it was a split decision. The majority, which were two of the judges, said, “We’re not going to question the factual findings by the trial court,” which, as you indicated, actually he said, “There’s an appearance of impropriety, but no actual conflict.” Right? And I think that’s what you were getting at when you were saying Fani Willis didn’t, you know, there was no material benefit, even if sometimes Nathan Wade paid for their trips and their dinners, and sometimes she paid for their trips and their dinners. There was no, like, actual conflict where she was keeping him on the case just so he could pay for trips to Aruba and dinners out. I mean, they were in a relationship, and it was not an actual conflict.

But the trial court had found there was an appearance. In fact, he had an unfortunate term about the “odor of mendacity,” I think is what he said, which was an appearance of impropriety. But he had said that does not justify disqualifying her. Gave the option of Nathan Wade getting off the case or Fani Willis and her team getting off the case. As you said, that’s what went up. So the appellate court did not review that factual finding about this appearance of impropriety, but did review this remedy.

And what the majority said is, even where there is no actual conflict in this case, because she’s a public servant as the district attorney and because of the public interest in this, the trial court erred by creating that option. And in fact, Fani Willis and her office must be disqualified from this case.

Now, that’s pretty controversial. This decision drew a vocal dissent. I say vocal, it’s in writing, but a 10 or 12-page dissent. You can hear it when you read it.

Andrew Weissmann: Yes, yes exactly.

Mary McCord: Which has said, this is completely against all law in Georgia. The law in Georgia has been clear, and the dissent cites numerous decisions that says, when there is no actual conflict, disqualification is not the remedy. So here we have a total split, although obviously two to one. So the standing opinion is that she and her entire team must be disqualified. And as you said, Andrew, this is something where Fani Willis can seek review in the Georgia Supreme Court. She’s still got time to do that, because this decision just came out last week. And we’ll see if she does that.

But in the meantime, that would mean if she does not appeal it, or if this decision stands, that would mean that this case gets referred to this prosecuting authority that can then appoint a different prosecutor, and they can take a whole lot of time to do it.

Andrew Weissmann: And that new prosecutor doesn’t have to make the same decisions. And could decide not to go forward. And just to put a fine point on the legal issue here, one of the key ones is this idea of actual conflict versus an appearance. And the idea that you would force the recusal based on an appearance of impropriety when there’s no actual conflict, meaning that there’s no effect on the defendants whatsoever. And everyone has to agree to that. There’s no effect. That’s been found by the trial court, and there was no challenge to that. So you end up with this decision sort of breaking new law according to the dissent. That appearance alone would be a ground for it.

If the dissent is right, this certainly smacks of sort of the thing that we’re about to talk about, which is politicization of the legal system. But this is definitely a “to be continued” because I would be surprised if Fani Willis doesn’t seek an appeal, because I don’t see any downside. Do you agree with that?

Mary McCord: I agree.

Andrew Weissmann: So Mary, this maybe is a great time to switch to our really terrific guest. It’s somebody who is known to our listeners, Trevor Morrison. And why don’t we take a short break and come back and bring Trevor in?

Mary McCord: That sounds great.

(BREAK)

Andrew Weissmann: Okay, welcome back. We have a very special guest. He is a friend of the pod, who our loyal listeners will recall from the presidential immunity decision. He is Trevor Morrison. He is a law professor at NYU Law School. He is the Dean Emeritus for 10 years. He served as associate counsel to President Barack Obama and was also in the Office of Legal Counsel. And that is just some of his resume.

So we are so glad to have you back, Trevor. And thank you for coming on the pod.

Trevor Morrison: Thanks for having me back. It’s good to be here.

Mary McCord: So a few weeks ago, we promised our listeners that we would bring a special guest and an expert to help us talk about the pardon power. And there’s just really so much to talk about when it comes to the pardon power.

Trevor Morrison: And you couldn’t find one of those experts, so I’m coming instead. Is that the deal?

Andrew Weissmann: Exactly.

Mary McCord: You are that expert. So the reason it came up a few podcasts ago is we were talking about the fact that Trump’s attorneys agreed with Jack Smith in the motion to dismiss the January 6th prosecution, the federal prosecution, without prejudice. And we were a little bit perplexed at why he would have just agreed to a dismissal without prejudice as opposed to filing his own motion to dismiss with prejudice.

Because, of course, as our listeners know, without prejudice does leave open the door that the case could be rebrought after Donald Trump is no longer president. And one of the things I posited at the very end of that podcast was, well, maybe he’s not worried about that because maybe he thinks he’ll just pardon himself, which raises the question that a lot of us talked about at the end of his first administration when there was discussion and a lot of commentators writing about whether a president could pardon himself or herself, but it’s only been him.

So given your background at OLC and just your background more generally, we know, of course, that in 1974, in a completely non-binding on the courts, but an OLC opinion nonetheless, a very short opinion, the Office of Legal Counsel opined, just in kind of one sentence, “Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative, the question being, whether a president can pardon himself.”

So I’d like to start there, but we can, of course, start with the language of the pardon power itself, which is in Article II, Section 2, and it has really only one limitation, I guess, right? “He,” meaning the president, “shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment.” What does all that mean, Trevor?

Trevor Morrison: It’s a great question. So this question of self-pardon is not really one that we have very many useful materials to go on, frankly. There’s no real evidence that the founders contemplated this as a way that the president might have used his power of pardon or reprieve. We use different language here. We sometimes speak of commutations, as happened just this morning with President Biden’s commuting of almost all of the federal death penalty sentences.

Andrew Weissmann: And Trevor, could you just explain what the difference is between a pardon and a commutation?

Trevor Morrison: Sure. I mean, generically, commutation is a reduction in sentence, and pardon is pardoning someone for an underlying offense. And so the commutations this morning did not remove any of the convictions that were imposed on any of the people on federal death row, but it commuted their sentence to a lesser sentence.

You could commute a sentence of a particular period of years to a shorter period of years. You could commute someone’s sentence so that they would be immediately released, or not immediately released, but just have a shorter period of incarceration until they were released. You could commute a sentence from a capital sentence to a non-capital sentence.

A pardon, we typically think of, and you can subdivide here between pardon and amnesty. That language is used somewhat differently, but that tends to refer to removing the responsibility for the underlying criminal act. An amnesty is typically thought of as being provided to someone who has not yet been charged and prosecuted for the crime in question, but they’re granted amnesty so that rendering them unprosecutable for that offense. A pardon, we typically think of as being granted to someone who has been charged and indeed convicted for that offense and then pardoned for it. But that language of amnesty versus pardon isn’t present in the constitutional text as a distinction, but it’s a kind of rough usage that’s common.

Andrew Weissmann: So under that, the most famous pardon of a president was of course Richard Nixon. And was that one where, I mean, technically, you would refer that to it as an amnesty given your definition, because he of course had not been charged.

Trevor Morrison: I think it’s a mistake to place too much weight on these distinctions because it’s not clear that the frameworks we’re meeting to exclude, say grants of amnesty versus pardons. But right, using that formulation, Ford’s pardon of Nixon would technically be a grant of amnesty because Nixon had not been indicted, was not facing charges at that point. But it was for identifiable conduct. And there’s a separate question about whether amnesty could be granted to someone in a more blanket or open-ended way, say for any charges that might be brought against this person covering this period of time, which is what President Biden did for his son Hunter and granting him a form of both pardon and amnesty, using the terms the way I’ve just been using them.

Of course, none of this though, bears on whether a president could pardon or grant amnesty to himself. For that, I think the best we can do is to try and dig into a little bit of like what’s understood to be happening when a pardon is extended by an authority with the power to extend it, be that the king originally, or a governor within the state court system, or a parole or pardon board, or the president for federal offenses.

To me, an argument can be made that presidents can’t pardon themselves because in order to be effective, a pardon needs to be accepted by the person to whom it’s being extended. Just issuing a pardon is not yet legally affected until it’s accepted by the recipient. And the requirement of acceptance by the recipient seems to me to entail an idea that you don’t know whether it’s been accepted just because you know it’s been extended. But if a president is pardoning himself, it’s sort of inconceivable. It is, I think, logically inconceivable to imagine they’re not receiving or accepting the pardon that they themselves have issued.

And so if that is meant to be a meaningfully separate step from the extending of the pardon, then it seems like we’re talking about a kind of communicative act between at least two parties, the extender of the pardon and the recipient of it.

That stands to reason to me, but it would be an overclaim to say that we have knocked down evidence from the framing period or really any other period that proves that self-pardons are beyond the president’s power.

Mary, you mentioned that OLC opinion with this one just passing reference, really, and I haven’t gone back to look at the opinion this morning, but I don’t think there’s any authority cited at that point. It just sort of stands to reason for OLC, what I say.

Mary McCord: That’s right. They call it a fundamental rule, but then cite nothing for that fundamental rule.

I wonder though, when you think of the impeachment clause that we talked so much about when Donald Trump argued that he could not be criminally prosecuted when the Senate had not convicted him during his impeachment proceedings, do you think that there’s anything about the impeachment clause that explicitly allows for prosecution post-impeachment that helps to answer this question about a self-pardon?

Trevor Morrison: Well, I think, as we’ve discussed, I think previously on the pod, and I think the two of you have as well, and as the court explained in Trump versus United States, Trump’s idea that a president is not prosecutable unless and until they have been impeached is really a backwards reading of the impeachment clause. So the contemplation of prosecutability after impeachment, I think, does seem most naturally to go along with an idea that the president lacks the power unilaterally to take that off the table for himself if he’s subject to impeachment, but only in a way that I think is sort of like the natural way to read it, because, you know, somewhat other authorities who are impeachable and then prosecutable don’t have the same level of underlying immunity that the president has, and so the question is just how should we be understanding the presidency different from other offices?

For me, it just comes down to the idea that doing this to yourself is inconsistent with the idea of extending a form of grace that is optional for the recipient, whether to take it or not. And the notion of that optionality for a president who’s the recipient of his own act of grace just seems sort of incoherent to me.

Mary McCord: And those other individuals would be people like judges or even cabinet members who can be impeached, and I guess there’s really no question that they could be pardoned by a president.

Trevor Morrison: Well, it says except in cases of impeachment, right?

Mary McCord: Well, not pardoned for the impeachment, I guess pardoned for criminal acts, I guess is what I meant. Yes, yes, sorry.

Trevor Morrison: Right, so I think he could not, through the pardon power, take the impeachment off the table but you’re exactly right, there’s an envisioning of the domain of the criminal law and the domain of impeachment being sufficiently separate. His pardon power is confined to offenses against the United States as charged within the federal criminal legal system. So I think that’s right, but I just don’t know that that extends through to the president.

Mary McCord: To the president, right, for all the reasons you indicated, right.

Trevor Morrison: Exactly, yeah.

Andrew Weissmann: So I was wondering, do you have any sense of where the current Supreme Court makeup, and that current makeup may change as we, in the future, but any sense of where you think the current court would be on this issue? I mean, there’s so little to go on.

Trevor Morrison: There’s very, very little to go on. It’s interesting, I think there are some who are inclined to think, oh, well, the pardon power belongs exclusively to the president and so it’s just a political question. You can’t interfere, Congress can’t condition the president’s use of the pardon power. That’s true if you were going to come up with a list before or after the Supreme Court’s opinion of Trump versus United States of powers that exclusively belong to the president, surely the pardon power would be at or near the top of the list.

Mary McCord: And the special counsel conceded that.

Trevor Morrison: Indeed, indeed. But I’m not sure that the Supreme Court would be able to kind of get away with treating it as truly non-justiciable, right? So if you imagine that a president pardons himself before leaving office, let’s say Trump, before leaving office in January 2029, pardons himself for the January 6th offenses, but the Justice Department under the administration of whoever comes next adheres to OLC’s position, maybe through a more thoroughly reasoned opinion, that the president just can’t do that and so pursues charges, it’s not really clear what it would mean to treat this issue as a political question that’s not justiciable by the courts, right?

So now we have, let’s say, Justice Department obtains an indictment and is pursuing a prosecution, it’s going to have to contend with the immunity decision that the Supreme Court issued, but on the front end, the president, the former president’s going to come in and say, “I have pardoned myself.”

Now the typical move by the courts when they treat something as a non-justiciable political question, which is to say it’s a legal issue that just can’t be answered by the courts, is they dismiss the proceeding on grounds that it’s a non-justiciable political question, go solve this somewhere else. But when the courts are being invoked to pursue the criminal prosecution, I think a dismissal on political question grounds is really a matter of giving effect to the pardon. And so I think the court’s going to have to answer that question in this hypothetical scenario. I don’t see that treating this as a non-justiciable political question, so what, they would dismiss the part of the case where Trump tries to get the indictment dismissed on grounds of pardon? The court’s going to say, “We’re not going to handle “the motion to dismiss.” Well, if they don’t handle the motion to dismiss, the case continues forward. If they say the whole thing’s a political question, therefore we dismiss the indictment, well, then they’ve adjudicated it that way on the merits.

Mary McCord: Then they’ve ruled on it. They have ruled on it.

Trevor Morrison: Exactly. So there are odd interactions between the idea of there being legal issues beyond the power of the courts to address, which is clearly right in some domains. And when the government itself is wanting to invoke the courts to pursue a criminal process, I think it’s much trickier there. All of which is to say, I don’t know that this court could get away with claiming that, “Well, this is just not for us to decide.” I think they might have to decide.

At that point, I have no evidence to rely on, only hope that even this court would say that a self-pardon is beyond what the president can do. But you can judge for yourself how naive that hope is.

Andrew Weissmann: So there is a wonderful decision from the former chief judge of the Israeli Supreme Court wrestling with the question under Israeli law of whether a pardon should be available before somebody has actually been indicted and convicted. And obviously they looked to the Ford amnesty. I’ve learned something from you, Trevor, as always. And really talked about that there’s a utility to have the pardon come after there’s been a determination by the community as to whether there is guilt and there’s a fleshing out of what happened and that’s not curtailed.

And frankly, the Ford pardon is maybe a good example of that and also you can understand the policy arguments the other way. One of the things that raises, obviously the court in Israel is, it’s not binding precedent in any way, shape or form for this country. And obviously we have a precedent that you can have what are been called recently preemptive or protective pardons. This idea of we’re seeing pardons not just of people who have been charged and convicted and we’ve had President Biden going backwards, it’s commonly used. And obviously it happens with people who are also not charged at all.

And maybe with respect to the issue that’s arisen with President Biden, this idea of protective pardons. One, do you think that would be constitutional? Is there any reason to think that there would be an argument against that? And two, how do you sort of view that, not just from a legal perspective, but let’s take your position currently or even if you were in the White House Counsel’s Office, how you would sort of deal with that sort of issue?

Trevor Morrison: Yeah, those are great questions. I think this is one of those areas where depending on the example you choose, the equities seem to really tug in one direction or another. So President Biden in a way that feels like familial self-dealing, obviously grants a pardon to his son that affects not just the offenses of which he’s been convicted, but really grants a kind of blanket amnesty for any federal charges that might be brought against him for a pretty broad period of time. Is it 10 years?

Mary McCord: 10 years, I think.

Trevor Morrison: So that seems like, at least to some, I think perhaps excessively broad use of a power that’s also being done in a, especially at least familially self-dealing way. We could separate out those two concerns and talk about them separately. But just on the sort of broad amnesty without kind of really preempting any criminal process with respect to other charges that might’ve been brought against Hunter for that 10 year period, I can give you another example where maybe the equities feel like they pull in another direction.

So President Carter granted blanket amnesty for people who had evaded the draft between 1964 and 1973 in violation of the Selective Service Act. In 1947, Truman granted amnesty to 1500 people who had refused to serve in World War II in violation of law then. This was not in response to particular charges necessarily that had been brought, maybe some had, but it was identification of a category of people who had been granted a form of amnesty.

Now, Hunter Biden is a class of one, but if you just want to think about the piece of preemptively granting a pardon or amnesty without waiting for the fleshing out of the facts in a particular context, then I think there are precedents for this. And if I were wanting to defend the constitutionality of a more preemptive use of presidential pardon, you know, I’m less interested in trying to define the original meaning of the precise textual words of the constitution on the assumption that some dictionary is going to give us the answer. I am more interested in the history of how this union is operated under the constitution.

And so the fact that multiple presidents going pretty far back have used the pardon power in this more blanket way in advance of any criminal process even being initiated, let alone a judgment of conviction having been obtained, that would be meaningful to me in deciding what the meets and bounds of the power are.

Now, whether it’s wise for a president to use the power that way, in particular, whether it’s wise for a sitting president, namely President Biden, to basically raise the specter of a kind of institutional unreliability of the Justice Department as the reason that Hunter needs to be pardoned. It’s one thing for Biden to say, I think the particular offenses of which he’s been convicted, he’s sort of exposed to a sentencing level or the fact that the charges were even brought is kind of out of proportion to how criminal justice would ordinarily be administered. That argument can be evaluated on its merits, but that seems not a kind of tenuous use of the pardon power.

For the sitting president to effectively say that the politicization of the Justice Department is so severe that my son can’t get a fair deal on any charges that might be brought against him relating to conduct over a 10-year period is, to put it mildly, not consistent with Biden’s attempt over the course of his administration to depoliticize the Justice Department. I think he has now contributed to the effort that Donald Trump has contributed to greatly in the, in fact, the politicization of the Justice Department by his own accusations.

Andrew Weissmann: But isn’t he thinking about what the department will look like, you know, when he leaves? I totally agree with you that he ran as an institutionalist and he has talked about the separation, the traditional separation in Republican and Democratic administrations. And Mary and I have served through a myriad Republican and Democratic administrations where it’s hands off. I remember being on Enron and it was a third rail for the White House to weigh in on what should or should not have been and it didn’t happen.

But wouldn’t the argument be we’re in such a different world when you have a president elect who had been president, who’s coming in, who talks about the Biden crime family and except for recently, I think on NBC News, has talked about directing prosecutions and the need for retribution. And so that to me sort of signals that we’re in a very different world.

So that the argument would be, you’re absolutely right, Trevor, it’s horrendous and it is signaling this big change and it’s antithetical to his current presidency, but maybe it’s just very realistic.

Mary McCord: Let’s hold that response till after the break because that opens up, I think more questions, particularly in light of the House subcommittee under Loudermilk releasing its report last week, recommending criminal charges against former representative Liz Cheney as well as Cassidy Hutchinson. So this notion of what the next Department of Justice is going to look like is really top of mind.

So let’s take a break and we’ll be right back on that.

(BREAK)

Mary McCord: Welcome back. Where we left off was how do we think about things like pardons and potential weaponization of the Department of Justice in light of where we stand in this moment?

We are right here in the last week of 2024, looking at an inauguration in less than a month and a lot of promises of retribution. And one of the things that Andrew was just talking about with you, Trevor, was one reason Biden might have wanted to do such a sort of a blanket amnesty for his son for things not already charged is concern about retribution, but it also extends well beyond Hunter Biden.

Trevor Morrison: Yeah, for sure. So having said that, look, I think there’s at least some tension between Biden having touted his presidency as one of institutionalism and wanting to reestablish norms of independence between the Justice Department and the White House, which have only ever been, we all have to recognize, they’ve only ever been norms. They’ve been norms that have been subscribed to by really every administration until the Trump administration, but norms, they’re not judicially enforceable except in really extreme cases at best. So it means, their status as norms means that they are vulnerable to being blown through.

You could make a great argument that that already happened in important ways during the Trump administration, although there were limits too. The Mueller investigation was allowed to proceed. It wasn’t shut down in any way that would have been seen as overtly interference by the White House.

So Biden nevertheless says there’s a lot of politicization of a lot of the government in ways that’s bad, and my administration is going to kind of restore some institutional responsibility and kind of rectitude and now we have this, well, you know, the Justice Department can’t be trusted to deliver, you know, fair justice to my son, so I’m granting him a decade long amnesty, amnesty for a decade’s worth of conduct, whatever the charges might’ve been.

I have no idea what charges might be brought against my son, but I’m saying none may be brought for that period of time is really quite something.

That having been said, I don’t mean to suggest that had Biden said, I’m worried about my son, but I’m just going to place my trust in the Justice Department and the career professionals serving there, that charges won’t be brought unless they’re, you know, legitimately defensible with reference to the evidence. I don’t for a second mean to pretend that that would have caused the Justice Department under Donald Trump to perform any differently than however it’s going to perform, which is another way of saying that the norms of independence, the reasons that one would respect the Justice Department as independent of the political process or sufficiently independent of the political process anyway, I think have either all already died or have been placed on very tenuous life support.

And so I do think that to me would be accurate to say that this decision by Biden contributed to a politicized environment in which the Justice Department existed, but I don’t think there was something he could have done that would have meaningfully turned the tide. Or to put another way, the fact that Trump won the election means that whatever it is that Biden tried to do or thinks that he tried to do during his presidency to depoliticize this area of the executive branch ultimately was doomed to fail.

In that context, what should be done? The restoration of these norms of independence seems not a plausible thing in the near term. What should be done? I think there is an argument in defense, for me, less so maybe of Hunter and maybe more so of various of these others on these so-called enemy lists, Representative Cheney and others.

Andrew Weissmann: So yeah, let’s talk about Liz Cheney because Hunter Biden is complicated because there are current charges, there are perspective charges, and there’s the family relationship. Let’s talk about Liz Cheney because we all apparently saw, if there was going to be some criminal case, we all sort of saw what it would be based on. There’s no evidence of sort of improper witness tampering. There’s the statement of it, but there’s no evidence that’s been put forth. And there’s the concern about whether DOJ will be weaponized, not just with respect to her, but with respect to the next Liz Cheney.

This is my concern with respect to Jack Smith. It’s the concern about Jack Smith and his people and then the next Jack Smith.

And so I think of Mitt Romney’s statement about the impeachment that there were senators who didn’t vote for impeaching ‘cause they were concerned about what would happen to them personally. And so the Liz Cheney example, as you started, Trevor, by saying the examples, in many ways, can dictate where you come out.

So does it seem more defensible to you to have that? I’m not saying, by the way, that she would accept it, where that’s sort of a very separate issue. And I personally think that’s sort of a very personal issue, whether a person wants it or not. But whether the White House should be thinking about it as an institutionalist when you’re dealing with Congress.

Trevor Morrison: I think it’s an exceptionally difficult set of questions, frankly. Maybe the only thing I know I disagree with is that anyone who thinks that this is easy, I don’t think that it is.

I’ve heard our colleague at NYU, Rachel Barkow, or I’ve read her express a concern that if you’re pardoning in this direction, you want to take a lot of steps to the extent you can to try and be complete. Because if there are sort of 40 potential targets and you miss two of them, you’ve just focused the ire of this weaponized Justice Department, if we’re imagining that, on these two folks.

And so to go the Liz Cheney direction, it seems to me hard to say that I would stop anytime soon. It just Cassidy Hutchinson and Liz Cheney or something. I’d have to think about casting a broader net because I’m worried about a kind of weaponization. I would also say, right, it’s helpful, it is helpful, and I think important to observe that there is no case whatsoever against Liz Cheney. And so if one believes that at the end of the day, the thing we’re protecting against is criminal conviction, then we have to suppose not just a weaponized and corrupted Justice Department, but a judiciary that finds itself incapable of doing anything about it. And a jury system that starts performing in unbelievably partisan ways.

Now, the politicization of juries is, that’s a long history. And so it’s not impossible to imagine, but I think for me, the harms that Biden would be protecting against if he were to pardon people in this space is less against trying to protect against conviction. And it’s more against the sometimes life-destroying effects of a pending criminal investigation and prosecution. Just the process costs there are immense. And what you mentioned, Andrew, which is concern about chilling the next person.

Concern that just the costs of being a responsible public servant and standing up to abuse of power, in particular, when you’re a member of Congress and the abuse that you’re seeing is in the executive branch might become so high that it’ll have a kind of chilling effect. And you know, in the law, we are often worried about chilling effects. That’s what most of the doctrine of the First Amendment and free speech is worried about.

And so I could see an argument for pardoning here that would be mostly about, I understand that I, Joe Biden, really didn’t succeed in restoring a degree of sort of institutional responsibility that can be counted on going forward in the Justice Department. And that’s going to come under renewed threat. But in the name of trying to protect the next generation of public servants, I’m going to grant a set of pardons here. I could see that.

Mary McCord: So to your point about a chilling effect, both of your points, I mean, we’ve already seen that in some ways with respect to journalism, at least some starts of that. And we should not forget that journalists are also on these enemies’ lists and we’ve seen increasing aggressiveness. Of course, ABC recently settled its suit brought by Donald Trump, a defamation suit to the tune of $15 million. And I think a lot of people, myself included, felt like that was a defensible case. We’ve now seen Trump sue the Des Moines Register for publishing a poll pre-election and bringing this not as defamation, but as basically an election interference case. And he’s threatening others.

And then of course we have the examples of the owners of two newspapers, prominent newspapers, the Washington Post and the LA Times, pulling editorials before the election that had already been written by all accounts and were going to endorse Kamala Harris. So these threats of retaliation and retribution against journalism seem already to be having a chilling effect.

Trevor Morrison: I don’t disagree with that. Again, like the suit against the Des Moines Register and the pollster there on its merits, and so far as I understand the state law that’s being invoked there, seems just as meritless as any attempt to bring federal criminal charges against Liz Cheney.

But the cost that would cause the chilling is just the having to face that ordeal itself. And one certainly gets the sense that Trump and his minions understand that perfectly well, that they have substantial power to chill people, to cause them to censor themselves by just wielding the threat of the prospect of liability, whether it be criminal or civil. You know, you could expand this point about chilling further. I think the patterns of Republican incumbents who’ve decided not to seek re-election over the course of the last eight years is not a random pattern. And that’s folks perceiving a different kind of cost of bucking Donald Trump.

I guess the other thing I’ll just say, again, I think this is a very hard issue, I’m not sure that Biden’s pardoning of Liz Cheney at all can do as much as we might hope to protect the next generation of public servants. There’s going to be a set of folks who if they stand up and act responsibly are liable to come into a target zone over the course of the next four years when certainly Trump is not going to be the one to pardon them, he’s the one threatening them. And so at the end of the day, if he were to do it, it might be something like, this is the most that I can do. But I think one might have to recognize that it might not be all that much at the end of the day.

Andrew Weissmann: Well, and especially it doesn’t, to Mary’s point, it’s obvious to all of us, but just to make sure people understand, a pardon does not in any way prevent a civil suit. In other words, the attacks that Mary talked about could go on regardless of whether there could be a civil suit against the sort of Liz Cheney’s of the world.

Mary McCord: IRS audits.

Trevor Morrison: Absolutely.

Andrew Weissmann: I just have a separate question just to take us into the dystopian rabbit hole since we always end getting more and more upset, which is could a president solicit a crime and then pardon not just himself, we talked about that, but the person who does the crime? Like, I’m not going to say that’s exactly what happened in the January 6th specter of people being pardoned on day one, but what if the hypothetical president says, “I want you to do the following crime and don’t worry about it. It’s not just that I’m going to not tell my Department of Justice to prosecute. I will actually pardon you so that you don’t have to worry about this or any other Department of Justice.”

Andrew Weissmann: Yeah, that is dystopian. So my gut reaction is that if we think that the courts could limit the power of the president to use the pardon power that way, then we aren’t really agreeing that the pardon power is exclusively a presidential power because it feels like we’d enter onto a slippery slope of sort of legitimate uses.

Mary McCord: That’s one of the problems with the immunity decision, right? We didn’t really worry about this nearly as much until presidents got such vast immunity.

Trevor Morrison: Well, that’s right, although immunity might create a whole other pathway for the person who’s been solicited to commit the crime that doesn’t have to invoke the pardon power at all, as I think we’ve discussed in the past. Part of that immunity decision that gives an account of what exclusive presidential power is, is so sloppy and at least susceptible to broad readings. And whatever it is that the president has absolute authority to do and therefore absolute immunity for many legal consequence for, I think at least those within his administration who are acting on his orders to do those things are likewise immune. All of the constitutional precedents we had on exclusive presidential authority before the immunity decision actually involved underlings within the executive branch, not the president. But we talked about exclusive presidential power on the understanding that he needs those people to help effectuate his power.

Same would be true here. So to one up your dystopianism, Andrew, we might not even need the pardon because of the ability to argue that, well, I only did that thing that was criminal because the president directed me to do it. And then it would be, well, was the president using some exclusive authority when he was doing that? That would depend on the domain of the action.

But I think to come back to answer your question directly, I am very skeptical of the ability of the judiciary to police the use of the pardon power that way. And I hope we never have to know the answer to that question.

Mary McCord: Okay, listeners are going to tune in on the day before Christmas. So we have got to end on a higher note than this. So somebody give us something positive to talk about here.

I’m going to go with the mantra that I just stick to because I don’t have a better one, which is that the career women and men of the Department of Justice and the FBI and the rest of the executive branch, I don’t think want this kind of dystopia. And I think we’ll stand up to it. And let’s just hope that holds. I don’t know if that’s super high hopefulness. Maybe help me out, Andrew.

Andrew Weissmann: Yeah, I was going to go to talking about your son’s cooking or our vacation plans because I hope you’re right. And obviously all of us have worked within the executive branch and seen people where like politics doesn’t come up at all. It’s all about people trying to figure out what are the facts and what’s the right thing to do. And I have no doubt that at lower levels, that’s the case. But I think it’s going to be a real challenge for those people. There’s a huge amount of pressure on them right now. Many people understandably are thinking, do I really need this and are leaving? And there’s senior people who might be coming in thinking, hey, people leaving is a good thing. We’re going to replace them with bratschnecks (ph) who are going to just follow.

And to be clear, that’s not saying I want people who when we make a policy decision need to follow it. Every president, every attorney general, every FBI director’s entitled to that. This is a question of when it’s something that you think that is not lawful, either because the law doesn’t support it or the facts don’t support it.

Trevor Morrison: You know, here’s my best attempt. I don’t know how good it is at optimism. I continue to think that one of the most important parts of the story of the last two months of Trump’s first term was the unwillingness of a number of really important senior lawyers in his administration to go along with what it is that he wanted to do, to sort of use the institutions of the executive branch for his own political ends to challenge the election outcome.

I predict that he is not going to succeed in placing into all of the positions that are consequential people who have none of those qualms.

Now, there’s a lot of negatives in that sentence because I’m not prepared to go very far out on that limb, but whether it’s a combination of some career folks who remain despite what we already know is I think effectively unprecedentedly high level of turnover within the career ranks, some combination of that and folks who are actually appointed presidential appointees who saw in the Trump agenda, elements that don’t connect deeply here and who are not prepared to kind of throw over all forms of professional responsibility basically. I don’t think it’s inconceivable that you would have leadership even within the Justice Department who would say there are lines that they won’t cross. And so I’m hopeful of that.

Andrew Weissmann: That seems like a good note to end on.

Mary McCord: It does.

Andrew Weissmann: It looks of optimism.

Mary McCord: As good as it gets.

Andrew Weissmann: Fingers crossed.

Trevor, thank you so much for taking time during the holiday season to be with us. I learned a lot and it’s so great to have this conversation with you.

Trevor Morrison: Thank you and happy holidays.

Mary McCord: And have a wonderful vacation post-holidays, Trevor.

Trevor Morrison: Thank you.

Andrew Weissmann: Thanks for listening. And I hope you all have a safe and warm and happy and healthy holiday season with family and friends. Remember, you can subscribe to MSNBC Premium on Apple Podcast to get this show and other MSNBC Originals ad-free.

Mary McCord: This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineer is Katie Lau. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio and Rebecca Kutler is the senior vice president for content strategy at MSNBC.

Andrew Weissmann: Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.