Constitutional Expert: Jan. 6 Pardons “Most Shameful” in Presidential History

>>> NOW, IF IT WEREN'T TRUMP, IN ANY OTHER SITUATION, A MASS PARDON OF JANUARY 6th INSURRECTIONISTS, TRIED, CONVICTED, AND SENTENCED WOULD BE UNTHINKABLE.

SOME OF THEM FOR SEVERE ACTS OF VIOLENCE, AMONG THEM, TRUMP PARDONED THE FOUNDER OF SILK ROAD, THE DARK WEB CRIMINAL MARKETPLACE.

HE WAS SERVING A LIFE SENTENCE.

ALL OF THIS LEADS TO FORMER GOVERNMENT OFFICIAL PAUL ROSENZWEIG CALLING IT, QUOTE, ONE OF THE MOST SHAMEFUL ACTS OF A U.S. PRESIDENT.

AND HE EXPLAINS TO MICHEL MARTIN WHY TRUMP'S ACTIONS, THESE PARDONS, ARE VASTLY DIFFERENT TO BIDEN'S 11th HOUR PREEMPTIVE ONES.

HERE'S THEIR CONVERSATION.

>> THANKS, CHRISTIANE.

PAUL, THANK YOU FOR TALKING WITH US ONCE AGAIN.

>> THANK YOU FOR HAVING ME.

>> SO, WHEN WE LAST SPOKE, YOU MADE A STRONG CASE FOR PRESIDENT BIDEN TO USE HIS PARDON POWER LIBERALLY, TO PARDON INDIVIDUALS WHO HAD BEEN THREATENED BY NOW PRESIDENT TRUMP OR WHO HAD BEEN HEAVILY CRITICIZED BY NOW PRESIDENT TRUMP.

IN THE VERY CLOSING MINUTES OF HIS PRESIDENCY, HE PARDONED FIGURES LIKE GENERAL MILLEY, DR. FAUCI, MEMBERS OF THE JANUARY 6th COMMITTEE, THE STAFF.

WHAT'S YOUR REACTION?

>> WELL, ONE PART OF IT IS A LITTLE BIT OF SURPRISE THAT ANYTHING I EVER SAY HAS -- ON CNN ACTUALLY CATCHES ANYBODY'S ATTENTION.

BUT I THINK THE MORE DOMINANT REACTION, HONESTLY, IS ONE OF SADNESS.

SADNESS THAT IT HAS COME TO THIS, THAT -- THAT I THOUGHT IT WAS AN APPROPRIATE RECOMMENDATION TO MAKE, AND THAT PRESIDENT BIDEN THOUGHT IT WAS AN APPROPRIATE IDEA TO IMPLEMENT.

THAT REFLECTS A GRAVE AND SUBSTANTIAL DEGREERY DEGRADATION IN OUR EXPECTATIONS OF PRESIDENTIAL CONDUCT.

NOT BY PRESIDENT BIDEN, BUT PRESIDENT TRUMP AND OUR ANTICIPATIONS OF WHAT HE MIGHT DO.

AND, YOU KNOW, THAT -- THAT LEAVES ME VERY DISMAYED AT WHERE WE ARE RIGHT NOW.

>> YOU WERE A COFOUNDER OF THE FEDERALIST SOCIETY.

YOU CONSIDER YOURSELF TO BE CONSER CONSERVATIVE, AND YOU CONSIDER YOURSELF TO BE DEEPLY CONSERVATIVE WHEN IT COMES TO MATTERS OF CONSTITUTIONAL LAW.

SO, HAVING SAID THAT, WHY DID YOU THINK THAT THIS WAS A NECESSARY STEP?

>> WELL, THE CONSTITUTION, OBVIOUSLY, PERMITS A PRESIDENT TO EXERCISE A PARDON POWER IN THIS WAY.

FOR 250 OR 240-ODD YEARS, THAT HAS BEEN UNNECESSARY, BECAUSE WE HAVE ASSUMED, CORRECTLY, THAT PRESIDENTS ACT WITH RESTRAINT, WITH HUMILITY, WITH A GOOD APPRECIATION FOR PAST PRACTICE, FOR HISTORY, FOR PROPRIETY.

I BECAME CONVINCED OF THE NECESSITY OF THIS STEP, OF PARDONING TRUMP'S OPPONENTS, BY THE REALITY OF WHAT TRUMP HAS SAID AND HAS DONE IN THE FIRST 48 HOURS OF HIS PRESIDENCY.

WHICH IS TRANSAGGRESSIVE OF NORMS.

I MEAN, IN A LOT OF WAYS, CONSTITUTIONAL LAW IS ABOUT RESTRAINT.

WE GIVE HUGE AMOUNTS OF POWER TO PRESIDENTS AND TO CONGRESSES AND TO COURTS, BUT WE TELL THEM NOT TO MISUSE THAT.

AND WE -- WE SUCCEED, RIGHT?

WHETHER YOU LIKE THEM OR DISLIKE THEM, THIS IS NOT SOMETHING THAT RONALD REAGAN OR JIMMY CARTER OR GEORGE BUSH OR BARACK OBAMA WOULD HAVE EVER THOUGHT NECESSARY, BECAUSE IT'S NOT SOMETHING THAT ANY OF THEM WOULD HAVE EVER THOUGHT THAT THEIR SUCCESSOR WOULD MAKE APPROPRIATE.

NONE OF THEM WOULD HAVE CONTEMPLATED DONALD TRUMP AS -- AS A SUCCESSOR, AND SO, WE COME TO THIS PASS BECAUSE OF THE TRULY ABERRATIONAL NATURE OF WHAT TRUMP HAS SAID HE WANTS TO DO WITH POWER.

>> YOU HAD PREVIOUSLY DESCRIBED THESE POTENTIAL PARDONS AS BOTH PROTECTIVE AND SYMBOLIC.

DO YOU THINK THAT THEY SERVED THOSE DUAL PURPOSES?

>> CERTAINLY THE ONES THAT WERE ISSUED TO PUBLIC FIGURES WHO WERE AT RISK BECAUSE OF THEIR OPPOSITION TO DONALD TRUMP SERVED BOTH THOSE PURPOSES.

PEOPLE LIKE GENERAL MARK MILLEY, AND REPRESENTATIVE CHENEY, REPRESENTATIVE BENNIE THOMPSON.

ALSO TO THOSE WHO WERE IN TRUMP'S CROSS HAIRS NOT BECAUSE THEY OPPOSED TRUMP, BUT SIMPLY BECAUSE THEY DISAGREED WITH HIM, LIKE DR. FAUCI, FOR EXAMPLE, WHO HAS BECOME A -- FOR THE FAR RIGHT BLOGOSPHERE.

THE PARDONS OF HIS FAMILY, THOUGH COMPLETELY UNDERSTANDABLE IN LIGHT OF DONALD TRUMP'S PENCHANT FOR REVENGE, HOLD LESS SYMBOLIC NATURE, RIGHT?

THESE WERE NOT PUBLIC FIGURES, UNTIL I READ THEIR NAMES IN THE PARDON PAPERS.

>> HERE'S THE THING, THOUGH.

YOU KNOW, HIS PARDONS DIDN'T INCLUDE PEOPLE WHO TESTIFIED BEFORE THE JANUARY 6th COMMITTEE.

FORMER WHITE HOUSE AIDES WHO HAVE SOME VERY COMPELLING AND IT HAS TO BE SAID, DAMNING TESTIMONY ABOUT, YOU KNOW, THE FORMER PRESIDENT NOW CURRENT PRESIDENT'S CONDUCT AROUND JANUARY 6th.

AND I WONDER -- I REALIZE THAT YOU'RE NOT PRIVY TO ANY INSIDE INFORMATION ABOUT THIS, BUT WHAT DO YOU MAKE OF THAT?

I MEAN, WAS THAT AN OVERSIGHT?

>> I DON'T THINK IT WAS AN OVERSIGHT, BECAUSE THAT SUGGESTS IT WAS BY ACCIDENT.

I MEAN, IT -- THE NATURE OF THE LIST SEEMS TO HAVE BEEN CLEARLY DRAWN AROUND A GROUP OF PEOPLE THAT THE PRESIDENT PERCEIVED TO BE HIGH PROFILE OPPONENTS AT REAL RISK.

HE INCLUDED, FOR EXAMPLE, THE CAPITOL HILL OFFICERS WHO TESTIFIED AGAINST PRESIDENT TRUMP BEFORE THE JANUARY 6th COMMITTEE, SO -- IT WAS CLEARLY A CONSIDERED JUDGMENT, AND, YOU KNOW, AS YOU SAID, I'M NOT PRIVY TO WHAT THE FACTORS AT PLAY WERE.

I HAVE TO THINK IT WAS PARTIALLY AN ASSESSMENT OF REAL RISK, AND LIMITATIONS ON RESOURCES.

IT STRIKES ME, FOR EXAMPLE, AS QUITE UNLIKELY THAT THE DEPARTMENT OF JUSTICE AND THE FBI WILL BE ABLE TO BRING HUNDREDS OF THESE PROSECUTIONS AGAINST POLITICAL OPPONENTS.

FOR MYSELF, I MIGHT HAVE GONE A BIT BROADER, BUT I REALLY CAN'T, YOU KNOW, SAY WHAT HE CHOSE TO DO.

>> IN YOUR PIECE, YOUR PREVIOUS PIECE, YOU CRITICIZED TRUMP'S CRITICS, PARTICULARLY DEMOCRATS, FOR TREATING HIM AS AN ABERRATION, RATHER THAN AS A PHENOMENON.

AND I THINK THAT, YOU KNOW, YOU'VE SEEN THAT TENSION IN THIS ADMINISTRATION.

YOU KNOW, IN THE -- IN THE WANING DAYS OF THE BIDEN ADMINISTRATION, FORMER PRESIDENT BIDEN BECAME VERY VOCAL ABOUT WHAT HE SAW AS THE RISKS OF A TRUMP RETURN TO OFFICE.

EVEN AFTER TRUMP'S RE-ELECTION.

HE TALKED ABOUT WHAT HE CALLED, YOU KNOW, HIS DEEP CONCERN ABOUT A CONCENTRATION OF WEALTH AND POWER, AND PEOPLE OF EXTREME WEALTH HAVING ACCESS TO THE WHITE HOUSE IN WAYS THAT HE CONSIDERED DANGEROUS, THIS CONCENTRATION OF WEALTH AND POWER, AS HE SAID.

HE WENT SO FAR AS TO CALL IT AN OLIGARCHY.

AND I WONDER -- HOW DO YOU SEE THE PARDON POWER IN THIS LIGHT?

DO YOU SEE IT AS THE FORMER PRESIDENT COMING TO GRIPS WITH THIS TENSION ALL ALONG?

I ALSO HAVE TO NOTE THAT, YOU KNOW, PRESIDENT BIDEN WELCOMING HIS SUCCESSOR TO THE WHITE HOUSE SAID, WELCOME HOME, GREETED HIM VERY WARMLY, OBSERVED ALL THE TRADITIONAL NICETIES.

THAT HAS TO BE SAID, MR. TRUMP DENIED HIM WHEN HE RETURNED TO OFFICE.

>> YEAH, YEAH.

IT -- IT'S AN AMAZINGLY DIFFICULT QUESTION, ISN'T IT?

YOU KNOW, I WOULD CHARACTERIZE THE LAST FEW MONTHS AS PRESIDENT BIDEN SORT OF TRYING TO PLAY CATCHUP.

AS WE DISCUSSED IN THE LAST TIME I WAS ON, THE DEMOCRATS DIDN'T TREATMENT TREAT TRUMP AS A PHENOMENON FOR THE TIME THAT THEY HELD POWER, THE FIRST TWO YEARS OF PRESIDENT BIDEN'S PRESIDENCY.

THEY MADE NO EFFORTS TO REALLY STRENGTHEN ELECTORAL -- ELECTORAL PROCESSES, THEY THOUGHT OF HIM AS AN ABERRATIONING AND THEY THOUGHT THAT DOING POLITICS AS NORMAL, YOU KNOW, WITH THE INFLATION REDUCTION ACT, THE BIPARTISAN INFRASTRUCTURE ACT, ALL THOSE THINGS THAT ARE KIND OF TRADITIONAL DEMOCRATIC PRIORITIES, WOULD BRING PEOPLE HOME AND BRING PEOPLE BACK TO REALITY.

THE PARDONS, IN THEIR OWN SMALL WAY, ARE A REFLECTION OF THE REALIZATION THAT THAT'S NOT HAPPENING.

THE TREATING PRESIDENT TRUMP AS WELCOME AND WELCOMING HIM HOME THAT REALITY HASN'T BEEN FULLY GRASPED BY PRESIDENT BIDEN OR BY ANYONE YET.

AND WE'RE ONLY NOW STARTING TO SEE WHAT THAT WILL MEAN, AND WE WILL BE, YOU KNOW, WATCHING THIS STORY GO FORWARD FOR THE NEXT FOUR YEARS, AT LEAST.

I MEAN -- TO CITE JUST THE MOST OBVIOUS EXAMPLE, PRESIDENT BIDEN'S PARDONS OF GENERAL MILLEY AND LIZ CHENEY ARE UNUSUAL, OUT OF CHARACTER, AND NOT WITHIN THE NORMS, BUT THEY'RE FAR LESS DESTRUCTIVE OF NORMS THAN WHAT PRESIDENT TRUMP DID YESTERDAY IN PARDONING EVERY ONE OF THE JANUARY 6th INSURRECTIONISTS, INCLUDING THOSE WHO PHYSICALLY ATTACKED AND BEAT UP CAPITOL HILL POLICE OFFICERS.

>> HE PARDONED MORE THAN 1,000 PEOPLE WHO HAD BEEN CONVICTED OF FELONIES.

AND, YOU KNOW, INCLUDING ENRIQUE TARRIO, THE FORMER HEAD OF THE PROUD BOYS.

STEWART RHODES, THE HEAD OF THE OATH KEEPERS.

SO, SOME PEOPLE LOOK AT THAT AND SAY, WELL, OKAY, IT'S -- TELL ME WHY YOU SAY IT'S DIFFERENT.

>> IT'S NOT.

ANYBODY WHO SAYS IT'S ALL OF A PIECE SIMPLY LACKS THE FACULTY TO DISTINGUISH BETWEEN, YOU KNOW, THINGS THAT ARE NOT ALIKE.

THE ONLY SIMILARITY THEY HAVE IS THEY INVOLVE PARDONS.

THE TARRIO AND RHODES PARDONS, THEY WERE PLANNERS OF THE VIOLENT OVERTHROW OF CONGRESS.

THEY ARE, IN MY RESPECTFUL OPINION, OR DISRESPECTFUL OPINION, THE MOST SHAMEFUL ACTS OF PARDON THAT ANY PRESIDENT HAS EVER DONE.

THEY ARE DIFFERENT IN KIND, NOT IN -- NOT IN DEGREE, BUT IN KIND, FROM PREVENTING DONALD TRUMP FROM FURTHER TRANSGRASSING NORMS, BY PROSECUTING ANTHONY FAUCI FOR -- FOR WHAT?

FOR TELLING THE TRUTH ABOUT COVID WHEN HE DIDN'T WANT TO HEAR IT?

BY PROSECUTING GENERAL MARK MILLEY, FOR WHAT?

FOR NOT LETTING HIM USE THE MILITARY TO OVERTHROW THE GOVERNMENT.

THESE ARE NOT ALIKE IN ANYTHING OTHER THAN FORM.

AND, YOU KNOW, I -- I HEAR YOU, THAT IT OFFERS A TALKING POINT, IF YOU WILL.

TO THOSE WHO WANT TO DEFEND DONALD TRUMP, BUT IT IS A TALKING POINT THAT CAN ONLY BE USED BY THOSE WHO WERE ALREADY CONVINCED OF -- OF TRUMP'S INABILITY TO DO ANY WRONG.

THERE'S A TALKING POINT THAT CAN ONLY BE USED BILL THOSE WHO HAVE CHECKED THEIR ABILITY TO DISTINGUISH GOOD -- RIGHT FROM WRONG AT THE DOOR.

I'M SORRY, I'M A LITTLE ANGRY ABOUT THIS ONE.

>> I'M JUST CURIOUS ABOUT WHY YOU THINK IT IS THAT MORE PEOPLE DON'T SEE THIS DISTINCTION?

I THINK MOST PEOPLE, IF A CRIME HAD BEEN COMMITTED AGAINST THEM, ESPECIALLY A VIOLENT CRIME, WOULD BE -- WOULD TAKE ISSUE WITH SOMEONE WHO HAD BEEN DUALLY CONVICTED OF THAT CRIME IN A COURT OF LAW, UNDER THE LAWS OF THE UNITED STATES, BEING PARDONED SUMMARILY BECAUSE SOMEBODY DIDN'T AGREE WITH IT.

WHY DO YOU THINK THAT HASN'T EVOKED A REACTION?

>> IT'S DIFFICULT TO SAY.

FIRST OFF, OBVIOUSLY, THOSE WHO ARE TRUMP TROOPERS, RIGHT, THEY LOVE THIS.

THIS ESSENTIALLY HAS LEGALIZED VIOLENCE IN SUPPORT OF DONALD TRUMP'S INSURRECTION, AND EFFORTS TO MAINTAIN POWER.

WHAT I DO NOT UNDERSTAND IS, YOU KNOW, THE MIDDLE WHO -- WHO JUST SEEM TO HAVE WANTED TO MOVE ON, WHO ARE TIRED, EXHAUSTED BY TRUMP, WHO -- WHO ARE NOT CONVINCED THAT IT WILL BE AS BAD AS ALL THAT.

IF THE -- YOU KNOW, IT IS -- THERE'S AN EXCELLENCE SERIES OF ARTICLES, YOU KNOW, BY TIMOTHY SNYDER AND EARLIER BY HANNAH ARENT ABOUT HOW THE IDEA OF AUTHORITARIANS IS TO EXHAUST THE OPPOSITION.

IS TO TELL LIES NOT BECAUSE THEY WILL BE BELIEVED, BUT THAT SO PEOPLE WON'T BE ABLE TO DISTINGUISH LIES FROM THE TRUTH.

THESE ARE THE ACT TICKS TACTICS OF ONES THAT WANT TO DESTROY THE FACULTIES OF DEMOCRATIC ANALYSIS, OF DEMOCRATIC RATIONALITY.

AND I THINK THAT THE ANSWER TO YOUR QUESTION IS THAT IT'S SUCCEEDING TO SOME DEGREE.

THAT AMERICANS AREN'T AS EXCEPTIONAL AS WE THINK WE ARE, AND THAT WE ARE SUCCUMBING TO -- TO THIS.

I MEAN, THE FLOOD OF EXECUTIVE ORDERS IS DESIGNED TO OVERWHELM YOU.

YOU KNOW, EACH AND EVERY ONE OF THEM IS OBJECTIONABLE.

WHETHER IT'S DECLARING THAT THERE ARE ONLY TWO GENDERS, WHICH IS DECLARING THAT, LIKE, PI EQUALS 3, OR DECLARING THAT THE CONSTITUTIONAL BIRTHRIGHT IS NO LONGER CONSTITUTIONAL, AS IF AN EXECUTIVE ORDER COULD OVERTURN A CONSTITUTIONAL RULE.

ONE COULD GO ON AND ON.

THEY ARE DESIGNED TO MAKE IT IMPOSSIBLE TO FIGHT BACK.

>> SOME HIGH PROFILE REPUBLICANS, INCLUDING THE FORMER REPUBLICAN LEADER MITCH McCONNELL, SENATOR LISA MURKOWSKI, TO SOME DEGREE, SPEAKER MIKE JOHNSON, CRITICIZED THE MOVE TO PARDON ALL THE JANUARY 6th MOB ATTACKERS, THE INSURRECTIONISTS.

TRUMP'S OWN VICE PRESIDENT JD VANCE HAD SAID PREVIOUSLY, IF YOU COMMITTED VIOLENCE ON THAT DAY, OBVIOUSLY, YOU SHOULDN'T BE PARDONED, ALTHOUGH HE DIDN'T SAY THAT AFTER IT HAD ALREADY TAKEN PLACE.

AND I WILL SAY THAT TRUMP'S NOMINEE FOR ATTORNEY GENERAL SAID THAT SHE WOULD WANT TO TAKE A CASE-BY-CASE LOOK AT THESE.

AND HE DIDN'T TAKE ANY OF THEIR ADVICE AND DID WHAT HE WANTED TO DO.

BUT I'M JUST CURIOUS WHAT YOU MAKE OF THAT REACTION.

DOES THAT MEAN ANYTHING?

>> PROBABLY NOT.

TALK IS CHEAP, ACTION IS WHERE IT COUNTS.

YOU KNOW, THERE ARE ALWAYS SMALL RUMBLINGS OF OPPOSITION TO TRUMP.

IT'S ONLY WHETHER OR NOT THEY TAKE ACTION.

SO, I'LL GIVE YOU -- I'LL GIVE YOU THE TEST CASE.

RIGHT?

THE FLIP SIDE OF PARDONS FOR PEOPLE WHO ARE ON YOUR SIDE IS WEAPONIZING THE DEPARTMENT OF JUSTICE TO PROSECUTE PEOPLE ON THE OTHER SIDE.

KASH PATEL, PRESIDENT TRUMP'S NOMINEE TO BE FBI DIRECTOR, HAS PUBLISHED A BOOK IN WHICH, AS AN APPENDIX, HE LISTED PEOPLE WHO HE CONSIDERED ENEMIES OF TRUMP, WHO HE SHOULD BE INVESTIGATING AND THE FBI SHOULD BE PROSECUTING.

INCLUDING MILLEY, FAUCI, CHENEY, SOME OF THE PEOPLE WHO GOT PRESIDENT BIDEN'S PREEMPTIVE PARDONS.

IF MITCH McCONNELL AND LISA MURKOWSKI ARE SERIOUS ABOUT THEIR DISMAY WITH THE MISUSE OF EXECUTIVE AUTHORITY, THEN THEY SHOULD BE SERIOUS ABOUT NOT CONFIRMING AS FBI DIRECTOR SOMEBODY WHO HAS ALREADY ANNOUNCED HIS INTENTION TO MISUSE THE FBI ON BEHALF OF PRESIDENT TRUMP.

>> AND GOING FORWARD, WHAT WOULD YOUR MESSAGE BE TO PERSONS LIKE YOURSELF AND OTHERS WHO FEAR THAT OUR DEMOCRATIC INSTITUTIONS REALLY ARE UNDER THREAT?

BECAUSE OF NOT JUST WHAT THE PRESIDENT HAS SAID HE MAY DO, BUT WHAT HE HAS ALREADY DONE, IN PARDONING PEOPLE WHO STAGED THIS ATTACK ON THE CAPITOL IN AN EFFORT TO OVERTHROW THE GOVERNMENT AND THE PEACEFUL TRANSFER OF POWER.

WHAT WOULD YOU SAY TO PEOPLE WHO REMAIN DEEPLY CONCERNED ABOUT THE MESSAGE THIS SENDS?

>> WELL, BESIDES, NEVER GIVE UP, NEVER SURRENDER, ONE OF MY OTHER KIND OF FAVORITE QUOTES IS FROM GEORGE PATTON.

HE SAID, DO NOT TAKE COUNSEL FROM YOUR FEAR.

YOU HAVE TO MOVE AHEAD.

AND THAT MEANS CONTINUING TO RESIST.

NOT TO BE NIL LISTIC ABOUT IT, NOT TO GIVE UP AND SAY, OH, IT'S ALL OVER, YOU CAN'T FIGHT, WHICH A NUMBER OF PEOPLE ARE.

BUT TO FIND YOUR BATTLES, WHETHER THEY'RE LARGE OR SMALL, AND WIN THEM WHERE YOU CAN.

WHETHER THAT'S JOINING A LOCAL COMMUNITY GROUP THAT -- THAT PROTECTS GAY AND LESBIAN TRANSD GENDERED PEOPLE IN YOUR COMMUNITY, OR IF YOU'RE A LAWYER LIKE ME, ARTICULATING VIEWS ABOUT THE RULE OF LAW, THERE'S SOMETHING THAT EVERY HUMAN BEING CAN DO.

AND I'M NO LEADER, YOU KNOW, I -- I DON'T HAVE ENOUGH CAPACITY TO ACTUALLY MOTIVATE PEOPLE TO DO THAT, BUT PERHAPS SOMEBODY WILL.

>> PAUL, THANK YOU SO MUCH FOR TALKING WITH US.

>> THANK YOU VERY MUCH FOR HAVING ME.

I WISH ALL OF US THE VERY BEST OF LUCK GOING FORWARD.