Publish Date: 11-14-2026
Original Air Date: 8-31-2022

Today we dig through the archives to give context to the fight over investigating the Trump administration now that Democrats control both houses of Congress, with a look back at the long history of the powerful escaping accountability in the United States, from the amnesty for Confederate leaders to Nixon's pardon, Iran-Contra, and Obama's choice to “look forward.”

Full Show Notes

Welcome to this throwback edition of the award-winning Best of the Left podcast, where we remember the past and choose to repeat it. Do you remember four years ago when everyone was debating whether Trump should be held accountable for any of his crimes during his first term, but the Justice Department and various state attorneys general didn't move fast enough to get to trial before he became president again, and then he pardoned everyone involved in the January 6th insurrection? And do you remember how no one was held accountable for the Flint water crisis? And do you remember when in 2009 we were debating whether George W. Bush should be held accountable for any of his war crimes during his administration?

 

And Obama said he wanted to look forward, not backward. So now Bush is a painter or something instead of facing charges at The Hague. And do you remember back in the late 80s when we were debating whether to hold anyone from the Reagan administration accountable for the crimes of Iran-Contra? Then some convictions were overturned on appeal, while others who were still under indictment were preemptively pardoned by George H.W. Bush before their trials. And do you remember how in 1974 Nixon had to resign the presidency in shame for all the crimes he committed related to Watergate? And how only one month later he was granted a full pardon by Gerald Ford, who had been his own vice president, allowing him to sell his story through interviews and a memoir so that he could live out the rest of his life as a wealthy private citizen?

 

And do you remember the Teapot Dome scandal from the 1920s where executive branch authority was abused in a bribery scandal, covered up, and there were very few convictions because the witnesses were granted immunity? Probably not. Do you remember how thousands of black people throughout the country were lynched to death with impunity because almost no one was ever held to account for those crimes? and that they were actually largely celebrated with people taking group photos posing with bodies hanging in trees to make postcards to brag about them? And do you remember how almost all the Confederates who rebelled against the United States in an effort to maintain slavery were essentially all granted amnesty for treason by 1868

 

and Reconstruction was ended before enough reforms could be implemented to avoid the horrors of the Jim Crow era that would follow? Well, I do. And I think those things are bad. At the risk of sounding like I want to be a member of the Law and Order Party, I think there's something to be said for punishing people who commit crimes by abusing their positions of power. Maybe that sounds crazy, but that's how I feel. Now that Democrats have taken control of both houses of Congress, the loudest demand from the Trump administration is that nobody be investigated and nobody be held to account. Democrats are genuinely considering how much time should be dedicated to investigating the crimes of the most explicitly and obviously corrupt and abusive administration in modern American history by far.

 

Well, back in 2022, while we were waiting to see if Trump would ever be indicted, we made this episode on our nation's history of avoiding accountability, which seems relevant to today. And so, to look back to better understand the benefits of holding people to account and the drawbacks of failing to do so, sources today include Pitchfork Economics, Democracy Now!, The Majority Report, This Week, Reveal, Cape Up!, MSNBC, The U.S. National Archives, and the PBS NewsHour.

 

we basically set out to find out why aren't rich people going to jail anymore why does this feel like there's this avalanche of what's known as elite deviance in the academic literature and yet elites aren't going to jail the way that they used to be when i was talking about this with my editor he said i really want to get the sense of the cat and mouse game this catch me if you can chasing criminals across the world, moving money around. And then the minute I started looking into this, the first thing that I found was that there isn't a cat and mouse game. And what it really

 

requires to bust rich people, the most damaging form of crime we have in this country, is just the blunt application of resources. And it's just something we don't dedicate resources to anymore. It's something that we know where to look for it. We know exactly the forms that it's taking. We know how to get money back from the Bahamas, but it just takes months of work and we're not willing to invest in it anymore. So that's a boring answer, but it's the true one. First of all, can you track when you think this new age, you call it the golden age of impunity, where the very wealthy, very powerful are able to commit really, you point out a lot of financial crimes.

 

You can also look at other types of crimes that they're committing. Obviously, Epstein is in the news and he's committing these crimes over a long period of time without real consequence until very recently. There is this kind of age of impunity. When do you track it back to if you had a back cast? Well, there's a couple layers to this. The impetus, the most obvious finding that we began the story with was this idea that there are now fewer white collar prosecutions than at any time since we started tracking them. Since researchers started looking into this in the 1990s, we now audit only about 3% of millionaires.

 

It's in the triple digits somewhere, the number of white-collar prosecutions. The easiest way to illustrate this is that for the savings and loan scandal in 1989, 700 people were convicted. For Enron in 2001, about 40 people were convicted. And then for the financial crisis in 2008, one person was convicted. And so there's a very clear line downward of just how much interest we have in this anymore. But what's really interesting is that it's really a nesting doll type of catastrophe. So the first layer of it is just we're doing fewer white collar prosecutions. But the second layer of it is really that white collar is not a very accurate term.

 

Because when you start looking into this, what you find is that most of the white collar prosecutions, I'm making air quotes, are actually low level stuff. stuff. It's like identity theft. I read somewhere that four out of five people convicted of embezzlement made less than $10,000 a year before they were convicted. It's middle managers using the company credit card to buy themselves an iPhone. It's not high level Enron banker securities fraud stuff. And you point out in the piece that this is partially due to if the statistics around white collar crime are inflated. So if you're reading the statistics, you might assume, oh, we're actually prosecuting quite a lot of roight-collar crime, but it turns out what we're prosecuting are these relatively minor players for these kind of minor crimes.

 

And meanwhile, the uber-wealthy committing really egregious tax evasion or other types of fraud or abuse are getting away with it. The most damaging forms of crime are those committed by the powerful. If you look at something like the Flint water crisis, that's 100% done by elites. You look at something like the opioid crisis. You look at something like Enron jacking up the prices of energy by faking all these blackouts in California and the price of energy spiked by, I believe, eight times in California. These are huge effects on people's lives. And yet our entire system of criminal justice is really meant to go after bad apples. It's individuals working with no institutional support.

 

But then the way that one researcher put it to me was we can't go after bad orchards when there's entire organizations that are acting terribly like the Catholic Church or Goldman Sachs or one of these other big financial firms in the financial crisis. it's really impossible for the criminal justice system to pluck any single person out of that and say you were doing wrong because the responsibility is so diffuse across the organization that it is almost seen as unfair to say, well, this one person was at the heart of it because you can't really prove it. So it's difficult to track to when, but we know that over time,

 

and I thought that was an incredible outline, what you're going from hundreds of prosecutions to dozens of prosecutions to one prosecution. So we know that it's declined. And you interrelated in the piece with the fact that we have really deprioritized this as a government, like our federal government in particular, although I assume that this is also trackable at the state level. It takes really time and resources. It's not a game of Clue or Catch Me If It Can. It's actually just really hard drudgery work that takes real human time and capital and purpose and attention by these agencies, and that's just been wiped out. Yeah. The pattern that has repeated itself

 

over and over again since the 1980s is you have these regulation agencies that are supposed to be looking into polluting in the rivers or toys that are going to kill us or these kinds of background risks to the population. And what happens is these agencies, when Republicans are in government, they cut their budgets. And then when Democrats are in government, They increase the amount they want those organizations to do. So over time, you have fewer and fewer resources and more and more obligations. So what this does is it adds up to this thing where every time a scandal reveals how weak these organizations are, Congress steps in and makes it worse.

 

So after Enron, for example, we passed Sarbanes-Oxley that puts all of these extra obligations on the SEC. They have to review tons more companies, trillions more in assets, and they get, I believe it was like 200 more inspectors. So it's like they're asked to do twice as much and 10% more staff. And then by the time we get to the financial crisis, again, Congress says, well, you were asleep at the wheel. Why weren't you doing this? And then they come in, they pass Dodd-Frank, which again gives the agency way more to do. And then they again give them 5% more staff. So we've just set

 

ourselves up for the same thing to happen again, because we're only going back and correcting the mistakes of 20 years ago rather than bringing these agencies up to where they need to be now.

 

We end today's show in Michigan, where on Tuesday, the state Supreme Court threw out charges against Republican former Governor Rick Snyder, his former health director and seven other former officials for their role in the deadly Flint water crisis. The court ruled unanimously the judge who issued the indictments lacked authority to do so because he acted as a one-person grand jury. Judge Richard Bernstein wrote in a concurring opinion, the Flint water crisis stands as one of this country's greatest betrayals of citizens by their government, yet the prosecution of these defendants must adhere to proper procedural requirements because of the magnitude of the harm that was done to Flint residents."

 

Michigan Solicitor General Fadla Hammoud, who helped lead the Flint prosecution, said these cases are not over, and vowed to prove the allegations in court. In 2014, Flint's unelected emergency manager, appointed by Governor Snyder, switched the city's water supply from the Detroit system, which Flint had been using for half a century, to the corrosive Flint River as a cost-saving measure. Soon after, Flint residents complained about discolored, foul-smelling water. First the water was infested with bacteria. To treat the bacteria, the city poured in chlorine, which created a cancerous chemical byproducts, then a deadly outbreak of Legionnaires' disease, which is caused by a waterborne bacteria spread through Flint, killing 12 people, sickening dozens—one of the largest recorded outbreaks

 

in U.S. history. The change in Flint's water supply also caused widespread lead poisoning in residents, particularly children in the majority Black city. Neera, let's start with you. Your response to the throwing out of the conviction of the governor of Michigan and his officials? Yes. I mean, this is the second time for some of these officials are being charged. And it really feels like the illusion—like justice is becoming an illusion for Flint residents. Could you talk about—could you also respond to this and speak specifically about the role of Michigan Attorney General Dana Nessel? I mean, this really feels like a slap in the face, because she ran on a platform

 

that she was going to bring justice to Flint residents. And, you know, like less than six months of her taking office, like the charges against folks were being dropped and it took over a year for the next set of charges to be brought up and now this is being dismissed. And it's really offensive because one of the other things I wanted to lift up is even though the Supreme Court said that this one-person grand jury is unusual. I mean, it's pretty common, like, in poor communities within Michigan. There are dozens of cases right now, the active cases, that went through a one-person grand jury. So, it really feels like there is one, a justice system for

 

poor residents, including, like, residents in Genesee County, and another justice system, if you're the former governor or department head for the state of Michigan.

 

Let's bring Melissa Mays into the conversation. You're in Flint right now. You and Naira were really the leaders at the time, at the height of the poisoning, whether we're talking about Legionnaire's disease or we're talking about the lead poisoning of children. Melissa, lay out the scope of the problem. What happened in Flint? Well, listening to our interviews from six years ago, not a lot's changed. Basically, the state's still making all of the decisions for us. They're making the decisions about us, without us. They have not even finished replacing our service lines. And with our federal lawsuit, our Safe Drinking Water Act lawsuit, this should have been done by 2020. But here we are dragging

 

it out because the state's doing everything they can to avoid paying things. And actually, Flint rising right now is going to an additional 1,419 homes that the city and state never even reached out to to get their pipes replaced. So that's still going on. People still don't have health care. We are still having to get people proper information. So again, the state has also spent tens of millions of dollars of our tax money to avoid justice, to drag out the civil cases, to drag out the criminal cases. And again, three years ago, almost to the day, Attorney General Dana Nessel, threw out all of the criminal cases that had been built for three years

 

prior to that. And many of those were actually moving forward to trial for manslaughter, actual serious charges. But she tossed them out with no good reason, political issues, I guess. But again, this isn't a political issue. This is a human rights issue. We're day 2,988 now without Queen and Safewater in Flint. And no one is being held accountable. No one is seeing justice. No one is seeing reparations in Flint. Our homes, our bodies, our lives are still damaged and destroyed, and the people responsible are getting away with it, because, like Nayyara said, they have—rich white folk and government have a whole different justice system than the rest of us.

 

Now, Nayyara, the Michigan Supreme Court threw out—and I said before the convictions, it's the indictments against the governor and a number of his aides for the deadly Flint, Michigan, water crisis. Court ruling six to zero. So, the judge who issued the indictments did not have the authority to do so. That doesn't mean that this case is thrown out, that it was just done procedurally wrong. So how do you move ahead, on the one hand, holding these officials accountable up to the governor, and then how you move ahead with dealing with this crisis today? I mean, talking about the lead poisoning of the children of Flint, a majority Black City,

 

what this means for the future. And ultimately, you've called this actually a crisis of democracy, because Snyder empowered unelected town managers that he put in place in mainly black cities of Michigan to run your city and others. Yes. Well, you know, like, when the Supreme Court, like, voided, like, those indictments, it was really like a slap in the face. It just really felt like, you know, like, when are we going to actually receive justice? And in the eyes of many Flint residents, justice for them isn't getting their lead service line replaced. It's actually saying someone convicted and going to jail for poisoning 100,000 Flint residents.

 

And then also, unfortunately, the systems that created Michigan's emergency manager law is still in the books. So this is something that is going to be ongoing and we have to continue to fight in the streets for justice that we deserve.

 

the united states department of justice requested that george w bush richard cheney donald rumsfeld colin powell condoleezza rice and paul wolf of its granted procedural immunity in a case that alleged that they planned in wage the iraq war in violation of international law this motion was filed in a case where in a an iraqi mother and refugee now living in jordan filed a complaint earlier this year in san francisco federal court where she allege that the planning and waging of the war constituted a quote crime of aggression against iraq the legal theory that was used uh... by the nuremberg tribunal the d o j claims that in planning and waging the iraq war ex-president bush and key

 

members of administration were acting within the legitimate scope of their employment and i've got some new from suit chief counsel uh... indir komar of komar law said they are filed this motion it pursuant to the westfall act certification of nineteen eighty eight which permits the attorney general at his or her discretion in other words they don't have to do this to substitute united states as a defendant and essentially grant absolute immunity to government employees in the lawsuit sunday salla alleges that richard cheney don ronso paul wolf let's began planning for the iraq war in nineteen ninety eight through their involvement with the project for the new american century

 

once they came to power she alleges that cheney rumsfeld wolf it's convinced other bush officials to invade iraq by using nine eleven as an excuse to mislead and scare the american public into supporting a war she claims the united states failed to obtain united nations approval prior to the invasion rendering the invasion illegal and an active impert permissible aggression her attorneys say they do not see how the westfall act could apply here because the planning and the conduct at issue began prior to these defendants entering into office but uh... good for the obama administration for letting bygones be bygones

 

The most popular question on your own website is related to this, on change.gov. It comes from Bob Furtick of New York City, and he asks, Will you appoint a special prosecutor, ideally Patrick Fitzgerald, to independently investigate the gravest crimes of the Bush administration, including torture and warrantless wiretapping? We're still evaluating how we are going to approach the whole issue of interrogations, detentions, and so forth. and obviously we're going to be looking at past practices. And I don't believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that, for example, at the CIA,

 

you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering. So no 9-11 commission with independent subpoena power? We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law that they are above the law, but my orientation is going to be to move forward. So let me just press that one more time. You're not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence wherever it leads?

 

What I think my general view when it comes to my attorney general is he's the people's lawyer. Eric Holder's been nominated. His job is to uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics. So ultimately, he's going to be making some calls. But my general belief is that when it comes to national security, what we have to focus on is getting things right in the future as opposed to looking at what we got wrong in the past.

 

Greg Grandin, I'm wondering your assessment of the impact of the Panama invasion on the Bush presidency, because he was always battling criticism that he was a wimp, that he was not fit to be president, and how this affected him? Well, he was. He was constantly fighting the image of being a wimp and ineffectual, living in the shadow of Ronald Reagan. He was called Reagan's lapdog. He had a long history of violence in the third world, starting back from his days in West Texas, with Zapata Oil Company. He was involved with the CIA, which they helped run logistics to the Bay of Pigs. As head of the CIA, he presided over the head of the CIA in 1976, during the height of Operation

 

Condor, which kind of organized national death squads in Latin America and coordinated their activity. The single largest run of bombings and executions carried out by Condor happened while Bush was the head of the CIA. Iran-Contra as vice president. When you say Iran-Contra, just if you could expand on that, especially for young people who don't understand what this was. Well— Iran-Contra was a hydra-headed scandal that involved selling high-tech weaponry to Iran, diverting the profits to support the anti-communist Contras in Nicaragua and Central America— In violation of U.S. law. In violation of U.S. law, but also in my gesture to it meant that it supported the worst kind of death squatters and assassins and fascists

 

in Central America throughout the 1980s, and Bush was deeply involved in that as vice president and coming out of his work with the CIA. So my point to the gleaner of Panama is that Bush had a long history of violence in the Third World as a way of establishing himself, which obviously continued with the first Gulf War. And a key part of that Iran contract is that once Bush becomes president, he pardons all the people who were involved with him. No, not once he becomes president, when he's leaving, after he's defeated— When he's leaving, when he's leaving, yeah. When he's leaving as president. … after he's defeated by Clinton.

 

And at Christmas Eve in 1992, he pardoned six of them. And Lawrence Walsh, the independent prosecutor, says that this completes the cover-up of Iran-Contra. So in some ways, it's a precedent for current politics in terms of the limits and limitlessness of presidential power to sweep scandals that they're involved in under the rug. Now, President Bush defended his decision to issue the pardons. He issued a statement saying, in part, first, the common denominator of their motivation, whether their actions were right or wrong, was patriotism. Second, they did not profit or seek to profit from their conduct. Third, each has a record of long and distinguished service to this country.

 

This is Kasper Weinberger, former secretary of defense for the Reagan administration, speaking shortly after he was pardoned by George H.W. Bush. I'm completely confident that I would have been acquitted in a real trial when I and my real attorneys, Bob Bennett and Karl Rao, who are, I think, the finest in the country, would be participants, and they would present real evidence to a real jury. I am very pleased, however, and very relieved that my family and I have been spared this terrible ordeal of a very long and unjustified trial. Now, Lawrence Walsh, who was so utterly frustrated by this, said this was the decapitation of the investigation.

 

He had come out of the Eisenhower administration, actually. Talk about—this was Caspar Weinberger and the other defendants who had their records wiped clean. They had records wiped clean. A lesson for President Trump. And the scandal went down the memory hole. Iran-Contra was consequential in the sense that it brought together a lot of the different coalitions that made up the Reagan administration, the evangelical right, the neoconservatives, the militarists and anti-communists, and they gave them Central America to run wild with, basically funding the Contras, which were the anti-communist insurgencies seeking to overthrow the Sandinistas. Michael Isikoff wrote in 1991, the Medellin cartel, once branded by U.S. officials as

 

the world's most violent and powerful drug trafficking organization, made a $10 million contribution to the U.S.-backed Contra guerrillas fighting during the 80s to overthrow Nicaragua's Sandinista government, a former cartel leader testified today. Yeah, I might be wrong, but I think they routed that through Manuel Moriega. That's how it got to the Contras. So it brought together all of the worst elements. But the larger point is all part of overcoming the Vietnam syndrome. It's all about the executive branch figuring out how it can reassert and project military power free from all of this democratic oversight. that Congress had prohibited aid to the Contras. And that was the main prompt that forced the Reagan administration to figure out—

 

And the main operation run through Vice President George H.W. Bush's office? And Oliver North and an interwar party. Oliver North was the point person. That's Bush's legacy.

 

I always try to get past the Watergate break-in as quickly as possible because it's just the tip of the iceberg. The tip of the iceberg that ultimately revealed how Nixon was involved in political conspiracy, sabotage, and obstruction of justice. A lot of the evidence came from the famous Nixon tapes. Richard Nixon was cursed and blessed with taping in the Oval Office and various other White House locations. Nixon's secret recordings were a goldmine for the House Judiciary Committee, which used some of them to build an obstruction of justice case against the president. But Ken was convinced he could find even more examples of abuses of power.

 

So when the National Archives released the tape in bulk, he did some digging.

 

This is conversation 437-19. It's hard to hear, but it's a pardons bombshell. It's 1973, and Nixon is talking to White House Chief of Staff H.R. Haldeman. The Watergate cover-up is collapsing, and the president is trying to shield himself. In one part, Nixon says, there's nothing more important than to keep me in this effing office. There's nothing more important than your job has than to keep me in this office. The ace of Nixon's sleeve is the pardon power. Nixon tells Haldeman that if he can bury the trail connecting him to Watergate, it's pardons all around. He says, I don't give a... I don't give a... What comes out on you.

 

What comes out on you, there's going to be a total pardon. There is not being a total pardon. Now, this promise, which I found back in the 1990s when I was going through the tapes on my own, had never come to light during the Watergate hearings. And it would have been all by itself an impeachable offense. What is Nixon telling his staff and the people that may have committed illegal acts about pardons? What is he talking to them about? The president was telling his top aides, who are also his co-conspirators in obstruction of justice, that they could commit perjury before the Senate Watergate committee and count on a pardon from the president.

 

He was basically abusing his pardon power, perverting his pardon power as a get out of jail free card, a way to put himself above the law.

 

With Trump, we're not going to need secret tapes to prove that he dangled the possibility of pardons over the heads of key witnesses against him. That's because this time it's being talked about in the open. Here's Trump's lawyer, Rudy Giuliani, being interviewed on CNN. You said, I think this may get cleaned up, this probe, with a few pardons. These things get cleaned up. Ford did it. Reagan did it. Carter did it. Clinton did it. And Bush did it in political investigation. So you're saying after the probe is over, it may be cleaned up with any part. If people were unfairly prosecuted.

 

In Richard Nixon's case, he never got to grant those pardons. A year after that conversation with his chief of staff, his presidency was crumbling. There had been a vote by the grand jury to characterize Nixon as an unindicted co-conspirator in obstruction of justice. Dan Coble is a professor of law at Capital University in Ohio. Dan says in the final days of Nixon's presidency, White House aides are starting to think about the president's exit strategy. This is when Nixon goes from being the person who grants pardons to someone who could benefit from one. The first mention of a pardon for Nixon comes on August 1st, when Secretary of State Al Haig calls a meeting with the vice president, Gerald Ford.

 

Now you have to remember, this is Ford as vice president, who has no role in pardons at all. And so he's got Haig giving him a handwritten document that says that a president can pardon prior to indictment in the federal system. Hague spells out a few options, and he tells Ford that the president could pardon himself or be pardoned by his successor. Ford is surprised by this, and for good reason. It's the first time a U.S. president has ever tested the waters of pardoning himself.

 

But it never comes to that. Instead, on August 8th, 1974... Good evening. This is the 37th time I have spoken to you from this office. Facing possible impeachment, Richard Nixon resigns. Therefore, I shall resign the presidency effective at noon tomorrow. Vice President Ford will be sworn in as president at that hour in this office. Ford becomes president, and he's eager to put Nixon behind him. My fellow Americans, our long national nightmare is over. He wants to get to work on problems his administration has inherited. Unemployment, high inflation, and a domestic energy crisis. But the country is still obsessed with Watergate. And the public wants to know what will happen to Nixon.

 

Almost a month into his presidency, Ford does what he never imagined doing. Serious allegations and accusations hang like a sword over our former president's head. He pardons Nixon. To the pardon power conferred upon me by the Constitution, have granted and by these presents do grant a full, free and absolute pardon unto Richard Nixon for all offenses against the United States. Years later, as a law professor writing about clemency, Dan saw this move as the most constitutionally significant pardon in U.S. history. And he thought, wouldn't it be cool to ask Ford why, in the end, he decided to do it?

 

Hello. Good afternoon, President Ford. This is Dan Coble, professor at Capital Law School. This is the first time this 2001 interview has ever been made public. Yes, nice talking to you, Dan. Nice talking to you, thank you. Ford says when he first came into office, he wasn't leaning towards pardoning Nixon. Then came his first presidential press conference on August 28, 1974. Please sit down. Good afternoon. At the outset, I have a very... He felt that the country had a number of significant economic problems, foreign policy problems. Would you use your pardon authority if necessary? And yet the only questions that the press seemed to be interested in, in his view, pertain to what will happen to Richard Nixon.

 

May I just follow up on Heller's question? Are you saying, sir, that the option of a pardon for former President Nixon is still an option that you will consider depending on what the courts will do? Of course, I make the final decision. Well, as I returned from that press conference where I was convinced that the only way to solve the problem was to think about granting a pardon. And that's your first press conference where you had several pardon questions. I had many pardon questions. Yeah. And so I went back to the Oval Office, and as I recall, I asked Phil Buchan. Phil Buchan was a chief White House lawyer.

 

To explore my authority in the first place and to report back to me because I was very frank. I was considering the possibility, providing it would achieve what I thought was necessary, getting Mr. Nixon's problems off my desk. So that press conference really triggered your realistic consideration of it right off the bat, huh? Absolutely. I was dismayed that the press was so preoccupied with that that I could visualize that every press conference that followed for the next X number of months would be the same. And I thought that was unfortunate from the country's point of view. Ford was in a bind. The public wanted a resolution.

 

Nixon was threatening to plead not guilty if he was prosecuted, promising to drag a messy trial through the courts. president gerald r ford summoned newsmen to the white house suddenly this sunday morning and announced that he was granting a full free and absolute pardon to former president now you've been quoted as calling the pardon decision the most difficult of my life ever i I had a visceral feeling that the public animosity to Mr. Nixon was so great that there would be a lack of understanding.

 

And the truth is, that's the way it turned out. The public and many leaders, including dear friends, didn't understand it at the time. His very dear friend, who had been his press secretary for years, resigned when he granted the pardon to Nixon. He asked him not to resign, but the day that he did that, he said, I cannot work for you any longer. And he resigned. And that was a huge personal loss to Ford. So he got tremendous pushback, I think, for having granted the pardon. Do you think he expected that? It's such a controversial decision, even looking back now. Did Ford understand the consequences of that decision?

 

He knew that there were so many people who hated Richard Nixon who would never forgive him for pardoning him. He suggested that he wanted to grant the pardon quickly because it was like ripping a bandage off a wound. Better to do it quickly and get the pain out at once rather than do it slowly or drag it out. And the outcry wasn't because of the pardon alone. I was criticized that I didn't get an admission by President Nixon that he was an error and so forth. But Ford didn't look at it that way. One of the very interesting personal facts about Ford is that he, for the rest of his life, kept in his wallet a page from an opinion of the Supreme Court in a case called Burdick v. United States.

 

I have the card in my pocket, which I carry with me. Let me try to find it here. Is that the Burdick case? that justice has found that a pardon carries an imputation of guilt, acceptance, a confession of it. So whether Nixon agreed to the pardon, the fact that he accepted it is a confession. I ultimately came away from my interview with him convinced that he had acted out of principle. He did what he believed was best for the country as opposed to best for himself. And in fact, the fact that critics who had said that he had done the wrong thing with Nixon, in retrospect, had changed their mind and said that Ford had done the right thing for the country.

 

Were you ever worried that maybe Nixon had done anything else that you didn't know about that you'd be pardoning him for? That was plenty.

 

That's wonderful. So that was enough. In other words. For the destruction of justice, that was ample.

 

I want you to define a term that you see when you go to the Legacy Museum, when you go to the National Memorial for Peace and Justice. And that is racial terror lynchings. I have that right? Yes, that's right. So what we're talking about are lynchings that were designed to terrorize people based on their race. In, I think, popular culture, we have a notion that lynchings were what happened when someone was hanged. And of course, lots of lynching victims weren't actually hanged. They were drowned. They were beaten to death. They were shot. They were burned alive. And so when we talk about lynchings, we're talking about a category of crime committed by

 

groups of people. And racial terror lynchings are murders, crimes committed by groups of people of African Americans to terrorize the African American community. There was mob violence, there was frontier justice in many parts of this country where there was no functioning criminal justice system. If someone did something violent or broke the law, a group might come together to exercise punishment against that person. And in that respect, you would see white people hang, you'd see other kinds of people hang, but they weren't trying to terrorize the community. It was typically for a well-known violent crime around which there was some group consciousness that someone had to be punished. Black people were typically lynched in communities where there was

 

a functioning criminal justice system. There was no need for frontier justice. And in fact, hundreds were pulled out of jails and courthouses to be lynched. And these lynchings were violence directed not just at that individual, but at the entire African American community. Black people were lynched for things like walking too close to a white woman, for asking for better wages, for preaching equality. And these violations, these social transgressions would be something that could get African Americans lynched, and that wasn't true for anyone else. So when we talk about racial terror lynchings, we're talking about the racialized violence that was directed at African Americans following emancipation to reinforce racial hierarchy,

 

to reinforce white supremacy. They were designed to terrorize. These bodies would sometimes, the battered bodies would be dragged through black communities. I was going to ask you about that because it wasn't, hanging the person wasn't enough. They were after hanged, shot, burned, and as you were about to say, dragged through the streets and particularly through black communities. Yes, it was really quite graphic. It was quite torturous. And sometimes people would be castrated or their fingers would be cut off. and this violent, torturous mutilation of the body, shooting the corpse a thousand times, cutting off parts of the body, selling these parts as souvenirs, posing with the body as if there was something

 

to celebrate in this barbarity. Sometimes someone would be positioned near the hanging body and would not allow the black family or black church or black community to come and claim their loved one. They would insist that it hang there for three or four days to terrorize more people. There are counts of lynchers tying the body to a vehicle and driving through the black part of town. And if black people went inside and closed their doors, they'd actually force people out of their homes to see these corpses dragged through the streets. And in that sense, it was terrorism. I think when people characterize the violence that we're talking about as a murder or even as a hate crime, they're not adequately appreciating the scale of it.

 

In talking about terror and terrorism and the fact that you had people watching these lynchings, in some cases up to or more than 10,000 people, we've seen pictures of people posing, smiling underneath a lynched person. where's the accountability for those people who are in those photos who watched what happened is there any way to hold them accountable even in some moral sense i think it's a really important question i think jonathan you've gotten to the heart of why we're trying to do what we do you cannot engage, participate, look the other way in the face of this kind of spectacle violence and go unharmed, go unchanged. White families would bring their small children and they would

 

lift them up so they could get a better view of this human being being burned to death, this human being being tortured, this human being being mutilated. And the psychic trauma, the scarring, the injury that does to a normal healthy human being can't really be measured. And when we don't express that this is wrong and when we don't hold people accountable, what we do is we create a relationship to these black people that suggests that their victimization is not the same as the victimization of other people. When you hurt black people, when you batter black people, when you beat black people, it's not a crime.

 

It's not bad. It's not even immoral. And that consciousness is, I think, at the heart of what is so troubling about our silence about this history. You know, the point often that the people who perpetrated these racial terror lynchings weren't the Ku Klux Klan. They didn't cover their faces. This wasn't done in the middle of the night. They could have buried the bodies underground to mask this violence, but instead they did the opposite. They lifted these bodies up. They invited the whole community to come and participate. They sometimes served lemonade and deviled eggs as refreshments while this torture was taking place. And they acculturated communities into accepting this kind of brutality against black people.

 

And the legacy of that, I think, is quite tragic. So accountability, for me, is at the heart of what we're trying to do. We can't go on. We cannot pretend that something really destructive, something really corruptive happened when communities came to celebrate this kind of violence. We have to talk about it. We have to acknowledge the wrongfulness of it. I think we would benefit as a society if we expressed our shame about it. And everybody was complicit. Not just the people who literally showed up and hanged the person or shot the person or drowned the person. It was all the elected officials who stood out of the way.

 

It was the federal government who did not intervene despite hundreds and hundreds of requests that there be some kind of intervention. It was law enforcement. And the tragedy of that terror, which is still felt in communities today. Older people of color come up to me sometimes and they say, Mr. Stevenson, I get angry when I hear somebody on TV talking about how we're dealing with domestic terrorism for the first time in our nation's history after 9-11. They said, we grew up with terror. We had to worry about being bombed and lynched and menaced every day of our lives. and it actually provokes them that our nation is capable of fighting a war on terror,

 

sending troops and spending billions to confront the threat posed by terror when our nation did nothing, while millions of people, African American people, were being terrorized and traumatized by this violence, where they were sending away their loved ones because they couldn't feel safe and secure. And so accountability is at the heart of this. How do we recover from something so brutal, so tragic, so devastating as the legacy, as the evidence of brutal violence that is presented by these lynchings?

 

I think that you're seeing conversations happening on at least three fronts. So the first is the investigation itself. What evidence is being found and what does the evidence ask prosecutors to continue to do? What questions have they not yet answered and where do their investigators need to go? A separate set of questions is looking at the information and assessing the true national security risk or harm of having that information live at Mar-a-Lago. Keep in mind, if the Justice Department were to bring any charges against Donald Trump and the jury and the public saw that information and did not feel that a compelling risk to national security had actually occurred, it could be really difficult to win at trial.

 

So it's not just the classification markings on the documents themselves. It's really what was the risk. Because keep in mind, when Hillary Clinton had classified information on her server, it was about drone strike programs that had already been widely reported in The New York Times and in The Washington Post. It was hard to imagine that a jury would have found her guilty of risking national security for having things on her server that had already been reported. And then the third conversation is what does it mean for the Justice Department to prosecute a former president, putting Trump aside. What is that historic question? And what does it do to

 

the credibility of the department? What does it do to presidential power? Should a move like that either be undertaken or declined? You know, if they declined to prosecute Donald Trump for something like obstruction of justice, this will be two times under two administrations for which he's been investigated for that crime and then absolved. Harry Lipman, it feels like the question, and I'm sure it is being asked in both directions, What is the consequence of not prosecuting someone who is so cavalier with state secrets that human intelligence and the kind of intelligence that even a president is only supposed to look at in a secure location was shoved in boxes and based on this great new post reporting carried around in said boxes from hotel room to hotel room?

 

Yeah. So, you know, there's a lot of sentiment out there that says no one's above the law. You must treat him like anyone else if you or I had done that. we would all be prosecuted. That's true. But I think it is naive or inadequate. There always was going to be what Katie just identified as the third inquiry. It will be at the end. But there will be questions, as in the Nixon case, what is in the best interests of the country? Now, a lot of people have come around to the view, and this is mine, that given the brazenness, the continuing injury to the body politic, the characteristic sort of megalomania of it,

 

that the only thing worse than prosecuting him would be not prosecuting him. But that is the inquiry. And I think it potentially involves and properly involves the White House. But I know for certainly that the DOJ under Merrick Garland will first keep everything separate from this national security stuff. Second, go through the standard inquiry under principles of federal prosecution, and then and only then grapple with the unprecedented, very difficult question, what's in the best interests of the country here?

 

It seems appropriate to take a look at what happened in the immediate aftermath of the war. And one of the truly remarkable aspects of the American experience of civil war is that in the spring of 1865, it did not degenerate into a vengeful bloodbath against the losing side. Yes, there were certainly those who wanted to seek retribution against the South, but for the most part, there were no mass trials and executions of Confederate leaders. Jefferson Davis did spend almost two years in prison, and he was formally indicted for treason. But in the end, he was simply released on bail and never brought to trial. In fact, there were no trials at all for anyone for the crime of treason.

 

And the only Confederate official who was executed for war crimes was Henry Wirtz, the commandant of Andersonville. So for the most part, the United States in 1865 stepped away from that moral precipice and followed a more lenient path to reunification. at least at the personal level. Now when you get into the reconstruction of the state governments and the occupation of the South, that's an entirely different story. But we're going to take a look at the personal process of pardons and amnesty for former Confederates and the records that that process created. So we'll start with a little bit of legislative background. From the very beginning of the war, Abraham Lincoln was concerned about national reconciliation.

 

He recognized the need to have a policy in place to bring the southern states back into the national fold if the Union won the war militarily. He realized that in the event that that happened that we were all going to have to live together again as one nation. So Lincoln advocated a policy of leniency toward the secita states to encourage their return to the national fold. And while the moderate Republicans controlled Congress in the early part of the war, at least up until the midterm elections in 1862, they passed two important acts that supported Lincoln's lenient view. These laws sought to distinguish some rebellious acts in support of the Confederacy

 

that were lesser offenses that did not constitute outright treason. The first act was the Act of July 31st, 1861, and this act defines some of these activities as the preventing, hindering, or delaying by force the execution of any law of the United States, the seizing, taking, or possessing by force of any property of the U.S. against the will or contrary to the authority of the federal government, preventing by force, intimidation, or threat any person from holding any public office under the federal authority, and offending persons would be found guilty of a high crime punishable by a $500 to $5,000 fine or imprisonment, but they would not be guilty of treason.

 

The second piece of legislation was the Act of July 17, 1862. This act defined the punishment for treason to be death or imprisonment for five years than a $10,000 fine, and it would be left up to the discretion of the court depending on the circumstances of the case. Up until this time, treason carried an automatic death penalty, but now that was kind of taken off the table and an option was given between death or imprisonment. Punishment for persons engaging in rebellion or insurrection against the authority of the U.S. or giving aid and comfort to any existing rebellion or insurrection would be imprisonment for no more than 10 years and a $10,000 fine.

 

And persons found guilty of such offenses outlined in the act would be barred forever from holding any public office. The act also authorized the president to confiscate the property and assets of rebel officers and also Confederate government officials, state governors, legislators, and court officials in the South. And most importantly, Section 13 of this act authorized the president by proclamation to extend pardon and amnesty to former Confederate citizens. And this is very important because this reinforced the constitutional authority that the president of the United States already had to issue pardons under Article 2, Section 2 of the U.S. Constitution. So armed with this legislative ammunition, Abraham Lincoln issued his first amnesty proclamation on December 8, 1863.

 

The proclamation offered general amnesty and the restoration of property with the exception of slaves to anyone willing to swear an oath to uphold the Constitution, the Union, and the abolition of slavery as mandated by wartime measures passed by Congress. So in other words, they had to accept the Emancipation Proclamation. However, there were certain persons who were excluded from general amnesty, and these included civil or diplomatic officers or agents of the Confederate government. anyone who resigned a judicial post under the United States to aid the rebellion, Confederate military or naval officers above the rank of colonel in the Army or lieutenant in the Navy, former members of Congress who resigned their seats in order to aid the rebellion,

 

officers who resigned their commissions in the U.S. military to aid the rebellion, and anyone treating black soldiers or their officers in any manner other than as legitimate prisoners of war. Once 10% of the voting population of a southern state had taken the oath of allegiance, the population would be allowed to form a new state government that would be guaranteed recognition by the United States. This was Lincoln's famous one-tenth rule. A follow-up proclamation on March 26, 1864, defined further cases in which insurgent enemies were entitled to amnesty. It also excluded persons who were already in military, naval, or civil confinement or custody, and any such prisoners were excluded from amnesty,

 

but they could still apply directly to the President of the United States for clemency, the same as any other incarcerated person. Applications for pardon could be made to any commissioned officer, civil, military, or naval in the service of the United States, or any civil or military officer of a state or territory that was not then in insurrection. Certificates of pardon were allowed to be issued, and the records relating to the oaths of allegiance were to be transferred to the Department of State for safekeeping. And the Secretary of State was designated to maintain a register of amnesty oaths. Well, the Lincoln assassination nearly derailed the pardon process, almost, but not quite.

 

And although President Andrew Johnson at first appeared to be vindictive towards the South in the emotional wake of Lincoln's murder, eventually he ultimately continued Lincoln's policy of leniency. once again vexing congressional radicals. Johnson administration, there were four major proclamations of pardon issued. The first and the main one was issued on May 29, 1865. This proclamation sought to target individuals who did not respond to Lincoln's executive reprieve or else those who continued to engage in rebellion after December of 1863. It continued Lincoln's earlier exemptions and added several others, including individuals who voluntarily left U.S. territory to aid the rebellion, military academy graduates who accepted Confederate commissions,

 

ex-Confederate governors, anyone who engaged in commerce raiding on the high seas or border raids across the border from Canada, owners of southern property worth in excess of $20,000 who supported the rebellion, and oath-takers who had previously accepted amnesty under Lincoln but then broke their oaths. Persons from these excluded categories had to make a special appeal for a pardon directly to the President of the United States. The Proclamation of September 7, 1867, dramatically reduced the number of exemptions from pardon, as well as the number of outstanding applicants who now comprise many of the highest level former Confederates, including the President, the Vice President, the Confederate Cabinet, foreign agents,

 

military officers above the rank of brigadier general, naval officers above the rank of captain and state governors,

 

anyone who committed war crimes against Union prisoners of war, anyone who was already under lawful civil, military, or naval confinement, and anyone who was connected in any way with the Lincoln assassination.

 

The third proclamation of July 4, 1868, extended general amnesty to virtually all remaining participants of the rebellion, except anyone such as Jefferson Davis, who was already under indictment for treason. The most important thing about this proclamation was that it did away with the requirement for taking an oath of allegiance. And then finally, the Christmas Day Proclamation of 1868 offered full and unconditional pardon for the offense of treason against the United States during the late Civil War. So only three and a half years later, after the shooting finally ended, the slate was wiped clean.

 

Charles Duke Tanner started out in Gary, Indiana's youth boxing in Golden Gloves. He turned pro at 18 and was undefeated in the ring. with a right hand timed in perfectly to Duke Tanner. Tanner was on track to be a cruiserweight title contender before it all came crashing down. It's been 16 years since his last fight, and he spent most of that time in federal prison. This call is from Charles Tanner, an inmate at a federal prison. Hey, Duke, how are you? Oh, man, another blessed day, man. Another day closer to coming home. In 2019, he called me from Allenwood Correctional Facility in Pennsylvania. He had already served 14 years for his first offense, a nonviolent drug trafficking charge.

 

There was one other way, a presidential pardon. He submitted a petition to the pardon attorney's office at the Department of Justice.

 

hope and the possibilities of making America great again. There are a lot of people waiting to hear back from the pardon attorney's office. It has more than 14,000 pending petitions. Duke Tanner, to me, was somebody who stood out head and shoulders above so many cases that I receive. Amy Pova helped Tanner file his clemency petition. T for Tanner. After serving nine years for a nonviolent drug crime, she got clemency from President Clinton herself. When she got out, Pova started the Can Do Clemency Foundation, using the knowledge she gathered in the prison law library. I don't think we need to be putting first offenders in prison for life for nonviolent

 

drug offenses. And he had so many accomplishments at a very young age that defined who I felt his character was. probably at the very top of our list of worthy clemency candidates. What were some of the things you were up against? The Office of the Pardon Attorney resides inside the Department of Justice. And our experience is that very few prosecutors who put people in prison are inclined to want to release them. She says this conflict of interest has broken the system. It's kind of a very unfair, biased process where some of the best candidates don't make it to the White House. And frankly, some questionable ones do.

 

Sam Morrison worked in the pardon attorney's office for 13 years. It decides whether to recommend for or against clemency to the president. They don't review these looking for good cases to recommend. They look, they review them looking for a reason to say no. So there are vanishingly few favorable recommendations in a commutation case. A commutation gets you out of prison. A pardon restores your civil rights. Both are forms of presidential clemency. President Obama gave more than 1,700 commutations and 212 pardons, primarily to nonviolent drug offenders. It was the most presidential clemencies in decades. That's a pretty good number. That's a lot. I grant you that.

 

But if you compare it to the size of the federal prison population, it actually isn't all that historically significant. Morrison is in private practice now, submitting petitions to the pardon attorney's office. He says the challenges are made worse by its secrecy. They won't talk to applicants or their attorneys. They won't share the government's views on a case with an applicant or his attorney. That allows them to pretty much say whatever they want in one of these recommendations without any oversight at all. Many of President Trump's clemencies have gone to friends and political allies who never applied through the pardon attorney's office in the first place.

 

That's what made Tanner's case so surprising. My case manager came with the officer and they stopped by my cell. So they like, hey, Tanner, we need to talk to you. And he said, well, you got to go home. You know, the president signed off on you. We got to get you off the complex. He signed off on you to get out of here three hours ago. A little over a year after our first conversation, on October 21st, President Trump signed Tanner's clemency warrant. He walked out of prison that same day. Man, I won't lie. To be honest, it really didn't hit me until I saw my son the following day that I was free.

 

He knows how lucky he is to have a second chance. That embracement and that chance, that second chance to be with my son, I don't think nothing in the world in my life is going to ever top that. I could go win the heavyweight or whatever world title tomorrow or get a billion, and I would not feel better than I felt that day. So why Duke Tanner? The pardon attorney's office declined to comment. We know he was one of five nonviolent offenders serving long sentences who were released that day. It was less than two weeks before the election. This video of Tanner reuniting with his son was used in a campaign ad for President Trump.

 

Thank you, President Trump. Thank you so much. From the bottom of my heart, all praise and glory go to God. Now Tanner is home in Indiana. This was his first time back at the gym where he started his career. Oh, yeah. It's like riding the bike. I started training. I started training Monday with my son and started my diet or whatnot. So I can really hit the gyms and start getting getting it going. According to an ACLU study, Black men are 20 times more likely to get life without parole for nonviolent crimes than whites. Former federal prosecutor Mark Osler thinks clemency is the way to reverse unfair prison

 

sentences from the war on drugs. Clemency has to be part of the measures that we take to address mass incarceration. Our clemency system is broken, and it needs to be fixed. What's the danger of not having a functioning pardon system? The problem with not having clemency work is that things come out of balance. It has to embrace justice and mercy. We need both, and clemency is the vehicle for mercy. Osler sees an opportunity for President-elect Joe Biden. There is a simple fix for clemency. The problem is the evaluation process, and we need to have a clemency board that would review the cases and make recommendations directly to the president.

 

Sam Morrison agrees. What I would recommend that President Biden do is that you take something very much like the pardon office and reconstitute it somewhere else. I actually agree that prosecutors should have a voice in the process. They just shouldn't be the only voice. Tanner is grateful to all the people that helped him beat the odds.

 

He's working to convert this baseball stadium in Gary, Indiana, into a pop-up boxing ring for his return to pro sports next fall. He's got the support of State Senator Eddie Melton. What could a major fight do for Gary? What better places to come and show that we can give it back? Tanner went from a cell in a federal prison to a White House Christmas party in a matter of weeks. His plea to the president? Use your power to let more people out of prison.

 

Thanks for listening to another throwback episode plucked from the archives to give you context for today. If you get value out of the show, we'd appreciate your support at BestOfTheLeft.com/support through our Patreon page or from right inside the Apple Podcast app. So coming to you from far outside the conventional wisdom of Washington, D.C., my name is Jay, and this has been the Best of the Left podcast coming to you twice weekly. Thanks entirely to the members and donors to the show from BestOfTheLeft.com.