#1510 Avoiding Accountability (Transcript)

Air Date 8/31/2022

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JAY TOMLINSON - HOST, BEST OF THE LEFT: Welcome to this episode of the award-winning Best of the Left podcast, in which, as we wait to see if Trump will ever be indicted for any of his many, many, many crimes, we take a look at the long and illustrious history of powerful people avoiding prosecution in the United States. Clips today are from Pitchfork Economics, Democracy Now!, The Majority Report, This Week, Reveal, Cape Up, and MSNBC, with additional members-only clips from the US National Archives and PBS NewsHour.

Welcome to the golden age of white collar crime (with Michael Hobbes) - Pitchfork Economics with Nick Hanauer - Air Date 3-10-20

MICHAEL HOBBES: 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 wanna get the sense of the cat and mouse game. This catch me if you can, chasing criminals across the world, moving money [00:01:00] 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.

NICK HANAUER - HOST, PITCHFORK ECONOMICS: First of all, can you track when you think this new age... You call it the the golden age of impunity, where the very wealthy, very powerful are able to commit really, you point out a lot of financial crimes, but we 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 [00:02:00] back to, if you had a back cast?

MICHAEL HOBBES: 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 digit somewhere, the number of white collar prosecutions.

The easiest way to illustrate this is that, for the savings and loans 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, [00:03:00] what you find is that most of the white collar prosecutions, I'm making air quotes, are actually low level 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.

NICK HANAUER - HOST, PITCHFORK ECONOMICS: 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 white 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.

MICHAEL HOBBES: 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 [00:04:00] 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.

NICK HANAUER - HOST, PITCHFORK ECONOMICS: So it's difficult to track to when, but we know that over time, and I thought that was an [00:05:00] 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 you can, it's actually just really hard drudgery work that takes real human time and capital, purpose, and attention by these agencies, and that's just been wiped out.

MICHAEL HOBBES: 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 gonna 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 [00:06:00] 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 [00:07:00] where they need to be now.

Flint Residents Outraged as Charges Dropped in Fatal Water Scandal That Poisoned Majority-Black City - Democracy Now - Air Date 5-30-22

AMY GOODMAN - HOST, DEMOCRACY 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 Fadwa Hammoud, who helped lead the Flint prosecutions, 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, [00:08:00] 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 cancerous chemical byproducts. Then a deadly outbreak of Legionnaires’ disease, which is caused by a water-borne 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. Nayyirah, let’s start with you. Your response to the throwing out of the conviction [sic] of the governor of Michigan and his officials?

NAYYIRAH SHARIFF: Yes. I mean, this is the second time, for some of these officials, of being charged. And it really feels [00:09:00] like the illusion — like justice is becoming an illusion for Flint residents.

NERMEEN SHAIKH - HOST, DEMOCRACY NOW: Could you talk about — could you also respond to this and speak specifically about the role of Michigan Attorney General Dana Nessel?

NAYYIRAH SHARIFF: 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 [00:10:00] communities within Michigan. There are dozens of cases right now — they’re active cases — that went through a one-person grand jury. So it really feels like there is one 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.

AMY GOODMAN - HOST, DEMOCRACY NOW: Let’s bring Melissa Mays into the conversation. You’re in Flint right now. You and Nayyirah were really the leaders at the time, at the height of the poisoning, whether we’re talking about Legionnaires’ disease or we’re talking about the lead poisoning of children. Melissa, lay out the scope of the problem, what happened in Flint.

MELISSA MAYS: Well, listening to our interviews from six years ago, not a lot has changed. Basically, the state is 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 [00:11:00] 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 is 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 healthcare. 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 [00:12:00] 2,988 now without clean and safe water 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 Nayyirah said, they have a — rich white folk and government have a whole different justice system than the rest of us.

AMY GOODMAN - HOST, DEMOCRACY NOW: Now, Nayyirah, 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 6 to 0 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 [00:13:00] 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.

NAYYIRAH SHARIFF: Yes. Well, you know, like, when the Supreme Court voided 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 seeing someone convicted and going to jail for poisoning 100,000 Flint residents. And then, also, unfortunately, the systems that created Michigan’s emergency management law is still on the books. So, this is something that is going to be ongoing, and we have to continue to fight in [00:14:00] the streets for justice that we deserve.

Obama Requests Immunity for War Criminal George W. Bush - The Majority Report w/ Sam Seder - Air Date 8-22-13

SAM SEDER - HOST, THE MAJORITY REPORT: "The United States Department of Justice requested that George W. Bush, Richard Cheney, Donald Rumsfeld, Colin Powell, Condoleezza Rice, and Paul Wolfowitz be granted procedural immunity in a case that alleged that they planned and waged the Iraq war in violation of international law." This motion was filed in a case wherein, "an Iraqi mother and refugee now living in Jordan, filed a complaint earlier this year in San Francisco federal court, where she alleged that the planning and waging of the war constituted a 'crime of aggression' against Iraq, a legal theory that was used by the Nuremberg Tribunal. 'The DOJ 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 are thus immune from suit,' chief counsel Inder Comar of Comar [00:15:00] Law said."

They are filing this motion pursuant to the Westfall Act Certification of 1988, "which permits the Attorney General, at his or her discretion," in other words, they don't have to do this, "to substitute the United States as a defendant and essentially grant absolute immunity to government employees,"

In the lawsuit, Sundus Saleh alleges that Richard Cheney, Donald Rumsfeld, Paul Wolfowitz began planning for the Iraq war in 1998 through their involvement with the project for the new American century. Once they came to power, she alleges that Cheney, Rumsfield, Wolfowitz convinced other Bush officials to invade Iraq by using 9/11 as an excuse to mislead and scare the American public into supporting a war. She claims that the United States failed to obtain United Nation's approval prior to the invasion, rendering the invasion illegal and an act of impermissible aggression.[00:16:00]

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 good for the Obama administration for letting bygones be bygones.

Obama on Investigating Bush Crimes: "Need to Look Forward" - This Week - Air Date 1-11-09

GEORGE STEPHANOPOULOS - HOST, THIS WEEK: The most popular question on your own website is related to this, on change.gov. It comes from Bob Ferdick 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 wire tapping?"

PRESIDENT BARACK OBAMA: We're still evaluating how we are gonna approach the whole issue of interrogations, detentions, and so forth. And obviously we're gonna 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 [00:17:00] 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 gotta spend all their time looking over their shoulders and and lawyering up.

GEORGE STEPHANOPOULOS - HOST, THIS WEEK: So no 9/11 commission with independent subpoena power.

PRESIDENT BARACK OBAMA: 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 if somebody has blatantly broken the law that they are above the law. But my orientation's gonna be to move forward.

GEORGE STEPHANOPOULOS - HOST, THIS WEEK: 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?

PRESIDENT BARACK OBAMA: What I, 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 interest of the American [00:18:00] people, not to be swayed by my day-to-day politics.

So ultimately he's gonna 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.

How George H.W. Bush's Pardons for Iran-Contra Conspirators Set the Stage for Trump's Impunity - Democracy Now - Air Date 12-4-18

JUAN GONZALEZ - HOST, DEMOCRACY NOW: Greg Grandon, 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, was not fit to be president, and how this affected him.

GREG GRANDIN: 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 the Zapata Oil Company. He was involved with the CIA, which they helped run [00:19:00] logistics in the Bay of Pigs. As head of the CIA, he presided over—the head of CIA in 1976 during the height of Operation Condor, which kind of organized national death squads in Latin America into—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.

AMY GOODMAN - HOST, DEMOCRACY NOW: And when you say Iran-Contra, just if you could expand on that, especially for young people who don’t understand what this was.

GREG GRANDIN: 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. In Central America—

AMY GOODMAN - HOST, DEMOCRACY NOW: In violation of U.S. law.

GREG GRANDIN: In violation of U.S. law, but also it meant—my gesture to it meant that it supported the worst kind of death squaders and assassins and fascists in Central America throughout the 1980s, and Bush deeply involved in that as vice president [00:20:00] and coming out of his work with the CIA. So, my point to the bleeding 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.

JUAN GONZALEZ - HOST, DEMOCRACY NOW: And a key part of that Iran-Contra is that once Bush becomes president, he pardons all the people who were involved with it.

GREG GRANDIN: No, not once he becomes president. When he’s leaving.

JUAN GONZALEZ - HOST, DEMOCRACY NOW: I’m sorry, when he’s leaving, when he’s leaving.

GREG GRANDIN: After he’s defeated, yeah.

JUAN GONZALEZ - HOST, DEMOCRACY NOW: When he’s leaving as president.

GREG GRANDIN: After he’s defeated by Clinton in the—Christmas Eve 1992, he pardons 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.

AMY GOODMAN - HOST, DEMOCRACY NOW: 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 [00:21:00] 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 Caspar Weinberger, former secretary of defense for the Reagan administration, speaking shortly after he was pardoned by George H.W. Bush.

CASPAR WEINBERGER: I am completely confident that I would have been acquitted in a real trial, when I and my real attorneys, Bob Bennett and Carl Rauh, 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.

AMY GOODMAN - HOST, DEMOCRACY NOW: 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.[00:22:00]

GREG GRANDIN: They had their records wiped clean—

AMY GOODMAN - HOST, DEMOCRACY NOW: A lesson for President Trump.

GREG GRANDIN: —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.

AMY GOODMAN - HOST, DEMOCRACY NOW: 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 1980s to overthrow Nicaragua’s Sandinista government, a former cartel leader testified today.”

GREG GRANDIN: Yeah. I might be wrong, but I think they routed that through Manuel Noriega. That’s how it got to the Contras. So it brought together all of the worst elements, but the larger point, it’s all part of overcoming the Vietnam syndrome. It’s all about the executive branch figuring out how it can [00:23:00] reassert and project military power, free from all of this democratic oversight. The Congress had prohibited aid to the Contras, and that was the main prompt that forced Reagan administration to figure out all of—

AMY GOODMAN - HOST, DEMOCRACY NOW: And the main operation run through Vice President George H.W. Bush’s office?

GREG GRANDIN: And Oliver North and an interwar party. Oliver North was the point person. That’s Bush’s legacy.

Pardon Me - Reveal - Air Date 7-6-19

KEN HUGHES: I always try to get past the Watergate break-in as quickly as possible, because it’s just the tip of the iceberg.

AL LETSON - HOST, REVEAL: 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.

KEN HUGHES: Richard Nixon was cursed and blessed with omnipresent taping in the Oval Office and various other White House locations.

AL LETSON - HOST, REVEAL: Nixon’s secret recordings were a gold mine for the House Judiciary Committee, which used some of them to build an obstruction of justice case against the president. But Ken was convinced [00:24:00] he could find even more examples of abuses of power, so when the National Archives released the tape in bulk, he did some digging.

ARCHIVE NEWS CLIP: In fact, the intention being, ha, [crosstalk] -

AL LETSON - HOST, REVEAL: This is conversation 437-19. It’s hard to hear, but it’s a pardon’s bombshell. It’s 1973 and Nixon is talking to White House chief of staff, HR Haldeman. The Watergate coverup 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 f-ing office.”

PRESIDENT RICHARD NIXON: There’s nothing more important doing a job than to keep me in this [beep] office.

AL LETSON - HOST, REVEAL: The ace up 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...”

PRESIDENT RICHARD NIXON: I don’t give up. [beep] What comes out on you-

AL LETSON - HOST, REVEAL: “... what comes out on you. [00:25:00] There’s going to be a total pardon.”

PRESIDENT RICHARD NIXON: … there is going to be a total pardon.

KEN HUGHES: 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. It would’ve been all by itself an impeachable offense.

AL LETSON - HOST, REVEAL: What is Nixon telling his staff and the people that may have committed illegal acts about pardons? What is he talking to them about?

KEN HUGHES: The president was telling his top aides, who were 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.[00:26:00]

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.

AL LETSON - HOST, REVEAL: That’s because this time it’s being talked about in the open. Here’s Trump’s lawyer Rudy Giuliani being interviewed on CNN.

CHRIS CUOMO: You said, “I think this may get cleaned up, this probe, with a few pardons.”

RUDY GULIANI: These things get cleaned up. Ford did it, Reagan did it, Carter did it, Clinton did it, and Bush did it in political investigations.

CHRIS CUOMO: So you’re saying after the probe is over, it may be cleaned up with any pardons.

RUDY GULIANI: If people are unfairly prosecuted.

AL LETSON - HOST, REVEAL: 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.

DAN KOBIL: There had been a vote by the grand jury to characterize Nixon as an unindicted co-conspirator in obstruction of justice.

AL LETSON - HOST, REVEAL: Dan Kobil is a professor of law at [00:27:00] 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.

DAN KOBIL: 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 hand-written document that says that a president can pardon prior to indictment in the federal system.

AL LETSON - HOST, REVEAL: Haig spells out a few options, and he tells Ford that the president can pardon himself or be pardoned by his successor. Ford is surprised by this and for good reason. It’s the first time a US president has ever tested the waters of pardoning himself. [00:28:00] But it never comes to that. Instead, on August 8, 1974:

PRESIDENT RICHARD NIXON: Good evening. This is the 37th time I have spoken to you from this office.

AL LETSON - HOST, REVEAL: Facing possible impeachment, Richard Nixon resigns.

PRESIDENT RICHARD NIXON: 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.

AL LETSON - HOST, REVEAL: Ford becomes president and he’s eager to put Nixon behind him.

PRESIDENT GERALD FORD: My fellow Americans, our long national nightmare is over.

AL LETSON - HOST, REVEAL: He wants to get to work in 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.

PRESIDENT GERALD FORD: Serious [00:29:00] allegations and accusations hang like a sword over our former president’s head.

AL LETSON - HOST, REVEAL: He pardons Nixon.

PRESIDENT GERALD FORD: Through the pardon power conferred upon me be the Constitution, have granted and by these present do grant a full, free, and absolute pardon onto Richard Nixon for all offenses against the United States

AL LETSON - HOST, REVEAL: Years later, as a law professor writing about clemency, Dan saw this move as the most constitutionally significant pardon in US history and he thought, wouldn’t it be cool to ask Ford why in the end he decided to do it.


DAN KOBIL: Good afternoon, President Ford. This is Dan Kobil, professor at Capital Law School.

AL LETSON - HOST, REVEAL: This is the first time this 2001 interview has ever been made public.

PRESIDENT GERALD FORD: Yes, nice talking to you, Dan.

DAN KOBIL: Nice talking to you. Thank you for agreeing to-

AL LETSON - HOST, REVEAL: Ford says when he [00:30:00] first came into office, he wasn’t leaning towards pardoning Nixon. Then came his first presidential press conference on August 28, 1974.

PRESIDENT GERALD FORD: Please sit down. Good afternoon. At the outset, I have a very-

DAN KOBIL: He felt that the country had a number of significant economic problems, foreign policy problems.

ARCHIVE NEWS CLIP: Would you use your pardon authority, if necessary?

DAN KOBIL: And yet the only questions that the press seemed to be interested in, in his view, pertained to what will happen to Richard Nixon.

ARCHIVE NEWS CLIP: May I just follow up on Helen’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 and-

PRESIDENT GERALD FORD: Oh, as I returned from that press conference, where I was convinced that [00:31:00] the only way to solve the problem was to think about granting a pardon.

DAN KOBIL: And that’s your first press conference where you had several pardon questions, evidently.

PRESIDENT GERALD FORD: Many pardon questions.


PRESIDENT GERALD FORD: And so I went back to the Oval Office and as I recall, I asked Phil Buchen-

AL LETSON - HOST, REVEAL: Phil Buchen was a chief White House lawyer.

PRESIDENT GERALD FORD: … 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 felt was necessary, getting Mr. Nixon’s problems off my desk.

DAN KOBIL: So that press conference really triggered your realistic consideration of it right off the bat, huh?

PRESIDENT GERALD FORD: Absolutely. I was dismayed that the press was so preoccupied [00:32:00] with that, that I could visualize that every press conference that followed for the next X number of months would be the same. I thought that was unfortunate from the country’s point of view.

AL LETSON - HOST, REVEAL: 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.

ARCHIVE NEWS CLIP: 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 Richard M. Nixon.

DAN KOBIL: Now you’ve been quoted as calling the pardon decision “the most difficult of my life, ever.”

PRESIDENT GERALD FORD: I had a visceral feeling that the public animosity to [00:33:00] 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.

DAN KOBIL: 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. That was a huge personal loss to Ford, so he got tremendous pushback, I think, for having granted the pardon.

AL LETSON - HOST, REVEAL: Do you think he expected that? It’s such a controversial decision, even looking back now. Did [00:34:00] Ford understand the consequences of that decision?

DAN KOBIL: 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.

AL LETSON - HOST, REVEAL: The outcry wasn’t because of the pardon alone.

ARCHIVE NEWS CLIP: I was criticized that I didn’t get an admission by President Nixon that he was in error and so forth.

AL LETSON - HOST, REVEAL: But Ford didn’t look at it that way.

DAN KOBIL: One of the very interesting personal facts about Ford is [00:35:00] 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.

PRESIDENT GERALD FORD: I have a card in my pocket which I carry with me. Let me try to find it here.

DAN KOBIL: Is that the Burdick case?

PRESIDENT GERALD FORD: The justices found that a pardon, “carries an imputation of guilt, acceptance, a confession of it,” end quote. So whether Nixon agreed to the pardon, the fact that he accepted it is a confession.

DAN KOBIL: 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. [00:36:00] 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?


DAN KOBIL: That’s wonderful. You said that was enough, in other words.

PRESIDENT GERALD FORD: That was enough. With obstruction of justice, that was ample.

Bryan Stevenson on the racial terrorism of lynching - Cape Up - Air Date 4-24-18

JONATHAN CAPEHART - HOST, CAPE UP: 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. Do I have that right?

BRYAN STEVENSON: Yes, that's right. So what we're talking about are lynchings that were designed to [00:37:00] 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 hanged, you'd see other kinds of people hanged, but they weren't trying to terrorize the community. It was [00:38:00] 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-American 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 [00:39:00] reinforce racial hierarchy, to reinforce white supremacy. They were designed to terrorize. These bodies would sometimes, battered bodies, would be dragged through Black communities.

JONATHAN CAPEHART - HOST, CAPE UP: I was gonna ask you about that, because it wasn't just... hanging the person wasn't enough. They were, after hanged, shot, some burned, and as you were about to say, dragged through the streets, and particularly through Black communities.

BRYAN STEVENSON: 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 [00:40:00] loved one. They would insist that it'd 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.

JONATHAN CAPEHART - HOST, CAPE UP: 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 [00:41:00] 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?

BRYAN STEVENSON: 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 [00:42:00] 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.

I make 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 [00:43:00] 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. So we have to talk about it. We have to acknowledge the wrongfulness. 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'd 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 [00:44:00] sometimes and they say, "Mr. Stevenson, I get angry when I hear somebody on TV talking about how we're dealing with a 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 theses lynchings?

Justice Department Weighs Whether Or Not To Prosecute Trump - MSNBC - Air Date 8-29-22

NICOLE WALLACE - HOST, MSNBC: Katie Benner, it felt like every 15 minutes, the New York Times alerted another pretty important [00:45:00] development in the story. Take us through your reporting and then we'll go through some of the other things that the Times reported on over the weekend.

KATIE BENNER: Sure. You know, so we like other publications, we've just been trying to keep up with the pace of filings and the information.

As you mentioned, a judge decided she was inclined to appoint a special master and the Justice Department just said that much of that work has really already been done. So it'll be interesting to see how she rules.

In the meantime, we've seen more developments about how Trump treated information. And inside of the Justice Department, in the piece that I published today, we see that they are really nowhere near to making decision. In the department's own filings, they've said that the investigation is ongoing with the possibility of interviewing more witnesses and taking further investigative steps. But also we know that the career prosecutors doing this investigation have not yet come close to fulfilling their duty to evaluate all of the information that they found, and compare it historically to other cases under the same criminal statutes. Once that is complete -- and I don't even know if they've begun -- but once that's complete, they will make a [00:46:00] recommendation to Merrick Garland as to what to do. And then he'll have to decide.

NICOLE WALLACE - HOST, MSNBC: Katie, it feels like some of the national security aftershocks or ripple effects are now at least in a teeny tiny way public facing. Talk about is there any -- what does it look like inside DOJ with the case which such grave national security implications, but also as you report in your great piece, massive political considerations on the criminal side?

KATIE BENNER: You know, 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 [00:47:00] 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, 'cause 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've 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 decline 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. [00:48:00]

NICOLE WALLACE - HOST, MSNBC: Harry Litman, 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?

HARRY LITMAN: 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 it, 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, [00:49:00] the continuing injury to the body politic, the characteristic sort of megalomania of it, what 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 interest of the country here?

Restoring the Brotherhood of Union: Confederate Pardon and Amnesty Records, 1865-1877 - US National Archives - Air Date 5-21-15

JOHN DEEBEN: 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 blood bath against the losing side.

Yes, there were [00:50:00] 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 the 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 Wirz, the commandant of Andersonville. So for the most part, the United States in 1865 stepped away from that more precipice and followed a more lenient path to a 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 gonna 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 [00:51:00] 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 seceded 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 middle... until the, uh, 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. [00:52:00] 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 17th, 1862. This act defined the punishment for treason to be death or imprisonment for five years and a $10,000 fine. And it would be left up to discretion of the court, depending on the circumstances of the case.

So up until this time trees and 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 rebellious, in rebellion or insurrection against the authority of the U.S. or giving aid and comfort to any existing rebellion or an insurrection would be imprisonment for no more than 10 years and a [00:53:00] $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 a president by proclamation to extend pardon and amnesty to former Confederate citizens. And this is very important because this reinforced the, uh, constitutional authority that the President of the United States already had to issue pardons under Article II Section 2 of the U.S. Constitution.

So armed with this legislative ammunition, Abraham Lincoln issued his first amnesty proclamation in December 8th, 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 [00:54:00] 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 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 1/10th rule. A follow up proclamation on March [00:55:00] 26th, 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 safe keeping. 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 [00:56:00] South in the emotional wake of Lincoln's murder, eventually he ultimately continued Lincoln's policy of leniency. Once again, vexing congressional radicals.

 During the Johnson administration, there were four major proclamations of pardon issued. The first and the main one was issued on May 29th, 1865. This proclamation sought to target individuals who did not respond to Lincoln's executive reprieve or else those who were 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 of 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 pickers who had [00:57:00] previously accepted amnesty under Lincoln, but then broke their oaths. Persons from these excluded categories had to make a special appeal for pardon directly to the President of the United States. The proclamation of September 7th, 1867 dramatically reduced the number of exemptions from pardon as well as the number of outstanding applicants who now comprised 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 4th, 1868, extended general amnesty to virtually all remaining participants of the rebellion, except anyone, such as Jefferson Davis, who was already under indictment [00:58:00] for treason.

Now 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 offensive 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.

The power of presidential pardons - PBS NewsHour - Air Date 12-25-20

FIGHT COMMENTATOR: The battle of Indiana, undefeated Charles "Duke" Tanner.

MICHAEL SCHILLER: Charles "Duke" Tanner started out in Gary, Indiana's youth boxing and Golden Gloves. He turned pro at 18 and was undefeated in the ring.

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.

OPERATOR: This is call from...

CHARLES TANNER: ...Charles Tanner...

OPERATOR: ...an inmate at a federal prison.

MICHAEL SCHILLER: Hey, Duke, how are you?

CHARLES TANNER: Oh, man, another blessed day, man, another day closer [00:59:00] to coming home.

MICHAEL SCHILLER: 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.

CHARLES TANNER: I was found guilty by a jury of five kilos or more of powdered cocaine. They gave me a life sentence for it. I had life without parole. My only way home was in a casket.

MICHAEL SCHILLER: There was one other way: a presidential pardon. He submitted a petition to the Pardon Attorney's Office at the Department of Justice.

CHARLES TANNER: If I could talk to President Trump, just tell him I'm seeking this clemency based off of change, hope, and the possibilities of making America great again.

MICHAEL SCHILLER: There are a lot of people waiting to hear back from the Pardon Attorney's Office. It has more than 14,000 pending petitions.

AMY POVAH: Duke Tanner, to me, was somebody who stood out head and shoulders above so many cases that I receive.

MICHAEL SCHILLER: Amy Povah helped Tanner file his clemency petition.

AMY POVAH: T. for [01:00:00] Tanner.

MICHAEL SCHILLER: After serving nine years for a nonviolent drug crime, she got clemency from President Clinton herself. When she got out, Povah started the CAN-DO Clemency Foundation, using the knowledge she gathered in the prison law library.

AMY POVAH: 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. He was probably at the very top of our list of worthy clemency candidates.

MICHAEL SCHILLER: What were some of the things you were up against?

AMY POVAH: The Office of the Pardon Attorney is — 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.

MICHAEL SCHILLER: She says this conflict of interest has broken the system.

AMY POVAH: It's kind of a very unfair, biased process where some of the best candidates don't make it to the White House [01:01:00] and, frankly, some questionable ones do.

MICHAEL SCHILLER: Sam Morison worked in the Pardon Attorney's Office for 13 years. It decides whether to recommend for or against clemency to the President.

SAM MORISON: 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.

MICHAEL SCHILLER: 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.

SAM MORISON: 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.

MICHAEL SCHILLER: Morison is in private practice now, submitting petitions to the Pardon Attorney's Office. He says the challenges are made [01:02:00] worse by its secrecy.

SAM MORISON: 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.

MICHAEL SCHILLER: Many of President's 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.

CHARLES TANNER: My case manager came with the officer and they stopped by my cell. So, they are 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."

MICHAEL SCHILLER: 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.

CHARLES TANNER: 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.

MICHAEL SCHILLER: He knows how [01:03:00] lucky he is to have a second chance.

CHARLES TANNER: That embracement and that chance, that second chance to be with my son, I don't think nothing in the world is going to — in my life is going to ever top that. I can go win the heavyweight or whatever world title tomorrow or get a billion dollars, and I will not feel better than I felt that day.

MICHAEL SCHILLER: 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.

CHARLES TANNER: Thank you, President Trump. Thank you so much from the bottom of my heart. All praise and glory go to God.

MICHAEL SCHILLER: Now Tanner is home in Indiana. This was his first time back at the gym where he started his career.

CHARLES TANNER: I started training, I started training Monday with my son and started on my diet and whatnot, so I can really hit the gym and start getting it going.

MICHAEL SCHILLER: According [01:04:00] 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.

MARK OSLER: 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.

MICHAEL SCHILLER: What's the danger of not having a functioning pardon system?

MARK OSLER: 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.

MICHAEL SCHILLER: Osler sees an opportunity for President-elect Joe Biden.

MARK OSLER: 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 to make recommendations directly to the president.

MICHAEL SCHILLER: Sam Morison agrees.

SAM MORISON: What I would recommend that President Biden do is that you [01:05:00] 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.

MICHAEL SCHILLER: Tanner is grateful to all the people that helped him beat the odds.

FIGHT COMMENTATOR: And we celebrate, God, you bringing your son home.

MICHAEL SCHILLER: He is 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.

INDIANA STATE SENATOR EDDIE MELTON: What could a major fight do for Gary?

CHARLES TANNER: What better places to come and show that we can give it back?

MICHAEL SCHILLER: 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.

Final comments on the nature of pardons, accountability and hurt feelings

JAY TOMLINSON - HOST, BEST OF THE LEFT: We've just heard clips today, starting with Pitchfork Economics explaining how we got ourselves into the golden age of white collar crime. Democracy, Now! looked at the latest news from the quest for justice in Flint, Michigan. The Majority Report [01:06:00] contemporaneously discussed the Obama administration formally requesting immunity for members of the Bush administration for their war crimes. I also played an excerpt from the famous interview from This Week in which Obama explained his desire to look forward rather than backward in search of crimes to prosecute. Democracy, Now!, around the time of George H.W. Bush's death, discussed his role in supporting brutal violence in South and Central America before pardoning those involved in Iran-Contra. Reveal went back to the Nixon tapes and an interview with Gerald Ford and his rationale that the offering of a pardon was a way of eliciting a confession of guilt. Cape Up spoke with Bryan Stevenson about the unbridled racial terror lynchings in the United States that went completely unchecked and unpunished. And finally, we just heard from MSNBC, earlier this week, discussing the factors being weighed in the decision to prosecute Donald Trump. That's what everyone heard, but members also heard bonus [01:07:00] clips from the U.S. National Archives explaining the pardons that were offered in the wake of the civil war, and the PBS NewsHour looked at the presidential clemency process and how it can sometimes be used for political purposes.

To hear that and have all of our bonus contents delivered seamlessly to the new members-only podcast feed that you'll receive, sign up to support the show at bestoftheleft.com/support or shoot me an email requesting a financial hardship membership, because we don't let a lack of funds stand in the way of hearing more information.

And now to wrap up just a couple more stories of escaping accountability, in a sense. Members heard an in-depth rundown of post-Civil war pardons, but I want to add just a couple more details on Robert E. Lee, the general in charge of the Confederate army, and Jefferson Davis, the President of the Confederacy. Neither were granted a full pardon after the war, and neither had their citizenship restored before their deaths. But, whereas Jefferson Davis actually [01:08:00] remained defiant to the very end, Robert E. Lee signed an oath to the United States seeking a pardon. In the book Robert E. Lee and Me, which, by the way, I highly recommend as a gift for any friends or relatives of yours who may be sucked in by the myth of the lost cause, send that book their way, uh, the book explains Lee's taking the oath this way: "By signing the oath, Lee applied for a pardon from President Andrew Johnson. The U.S. Attorney General, James Speed, wrote that, 'The acceptance of a pardon is a confession of guilt'. Lee might not have believed Speed, but he knew many Southerners did. They would see his oath as evidence that seccession was wrong, yet he took it anyway." And this part of the book is talking about the absolute highlight of Robert E. Lee's life. The most honorable thing he ever did was to [01:09:00] apply for that pardon, as described in that book.

So just like Gerald Ford's reasoning, they saw accepting a pardon as an admission of guilt, which I find interesting because I don't really think that it is seen that way in popular imagination. I certainly always saw it as a way to correct a miscarriage of justice, right? It's like the last backstop where someone with total power can say, This is wrong. The justice system did not come to the right conclusion. You should be pardoned because you were found guilty when that is not actually the case. Apparently there are multiple perspectives on that. Jefferson Davis also saw it somewhat similarly, which is why he never applied for a pardon. So, you know, good on him for sticking to his guns.

He said in 1881, "'Tis been said that I should apply to the United States for a pardon, but repentance must proceed the right of pardon and [01:10:00] I have not repented ". So repentance: sort of another way of admitting guilt, but admitting guilt and being sorry about it. Now, there's a Time article where I read up a little bit on this, "Why Jefferson Davis got his U.S. citizenship back". Interesting, right? It is explained why Jimmy Carter of all people came to be the one to posthumously pardon Jefferson Davis and restore his full citizenship just two years after Gerald Ford had done the same thing for Robert E. Lee. As I said, Lee had signed an oath to the U.S., but didn't have his full citizenship restored. So Gerald Ford took steps on that. Now from the article, it says, "A century later, it wasn't that Americans in the mid 1970s had suddenly become more supportive of the cause that Davis and Lee fought for. In fact, the civil rights and peace movements were in full force. Yet some [01:11:00] contend this period of increased political awareness was related to the movement to restore the citizenship of Confederate leaders. Francis MacDonnell, a professor of history at Southern Virginia University argues in a paper on the pardoning of Lee and Davis that "Their willingness to oppose the federal government because of principle struck a responsive note in a nation disillusioned by Vietnam, Watergate, and the Church Committee hearings. Ultimately the national sense that the government had let down, even betrayed, average Americans helped create a favorable climate for legislation extending clemency". Now, pausing the article for a minute, personally, I find this fascinating, but I can't quite put my finger yet on how I feel about it. My general thinking about all of the avoided accountability throughout this episode is that, as a society, we allow people to avoid accountability [01:12:00] if imposing a punishment would hurt the feelings of white men. Lynch mobs, obviously, right? Nixon supporters: check. Iran-Contra criminals and their supporters: check. The Bush administration war criminals and now Trump: check, check, check. White men supporting those movements, those people, those politicians, all the way through. And they weren't just supported by coalitions led by white guys. They were white guys who threatened, or are threatening right this very minute, to get really mad and potentially commit violence if their leaders were held to account. So, Carter decides to pardon Jefferson Davis because of Vietnam, Watergate, and the Church Committee hearings, according to that historian. Nixon was pardoned, but he was forced from office, which his mostly white and male supporters did not like. The hippies had clearly won the moral argument over Vietnam and our exit from that [01:13:00] war left a mark on the hurt feelings of white guys that would last until at least the John Kerry campaign and the swift boat ads. And then finally the Church Committee hearings, which focused on COINTELPRO, the counterintelligence program run by the FBI that was used to "track, harass, discredit, infiltrate, destroy, and destabilize dissident groups in the United States, targeting the Communist Party, the Socialist Workers Party, the American Indian Movement, those considered part of the New Left, the KKK - good for them - and most acutely Black civil rights and militant Black nationalist groups". So after all those events, one after the other after the other, the tender feelings of white guys must have just been in taters after not getting their exclusive way for just a handful of times for basically the first time in history. And [01:14:00] that is when Carter feels that he needs to pardon Jefferson Davis, the President of the Confederacy, the unapologetic slavery fetishist, because he thinks that will help soothe the wounds of the country, and by "country" I obviously mean White people, because I'm quite certain that pardoning Davis wasn't part of the plan to say soothe the feelings of the Black civil rights groups who'd been targeted by their own country under COINTELPRO. Now, the only caveat to the pardoning of Jefferson Davis is that he really, really didn't want a pardon.

So it could be seen as sort of a clever F.U. to him, to wait until he's been dead about a hundred years and then pardon him when he can't object, which he definitely would have. That's kind of how I like to think of it, but I sincerely doubt that that's how Carter meant it. He's way too nice of a guy for that. So those are my general feelings about why our society tends to let some powerful [01:15:00] people avoid accountability. But as I said, I am not quite sure still how I feel about those pardons in the seventies.

Again, from that article : "Their willingness", meaning Lee, Davis, and the Confederate states, "to oppose the federal government because of principle struck a responsive note in a nation disillusioned by Vietnam, Watergate, and the Church Committee hearings. Ultimately, the national sense that the government had let down, even betrayed, average Americans helped create a favorable climate for legislation extending clemency". I can somewhat see it in the other way around as well. It's not contradictory for instance, to think a person is profoundly wrong in their convictions, but also have some respect for the existence of those convictions. So while pardoning Jefferson Davis seems like an obvious ploy for Democrats to hang on to some portion of the racist to vote that had started trending to the GOP, I don't entirely [01:16:00] disbelieve that the Left, of the seventies, who may have been at their peak of hating the U.S. government at that time, may have started to see the Confederates in a slightly different light, not respect for their terrible, terrible principles, but a sort of respect for principles, in general, and the willingness to act on them. The Time article concludes by mentioning that "Carter used the same principle when he expanded amnesty for Vietnam draft evaders, as he said, at the time, 'I have a historical perspective about this question. I come from the South. I know at the end of the War Between the States there was a sense of forgiveness for those who had not been loyal to our country in the past and this same thing occurred after other wars as well. So, I think it's okay to conclude on the notion that things are complicated. Things are complicated and we should get [01:17:00] comfortable in things being complicated, but it does put a finer point on Donald Trump, which is that at the very least, there is no argument to be made that any of Trump's crimes were committed based on principle.

As always keep the comments coming in at 202-999-3991 or by emailing me to [email protected]. That's going to be it for today. Thanks to everyone for listening. Thanks to Deon Clark and Erin Clayton for their research work for the show and participation in our bonus episodes. Thanks to the Monosyllabic, Transcriptionist Trio, Ben, Ken, and Brian for their volunteer work helping put our transcripts together. Thanks to Amanda Hoffman for all of her work on our social media outlets, activism segments, graphic designing, web mastering, and bonus show co-hosting. And thanks to those who support the show by becoming a member or purchasing gift memberships at bestoftheleft.com/support, through our Patreon page, or from right inside the Apple podcast app. [01:18:00] Membership is how you get instant access to our incredibly good bonus episodes, in addition to there being extra content and no ads in all of our regular episodes, all through your regular podcast player. And if you'd like to continue the discussion, join our Best of the Left Discord community to discuss the show, the news, other podcasts, articles, videos, books, practically anything you like. A link to join is in the show notes.

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 of the show from bestoftheleft.com.

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  • Jay Tomlinson
    published this page in Transcripts 2022-08-31 19:57:21 -0400
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