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I'm joined now by the pardon attorney for President Biden, Liz Oyer. Liz, thanks so much for joining me.
>> Hey Brian, thanks for having me on.
>> So, obviously some big news in the pardon realm here. Donald Trump just last night under the cloak of darkness decided to pardon a bunch of people who were uh involved in the fake elector schemes. Basically, his effort to subvert the 2020 election results. Those include Rudy Giuliani, John Eastman, Mark Meadows, Sydney Powell, Kenneth Chzbro, Christina Bob, Kelly Ward, Jen Ellis, and plenty more. So my my first question here is like I understand how pardons have been used in the past, but when you have a president pardoning people for crimes that he himself is committing, how does that work into the legality of of what we're seeing play out?
>> Well, what has happened here is incredibly bizarre because in fact, these folks are charged with state law crimes. So these are individuals who have been investigated and charged under the laws of various states for interfering with the election results. The president under the constitution has the power only to pardon offenses under federal law. President Trump here appears to be testing the limits of the constitutional pardon power by extending it to crimes under state law. That is absolutely unprecedented. The idea that he can wipe out all of these state investigations and charges of people who were interfering with the 2020 election when they have not been charged with any federal crimes is really truly extraordinary and something that we have never seen before in this country.
Whether he's successful at doing that, doesn't that depend on the state prosecutor's willingness to accept that framing? Like he can do it, but the constitution says that he can't pardon somebody for state crimes. And so, and so basically, we don't have to pretend that that he's able to do that. Can't the state prosecutors just kind of say, "Okay, that's all well and good. It has no constitutional uh uh backing to it, and so we're just going to continue on with our prosecutions."
>> Right. Ultimately, this is an issue that is likely to be decided by state courts and the courts where we have seen these cases prosecuted. The issue is that President Trump's pardon attorney, a guy named Ed Martin, is spinning a legal theory that it appears that the MAGA contingent intends to present to these state courts to try to argue that in fact the president can wipe out these state investigations. Ed Martin is someone who was part of the stop the steel movement himself and could potentially even be within the scope of these very broad pardons. and Martin uh gave an interview with Steve Bannon this morning on Bannon's podcast in which he explains that he believes that there is a theory under which the president actually can grant these broad pardons of state law offenses. So, I think we're probably going to see extensive litigation in different state courts about the actual effect of these pardons. It seems pretty clear and common sense that the president can't do this. But, you know, the world has really turned upside down in terms of the rule of law under President Donald Trump and a Ed Martin is egging him on here to try to expand the pardon power massively.
>> Is there any indication that any of these state ags or state prosecutors are actually facilitating this by saying, "Okay, you did it and so now we'll back down." Like like the point that I was making before is like this requires buyin from people on the other side. It doesn't just it doesn't just happen in a vacuum. Donald Trump can't just say it and then because he's issued his edict, it becomes law. He can manifest it into reality. It requires both parties basically buying into this to this, you know, to this farce really that he has power that he doesn't have. So, have we heard from any state ages or state prosecutors that because of this pardon, uh, they're going to validate his his, you know, imaginary claims?
>> We have not heard that. The states where these prosecutions are taking place include states that have Democratic AGs and governors and we're not uh hearing that there's any buyin for this theory, but in you know courts could could make a different decision on that. However, Donald Trump seems to have gotten accustomed to being able to force his will on other people. Ed Martin has been making statements to the effect that these states would be wise to do President Trump's will. This has actually come up in the context of a case that's not specifically mentioned within the scope of this pardon proclamation, which is the case of Tina Peters in Colorado, who is actually serving a prison sentence for interfering with the election results in that state. And her case has become a flash point for MAGA activists who want to see her out of prison. And Martin seems to be spinning a theory that the president can somehow use his pardon power to get her out of prison. It is not based in law. It's not based in fact. It's just testing the limits of the president's executive power once again in a different context.
>> So, I had opened up the interview by asking about the legality of pardons when it's not just pardoning somebody for for some, you know, random crime that they've been charged with or convicted of. This is a crime that Trump himself is implicated in and and and executed and that these people participated on his behalf. And so is there any legal theory that might suggest how pardons on behalf of crimes that the president himself or herself commits, whether those have the same legal weight as pardons for anything else?
>> I don't think this is really a legal issue so much as an issue of messaging. Donald Trump seems to be sending a clear message here that those who commit crimes in the name of Donald Trump have nothing to worry about. Donald Trump has your back. if you commit a crime that is intended to help Donald Trump's causes, causes that he supports or endorses or or things that help him personally. So, this is a situation where Donald Trump is sending a loud and clear signal that laws are not going to be equally enforced against those who support Trump. This is um another product of Ed Martin who's really occupying this unique role in the Justice Department where he's the pardon attorney doing out mercy to MAGA supporters on the one hand, but he's also the director of weaponization for the Justice Department, which is a new madeup position under Donald Trump, and he is taking the lead in some of these investigations of Donald Trump's political enemies. It's really just another reflection of the extent to which the Justice Department has been politicized to do Donald Trump's bidding under this administration.
>> Is there any challenge that could come about as the result of a president who basically weaponizes the pardon power to allow himself to commit crimes?
>> It's very hard to challenge pardons legally because the pardon power is so broad under the Constitution. It gives the president virtually unlimited discretion to grant pardons to whomever he chooses for any reason. However, one limitation that is clearly written into the constitution is that pardons can only apply to offenses against the United States, which means federal crimes. So, these pardons undoubtedly will be challenged in so far as they purport to pardon crimes under state law. The other thing that I think we need to see more of is demands for accountability from our elected officials. It's very surprising to me that members of Congress on both sides cannot agree on the fact that it is harmful and destructive to see a president using the pardon power in the corrupt self-deing way that Donald Trump has been using it throughout his presidency. He has essentially created a loyaltybased or pay for pay payforplaybased pardon system and that should be offensive to elective representatives on both sides of the aisle. But we're not really seeing the calls for accountability and transparency that I would hope to see from members of Congress on both sides.
you know, if we see something similar to what we saw in 2020, in 2026 or 2028, where all of these people that are Trump acolytes kind of get dispersed into the different states and try and undermine uh the election results there. What kind of an obligation or responsibility do state attorneys general or state prosecutors have to pick up the the the slack here recognizing that these people are, you know, it's baked into the cake that these people are going to get pardoned at the federal level?
>> Yeah, it really puts a a lot of onus on the states to do this type of enforcement and it makes it even harder for them to do it because they know that the president is right there waiting in the wings to undercut their efforts. This is really a power play by Donald Trump that is intended to send the message to the states that he believes that he is the ultimate arbiter of everything related to elections, whether it's a state law matter or a federal matter. And that makes it much harder for the state's attorneys general to do their jobs. It also really emboldens the people across the country who are trying to undercut the rule of law and undercut key democratic safeguards in our country like free and fair elections.
We'll leave it there. Liz Oyer, thank you so much for taking the time.
>> Thanks for having me, Brian.
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