Rachel Barkow: Did Trump and Biden Turn Pardons Into a Corrupt Joke?
Mar 12, 2025
auto_awesome
Rachel Barkow, a law professor at NYU and author of *Justice Abandoned*, dives deep into the controversial use of presidential pardon power under Trump and Biden. She critiques Biden's end-of-term pardons and Trump's pardons for January 6 defendants, highlighting issues of nepotism and favoritism. Barkow also raises alarms about Supreme Court precedents affecting justice and discusses her experience clerking for Justice Antonin Scalia, revealing surprising bipartisan commonalities in their dialogue.
Rachel Barkow discusses the controversial use of presidential pardons by Biden and Trump, raising concerns about accountability and favoritism in clemency.
Barkow criticizes alarming Supreme Court precedents that compromise individual liberty and contribute to systemic issues within the criminal justice system.
The coercive nature of plea bargains is highlighted by Barkow, emphasizing how they may compel innocent individuals to surrender their rights for leniency.
Deep dives
The Presidential Pardon Power and Its Implications
The podcast highlights the critical role and complexities of the presidential pardon power, especially in light of recent high-profile pardons. Rachel Barkow argues that while she supports the idea of pardons as a necessary corrective for harsh punishments, there is concern over their potential abuse. The actions of both President Biden, who pardoned his son Hunter and other family members, and President Trump, who granted pardons to January 6th defendants, raise questions about the motivations behind such decisions. Barkow emphasizes the importance of separating critiques of the pardon power itself from criticisms of how individual presidents exercise that power, noting that flawed use should not undermine the fundamental concept of pardoning.
Concerns Over Supreme Court Precedents
Barkow expresses alarm about certain Supreme Court precedents related to criminal justice that, in her view, compromise the Constitution and individual liberty. She believes these precedents contribute to systemic issues within the criminal justice system, particularly concerning harsh sentencing and mass incarceration. Barkow asserts that many of these rulings, made under the guise of ensuring public safety, actually exacerbate problems rather than alleviate them. She calls for a reevaluation of these precedents, arguing that their negative consequences warrant reconsideration and potentially reversing the decisions that have led to such punitive measures.
Critique of Recent Presidential Pardons
The discussion delves deeper into the implications of recent pardons by Presidents Biden and Trump, with Barkow emphasizing how these actions could embolden selective clemency. She critiques Biden's preemptive pardons for family members, suggesting that they undermine accountability and may signal to future political allies that wrongdoing could be overlooked. The conversation raises a critical point about perceived favoritism: if high-profile individuals can be pardoned without due process, it begs the question of how regular citizens navigate the federal justice system, given their lack of access to similar privileges. Barkow believes that systemic reform is necessary to ensure that the pardon power is administered fairly and not just reserved for the politically connected.
The Myth of Generosity in Biden's Pardon Record
Barkow discusses the misconception surrounding President Biden's portrayal as a generous pardoner, particularly related to his announcements regarding marijuana offenders. She clarifies that despite the headlines, Biden's administration did not significantly reduce the prison population nor address the more profound issues within the federal justice system. The focus was primarily symbolic, and the actual legal framework for securing pardons remains mired in bureaucratic complexities that prevent real change. Barkow argues that true generosity would involve a consistent approach to pardons that benefits a wider range of individuals, not just those with political connections.
Plea Bargaining and Its Coercive Nature
The podcast highlights the coercive nature of plea bargains, which often compel innocent individuals to plead guilty to avoid harsh sentencing. Barkow explains how defendants facing serious charges may surrender their constitutional right to a trial simply to secure a more lenient sentence through a plea deal. This practice raises ethical concerns and calls into question the integrity of the judicial process. By framing plea bargaining as essential for judicial efficiency, the system risks punishing individuals disproportionately and undermines their rights.
The Role of Federalism in Justice
Barkow believes that appreciating the principle of federalism could be a solution to various issues within the justice system. By allowing different jurisdictions to exercise discretion and innovate within their legal frameworks, it could foster better outcomes in criminal justice. This approach encourages competition in legal standards and practices, which could lead to more responsive and equitable justice systems. Barkow argues that the current trend toward nationalizing crime laws has not served the public interest and has led to inconsistencies and disparities in enforcement across the nation.
Barkow and Reason's Billy Binion talked about the importance of the presidential pardon power—which is a controversial topic these days, after former President Joe Biden used it to preemptively pardon Anthony Fauci and members of his own family, and President Donald Trump used it to pardon January 6 defendants, some of whom were convicted of assaulting law enforcement. They also discussed Barkow's view that certain Supreme Court precedents around criminal justice are alarming for anyone who cares about the Constitution and individual liberty. Finally, they chatted about what it was like for her to clerk for Supreme Court Justice Antonin Scalia—as a Democrat.
0:00 — Introduction
1:03 — Presidential pardon power under Biden and Trump
9:35 — Biden's "clumsy" end-of-term pardons
13:03 — Trump's January 6 pardons
18:55 — Historical context for pardon power
24:20 — Philip Esformes' pardon limbo
30:07 — Ford's commission on Vietnam War draft dodgers
33:15 — Pardon power and the death penalty
37:57 — Barkow's new book, Justice Abandoned
41:45 — Coercive plea bargaining
57:17 — "Repeat offenders" in the news
1:05:18 — Barkow's clerkship with Scalia
1:15:42 — The biggest misconception about the Supreme Court
