Hi. Sorry. Did I start with you? When you're used to hearing a certain type of commercial, something like this can, well, take you by surprise. That's kind of how it is with the Lexus RX, a vehicle that has continued to defy expectations for over 25 years, from the first luxury vehicle of its kind, to the first hybrid luxury vehicle, to the only plug-in hybrid worthy of the RX name. We understand you want more than the everyday SUV, and isn't being understood an amazing feeling. Experience amazing at your Lexus dealer. [MUSIC] Good evening, and welcome everyone to the Don Lemon Show. I'm so happy that you all are here. Welcome, welcome, welcome everyone. Lemon Live at Five. This is a show where you get to say what you have to say. We listen to you, we read your comments, we have great guests, we have great conversations, and we build our elimination, so you can be a part of it. You can be a lemon head as well. There's a lot to talk about. We had the big interview last night, but with all that happened this week, you might have missed this. The former President Donald Trump was indicted, again, as our thumbnail says, this week, he was indicted again this week for his efforts to overturn his 2020 presidential election loss. Now, on Tuesday, a federal grand jury returned a superseding indictment. We'll talk about what that means. Charging Trump with the same four accounts that he faced in the original indictment, that was last August, conspiracy to defraud the United States conspiracy to obstruct an official proceeding, obstruction of an attempt to obstruct an official proceeding and conspiracy against rights. What does all that means? We've got some legal eagles here to discuss, okay? That's just the beginning of Trump's legal woes though, because this afternoon, the Lincoln Project sent a letter to the Department of Justice of DOJ requesting that Merrick Garland's office open an investigation into Donald Trump to determine if he violated federal law by promising to appoint or support for an appointment, support for appointment, RFK Jr. to a public office in exchange for his endorsement. So, I am so grateful to have both of these people on seriously. One of them I've known forever, the other one I've respected forever, I respect both of them, but very brilliant legal eagles here. Mario Nicholas is a general counsel for the Lincoln Project, right? So perfect person to have on. And Kimberly Whaley is a professor of law and ABC News legal contributor and the author of this new book. It's called Pardon Power, how the pardon system works and why there's some great information in that that we're going to discuss a little bit later on. But thank you both for joining. How are you guys doing? It's a very busy day for a very busy time for the Lincoln Project, Mario. It is, it is. Certainly, it seems it's hard to believe that it's been just over a week since Kamala Harris was nominated, but it feels like it's been a good two or three years. But, you know, so much is happening so fast right now. And I think that's one of the things that we get to talk about right now and we'll talk about is in that week, look at all the legal issues that we've had come up simply because Donald Trump is involved in this election. Yeah, so we're going to talk about the new Jack Smith indictment, the Lincoln Project letter to the DOJ and Trump's potential legal trouble at Arlington National Cemetery. Remember, he pulled that stunt, right? That was a photo op and that's a no-no when it comes to the certain area in Arlington National Cemetery. So I want to get started. I want to play just as a quick breakdown of what's new and different about this superseding indictment this week. Here it is. One indictment, you'll probably recall, charged a broad ranging conspiracy that essentially entailed a whole bunch of different buckets of conduct by Donald Trump, his pressure campaign on Mike Pence, his pressure campaign on the Justice Department, his attempt to pressure state officials, the fake electors scheme. Well, in this new indictment, which is called a superseding indictment and now essentially replaces the old indictment, the part about the Justice Department is out. The part about Mike Pence is out and all we're left with in this superseding indictment is the charges relating to Trump's effort to pressure state and local officials and to submit false slates of electors. Now, if you're wondering why would Jack Smith pair back, cut back his own case, the answer is because of the US Supreme Court's immunity ruling, which came down in July. And in that ruling, the Supreme Court said that many of the things that Donald Trump did while he's in office, including specifically his interactions with DOJ, some of his public communications, likely his interactions with the Vice President, the Supreme Court said those things are likely going to be immune and therefore added this case. And so Jack Smith has now made a tactical decision. I'm not going to fight the battle to keep those things in the case. I'm going to take them out of the case. I'm going to focus on the pressure that Donald Trump put on state and local officials and the fake electors scheme. And I'm going to try to move ahead with those pieces of the case still in place. Okay, Kim, to you first, a quick breakdown on what a superseding indictment is because people are maybe a little bit, you know, without all the legal jargon. That's why I have you here. So, what is, how is this different? Were you surprised by this move? Were you expecting a superseding indictment and even planer than Ellie Honig laid it out? What does this all mean? Yeah, well, so a superseding indictment is just a new another version. So it's the next draft of your paper, so to speak. And did I predict it? Actually, I was on our friend Laura Coates's show, I think the night before, and that was my last sentence. There might be a superseding indictment. I wasn't entirely surprised. I think the expectation would be that he would work with the old one. But as Ellie indicates, I think this thing does two things. The first thing it does is it sends a message. Donald Trump's not off the hook. They didn't back down on the four charges. They didn't strip it down and make it two or make it three or make it one. They're saying, Smith is saying, I am still on the job, and I am not afraid of this, and we're still going after you for all four. But it was actually, Don, I think a masterstroke legally, because what the Supreme Court did is basically direct, they created this multi-tier test, like a layer cake, for what is official conduct and what is unofficial conduct, and if it's official conduct, then the government has to jump over these hoops to overcome these presumptions. And one of the dissenting justices, I think maybe Jackson said, listen, this makes you go piece of evidence by piece of evidence. This is crazy, and that could have taken years. And what he did, I thought it was amazing, he said, oh, we're going to divide this into two. We're going to say, there's candidate, and there's president, and they reframe the entire thing, he reframed it around Donald Trump as a candidate and said, candidates are not exercising official power. And why this was so smart is because the D.C. Circuit, the lower court, in a separate case, it wasn't one that produced the indictment, it was a separate civil action for money damages around January 6, did that very, made that very distinction? And said, if you're a candidate, you're trying to win office, you're not trying to exercise the power of office, and that decision, that D.C. Circuit decision, is untouched by the Supreme Court's reversal. I mean, that's still good law. So I thought on a number of fronts, it's still not out of the woods, they still might have to do this evidence by evidence thing, but I thought it was a very bold and brilliantly legal move, frankly. I'm just wondering, though, considering, I mean, is it going to make a difference as long as they have the same judge there, Mari? I mean, how strong is Jack Smith's case here, you think? Is it weaker given what it took to appease the Supreme Court? Is Donald, the question is, is Donald Trump ever going to face justice? Well, I think there are multiple different questions. I think one of the important pieces to understand is that I think Jack Smith, from the very beginning, really kind of even before the superseding indictment, understood that they needed to focus on a couple of things. That's why you see four charges here as opposed to 30 in places like Georgia. And that's why they said, hey, look, this is what we can prove and go from. I think that as far as that we're looking at here, I think it's important also to note for your viewers, this was put before a new grand jury and just the evidence regarding this was brought. So there's no way for them to go and say, oh, well, they were already tainted by that. This is an untainted grand jury. So that's an important piece about why they did it this way. As far as proving it, I think there's ample proof. I think there's lots of proof. I mean, I think that they do have a strong case. The question is, will he ever see a courtroom because of it? You know, that's going to turn on whether how this election goes. And I think we all know that. If he wins, it's almost a moot point. This entire case will just simply die. If he does not, I mean, I think then we do have the years to go through it piece by piece. And we'll see what the Supreme Court does with the piece by piece. But I think they're setting it up to win those fights and win them going forward because they're saying, hey, look, as a candidate, you, you are an individual. You are not acting as the president of the United States at that point. And one of the reasons you know that is because there are federal laws that say you cannot campaign from, say, the Oval Office or Arlington. But we can get to that later. But you can't use government funds to do that. So we do know that there is actually distinction in law. And I think the Jaxi C. Jack Smith making those arguments and pushing that before when these things eventually get appealed. All right. This is JD Vance responding to what Jack Smith did earlier this week. This said this new indictment. Here he is. The whole thing, but it looks like Jack Smith doing more of what he does, which is filing these absurd lawsuits in an effort to influence the election. I mean, the one thing that I did see, which I felt was just classic lipstick on a pig is, you know, of course, the reason the Supreme Court throughout his lawsuit is because they said it implicated the president's official acts, of course, which the president has immunity and conducting those official acts. And yet Jack Smith tried to redefine Mike Pence as from the vice president to the running made, as if somehow changing those words in an indictment undercuts the fact that Mike Pence is still the sitting vice president and it still directly directly implicates the president's official acts. So I don't think that has changed anything legally. I think it's clearly an effort to try to do more election interference from Jack Smith. He should be ashamed of himself. And it's one of the reasons why we have to win, because he should not be anywhere near power. Kim, does he know what he's talking about? Is he right? Any aspect of what he said? I mean, last time I checked, the Supreme Court didn't throw out Jack Smith's case. It actually just made a ruling in the case regarding immunity and send it back to the lower court. So, I mean, this is a Yale Law School graduate and that he doesn't know the difference between a case actually being dismissed and a case just being remanded. I would say that's number one. And of course, he's making a political argument to Trump supporters that this close to the election thing. This was not filed close to the election and it could have been resolved before the election had the Supreme Court not intervened. And just so people understand, and then I don't know if Mario agrees with this, but the way I see it is the Supreme Court literally rewrote Article II of the Constitution. I mean, they didn't need to do this, first of all, but they literally stepped in and wrote out part of the impeachment clause that says, even if you're impeached for official conduct, you can be prosecuted. It says that in the black and white text of the United States Constitution, and these conservative justices purport to be textualists. They're all running around saying, oh, only the good judges read the plain language. It's the bad progressive judges that read stuff into the Constitution. I mean, the reason this is pushing up against the election has nothing to do with Jack Smith. So on a lot of fronts, I think it's his arguments. We can talk about Mike Pence, but all that Jack Smith is doing is following the directive of the United States Supreme Court to reconsider the case based on this bifurcated idea of official and unofficial conduct. And the court itself noted that Mike Pence was wearing two hats during this. He was wearing one hat as vice president. That is official conduct. And he was wearing another hat as having duties relating to his Senate obligations. And he said they suggested Chief Justice Roberts that that would not be official conduct. So maybe he hasn't read the opinion, Donnie's really busy running around following Kamala Harris and airport hangers. Stalking, as a matter of fact. Mario, you seem like you wanted to say something. Well, I mean, we're talking about a guy who has trouble ordering donuts. So, I mean, let's be honest, you know, his Yale law degree notwithstanding, you know, he's just parroting what he's being told to parrot. Yeah, that's what I was going to say, good grace is a Donald Trump because he's been sinking that campaign since the day that he was put onto the ticket. And so he's trying to do whatever he can. But, you know, just because he says it so is it doesn't mean it so go ahead. Sorry. Sorry. There's a delay. I was going to say, you know, to Kim's point, you know, this isn't something that just got filed recently. This case has been going on forever. You know, the Court of Appeals ruled on this case in February as the team that I was working with was working on the 14th Amendment claim going before the Supreme Court in early February was just when they originally ruled on the immunity claim. And it was the Supreme Court itself that set this way, way, way back by agreeing to it be not pushing it forward as fast as they could have. And then see waiting until the very last moment this summer to issue an opinion. So, if anyone is pushing this into the election period, it's the Supreme Court in the United States. Yeah. Right. Yeah. I think they're slow walking it. Not that I mean, come on. Do you think? I mean, I think it's obviously a slow walking it. But I mean, Kim, you know, as Kim said, she's surprised he doesn't know. I think I would agree. I think he probably knows, but he's just doing it right because it plays to the base. Yes, no? Yeah. Well, sure. I mean, this is this is why these kind of programs are so important to break things down so people can understand. And, you know, I suggest people read the read the decision yourself or the summary of the decision. I mean, there's so much lack of information and misinformation around legal questions that it's very confusing for folks. So, so the answer to this is he will face justice depending on November 5th. Well, I would yeah, but even if it's Kamala Harris, I think there's a possibility that the court will kill this case. Why? Well, because they could find that most of it or the enough of it is official conduct that's protected from criminal scrutiny and or there's evidence. The court said also official conduct can't be in the indictment or can't go before the jury. So it's kind of death by a thousand cuts. And as one of the dissenting justices said, they they left themselves with the quote pre clearance power to to they're kind of the uber prosecutors now they're going to decide at some point whether to allow cases against presidents to go forward. I mean, it's really almost an intrusion into the executive power. It's not their job to decide on indictments. It's not their job to decide on the scope of the law. And so they've just left themselves a tremendous amount of discretion to determine not only this case, but any case that would go would be brought against a former president so long as this is the majority on the court. I'm just getting some information here from the producers and the interview. I'm sending a note right now. I just got a note saying Donald Trump endorses Florida's six week abortion ban. Now, he just said yesterday, do we have that sound bite? If we have that sound bite, roll it, please, if we have it. And if we don't have it, can you please get it? Peter sent it to Nikki, please, because he just said yesterday that he that six weeks was too short. And now he's endorsing six weeks. It seems to me that he's flailing. He doesn't know what to say that I think he's sort of hemmed in on abortion. And he's trying to wiggle his way out because after he said that, he got some real pushback from his base about this this six week, you know, abortion ban. So as we wait for that, I'll ask another question. Did you guys watch the interview last night? And what did you think, Mario, as you watched? Did she help herself? Is it a wash? What did you think? Yeah, I think she helped herself. I think she helped herself a lot. Because the only line of attack that people had on her was, oh, well, she's not doing an interview. Now, I think a lot of people need to understand that we live in a different day and age right now. And you can see that at the at the DNC, where content creators, like yourself, on actually had more people created more views than general media did in that. And so I think, you know, that's incredibly important. It was something like 400 million views from content creators with like 227 of you there. It was crazy. It's kind of weird because we're in this weird place between journalists and content creator, but the content creators were saying, Oh, my God, Dan, we're loving your content. So I said, I guess I'm a content creator. But then the Harris campaign sort of treated me as if I was a journalist. And I don't know, it was just it was bizarre. But I did notice that my content honestly got millions of views. That we can I'm not exaggerating. Once a journalist, always a journalist, right? Well, I guess my point is, I guess my point is it's a different world. And that's what we're really looking at. So those were demanding this, Oh, well, do an interview, do an interview are just not recognizing it's it's a wholly separate world. You know, I mean, I think, you know, I wasn't, I wasn't impressed with Danabash. I think that she she was just simply repeating a lot of attack lines, it seemed like, and then was not really listening to the answers all that well and not being. I have seen her do better before, and I would have wished for better. But I think Harris, I think Vice President Harris answered it well. I think Tim Walz knocked a few questions completely out of the park. And I think they can actually say, Hey, look, we have done the tough questions. We have shown up, we did an hour on television. Now, you know, how they treat that and whether they'll treat this the same as they would at Donald Trump, who, you know, I mean, the questions, the questions from last night were, well, you said this in 2019, but you're saying that, but you're saying something different five years later, after you've been through all this different stuff, and she answers it and they say, but you said this before. I mean, are they going to apply that same test to Donald Trump, who apparently was against an abortion, a six-week abortion man yesterday, but 24 hours later is different. I mean, it can't be that same. It has to be the same standard can't be a double standard. I mean, look, that Donald Trump, if he's going to a six-week abortion ban, he's not interested in getting swing voters. He's not interested in getting women to vote. I mean, I think what Kamala Harris and the Democrats need to do is get more people out to the polls and we can talk about this, the threats that between now and January that could happen around shenanigans and cheating in the counting of votes. I mean, I've come to the conclusion, it needs to be a tsunami for Kamala Harris and some of this, you know, the honeymoon phase, right? People are so jubilant and I think there's a sense on the left that there's hope is good, but people can't just assume, okay, I'll set go home. I think there's a tremendous amount of work to do. And I also work a lot with young people. I didn't watch the interview because I was at a class full of 1Ls and an evening class in law school last night for civil procedure. But, you know, they have questions about Kamala Harris. They do. And they don't get their news on CNN. They get their news on TikTok or on Instagram or on Snapchat. They don't get on X. And they're looking, frankly, for ways to have reliable sources of information, that's my sense of young people. They don't know who to trust. And so the extent to which she can humanize herself and she can make them trust her, I think that's extremely important. And I really hope the campaign is dialing into those 25 and under voters that I really think the Biden team was taking for granted potential. Yeah. And look, I think she is humanizing herself. If you look at social media and the content that the types of interviews that she is doing, besides, you know, the interview, she did last night on cable news. Now, this is him. This is him the other day saying that six weeks was too short. And then there's a new one where he talks about, again, I think supporting the six-week ban. So let's play the first one from earlier in the week. You want abortion to be a states rights issue in Florida, the state that you are a resident of, there's an abortion related amendment on the ballot to overturn the six-week ban in Florida. How are you going to vote on that? Well, I think the six-week is too short. It has to be more time. And so that's, and I've told them that I want more weeks. So you'll vote in favor of the amendment? I'm voting that I am going to be voting that we need more than six weeks. Look, just so you understand. Okay. So he said more than six weeks. And then there's a new one. I don't know if we have, we have the new one play it, but or if we're talking, just throw it in there because I want people to hear. Because it speaks to, you know, again, probably the hypocrisy here and the double standard because the right is not calling Donald Trump out at all on things that where he has sort of changed his stance on, right? Where the so-called flip-flop, where he's flip-flopped on. And for him to, you know, say, well, six weeks is too short. And then, because that's basically saying that he is for a woman's right, right, pretty almost, right? If he's saying it should be six weeks, here's the new one. Let's watch. Or no on Amendment four in Florida. So I think six weeks, you need more time than six weeks. I've disagreed with that right from the early primaries. When I heard about it, I just disagreed with it. At the same time, the Democrats are radical because the nine months is just a ridiculous situation that way you can do an abortion in the ninth month. And, you know, some of the states like Minnesota and other states have it where you can actually execute the baby after birth. And all of that stuff is unacceptable. So I'll be voting no for that reason. Okay. So yesterday was yes. Now today, it's no. And this whole Kim, this whole idea about executed baby, because then that would be what if you could, that's infanticide and that is not legal. It's murder. I mean, it's it's so it's infuriating to me. I have four daughters. I mean, this whole conversation makes me crazy. And a six week ban is a complete and total ban. I mean, people don't know they're pregnant at six weeks. So it's I mean, this conversation, for me, I hear I hear that in the cavalier attitude towards this issue. When, you know, the recent reports, the number of women who cannot get emergency basic medical care to save their reproductive organs, it that since since Dobbs came down, this is a human rights crisis in America. And it disproportionately impacts one gender and it disproportionately impacts low income people of that gender. And why this isn't I mean, maybe I'm biased. This isn't a top campaign election issue. It's stunning to me. But obviously he's, you know, his base won't doesn't care if he flip flops. There his his party's not going to call him out on it. And as I said, earlier, it's obviously, you know, but he's not he's not running around looking for for converts. So Mario might know the numbers better. But but I don't know how he wins this race with that kind of a platform. I don't do you understand what he's saying here? I don't think he understands what he's saying. I think that's the problem. I, you know, so a couple of things I do. I think that the right did push back on him. And that's why he kind of is changing his tune a little bit today. Now, it always does make me laugh a little bit when I do this, they do this post nine month period because I think that they're getting their information from South Park because there was that one episode where Cartman's mom wanted to have like a 40th trimester abortion. And I think that's where they're getting their information from, which maybe maybe JD and his Yale law degree was the one who said, well, you know, this is what we're looking at. But I think that the other piece though, this right, is actually that the Harris campaign has actually been very good on this. And I don't know if you have, either of you have seen the new kind of ad they have running. And it's at least on social media, where it has Donald Trump saying, you know, I own every part of your body, every part of your body. You can try that for you, Mario. And then it goes and it goes through that. I haven't seen that. Let's play it, Mario. And then we'll let you guys weigh on here. Here it is. This has your best interests and has your back. I have your back, I have your heart, and I have every other part of your body. And I have every other part of your body. And I have every other part of your body. And I have every other part of your body. And I have every other part of your body. And I have every other part of your body. And I have every other part of your body. And I have every other part of your body. Wow. Go ahead, Mario. You want to finish? Yeah, I mean, you know, to the extent that we were talking about before about whether the Harris campaign gets in the Harris campaign knows how to get people out to vote in this push this match, it's, I think that answers it. That is one of the most powerful ads I think I've ever seen. And, you know, Lincoln Project, where we pride ourselves on good ads, but all of us just said, wow, when we saw that come out. And it's going to people, you know, exactly the people that Kim was talking about who get the information on TikTok or on Twitter or on Instagram. And so it's hitting those areas that maybe previously campaigns didn't do well on and certainly President Biden wasn't doing as well on. So, you know, I think they are playing this very, very well. Meanwhile, Trump doesn't know exactly what he wants to say or what he can say. And I think he was surprised that the right push back on him on IVF and on what he said yesterday. So, he kind of tried to squeeze himself in today. Does that add infuriating you, Kim? Is it effective, you think? Well, I mean, it's actually not that infuriating infuriating. I think it's really accurate. I mean, I've been saying for a long time for years now, I think one of my first opinion editorials that I wrote for the Baltimore Sun was about, you know, people that want gun rights should also want abortion rights. All of this is about an overbearing government. It's all about the power of governments. You know, when I talk about this, you know, I do this triangle, like this is the monarchy, right? The kings at the top. The democracy you flip it, it's the people at the top and the power, you know, filters down to the elected officials. I don't think people understand. If you give government this kind of power, where are you going to draw the line? You really think it's going to just be around whether you wear a MAGA hat or not. So, I'm glad people are coming out punching on this. I agree with Mario. It's very effective. I don't know what young people think about it. I mean, even, honestly, even women and, you know, girls in under 25, I know a lot of them, don't seem to appreciate the threat that this has on your autonomy and your just your core liberties. The right runs around. Liberty, liberty, liberty. What is more coercive than, you know, government forcing you to become a breeder? Yeah. Well, Mario, you're right, because I'm reading the Washington Post and says Trump's recent statements have infuriated many Christian conservatives who saw a second Trump administration as an opportunity to further limit abortion access by fighting for a national ban and cracking down on abortion pills nationwide. God save Trump from an assassin's bullet. He did not save him to pivot on the issue of abortion and support a policy that leads to killing unborn children in the United States of America, said Jason Rapper, a former state senator from Arkansas and the president of the National Association of Christian Lawmakers. That is why we're hearing today that he is going to vote for six weeks, correct? Yeah. And I think the good news behind that is that they're not understanding the wink and nod that he has, which is, I'm just going to change my mind once I win, which is fine, which is great. I love them putting pressure on him. And I think that's important. If I can, I do want to say one thing that Kim said before that was brilliant, that I don't want to get lost. She said we've got to keep on working at this through January. A lot of people have November 5th circle. And we certainly do. I look at November 5th as like D-Day. You land on the beach, you got to keep on going and going and you got to keep on proceeding until you've actually won the war. And that's not going to be until January. I'll be blunt. The immunity decision, one of the things that scares me about that is that since then you've seen this lawlessness from Trump, just keep on climbing and keep on escalating. And he keeps on doing more things without with a disregard for the law. And I think that if we're not preparing right now to have National Guard protecting voting centers in places like Milwaukee and places like America County and Fulton County in Georgia and Philadelphia and Pittsburgh, then we're planning on election chaos because he will be lawless and he will encourage his followers to be lawless. And we have seen what that does in this country. It is frightening. I mean, it is frightening and considering, look, if the vice president does win, you know, another January 6th is of concern to me, although, you know, he's not going to be standing there and turning over, handing over the keys to the White House, you know what I'm saying? But he still will have a very big platform and a very big vocal constituency who will be active as well. So it is concerning. Speaking of that, let's talk, let's change gears a little bit because this week, Donald Trump appointed Robert F Kennedy Jr. to his White House decision team just a few days after the former Democrat dropped out of the presidential race and endorsed his campaign. Now I have some video of R.K. Jr. joining Trump at a rally. And I want to play it because it was something, you know, really something especially considering Trump and his surrogates repeatedly call RFK a communist throughout the campaign. Watch this. I don't think too many of you people have heard of him. He's very low key. He's a very low key person, but he's highly respected. He is a great person. I've known him for so long. For the past 16 months, Robert F Kennedy Jr. [Applause] [Music] [Music] [Music] [Music] [Music] Hi. Sorry. Did I start with you? When you're used to hearing a certain type of commercial, something like this can, well, take you by surprise. That's kind of how it is with Alexis RX, a vehicle that has continued to defy expectations for over 25 years. From the first luxury vehicle of its kind, to the first hybrid luxury vehicle, to the only plug-in hybrid worthy of the RX name, we understand you want more than the everyday SUV and isn't being understood and amazing feeling. Experience amazing at your Lexus dealer. [Music] [Applause] [Applause] And he deserves it. He deserves it. [Applause] Okay. By the way, the Foo Fighters have asked him to stop using this song, but apparently he's still using it. But I mean, complete with sparklers and everything. And there goes my hero. He has gone from communist to hero. So, Mario, please talk to me about the letter that you sent to the DOJ regarding RFK and his endorsement of Trump. Yeah. So, effectively, we sent a letter to the Department of Justice, in America Garland, telling them to start an investigation into how that endorsement happened. Because it is against federal law for a candidate to promise someone a position in the government, particularly a cabinet position, in exchange for their endorsement. And if you look at the timeline on how this happened, you know, RFK was on the phone in a leaked video with Donald Trump just before the RNC, and they came out during the RNC. And they're talking about, oh, well, there's going to be something big for you, Kennedy. And then, you know, and then Kennedy goes, and he tries to auction himself off to the Harris campaign. In their infinite wisdom, they refused to let him talk to Kamala Harris. She's a prosecutor. Of course, she knew it was against the law. So then he goes back to Trump, and he flies to Florida, and meets with Trump, and with a lot of his top folks to hash out what this agreement is going to look like. I mean, I'm pretty sure they had a Keanu, he had some fava beans, and Trump just said, we broke, whoa. I mean, we know how much he loves, Hannibal Lecter, his idol. So, you know, I'm pretty sure that's exactly what happened. And not only am I pretty sure, but we've heard rumblings from people who were RFK supporters, because a lot of them are just enraged about this. But, you know, RFK, not the smartest guy, probably blabbed a little bit about it with folks. So whether it's a donor or he's got one family member who came out in the Washington Post and said, you know, it offered a cabinet position, that would all be against the law. What we basically said with the Lincoln Project is, hey, look, if it's against the law, we have to call him out for it, and we have to push for it, and we have to push for people to hold him accountable every time he does it. I know. It seems like a lot, because it feels like every day he's doing something, again, that's illegal. But we don't hold him accountable. What happens is you go down this slippery slope, and you build to this place, again, where I worry about the lawlessness building and building, particularly when he thinks he's immune as president, to what it's going to look like on November 6th. I mean, just Pennsylvania is notorious for not getting their votes counted within a day or two. But because of the way that they do it, they don't open up. They don't start certifying until election day itself. It takes time to do millions of them. You can imagine where people January 6th happens on November 6th this year, only it's happening in places like Philadelphia. And the lawlessness will just ramp up over the next two months. That's what we're worried about. So we figured we're just going to call it out with this here and say, you know, you broke the law, it's pretty clear the DOJ needs to do something about it. Kim, weigh in on this scandal. What do you think of it? Well, this is a different statute, but Rob Blagoevich, a former member of Congress from Illinois, went to prison for selling Barack Obama's Senate seat. And this gets to my new book, Donald Trump Commuted His Sentence, let him out of jail early. He was impeached as a result of this, and he's since tried to go back and get a court to allow him to get back on the ballot and able to run for election. So we haven't seen it in the context of a president selling favors. But one of the big questions about the pardon power and this idea of official immunity as Mario indicates, I mean, I think that immunity decision is so problematic for a number of reasons. Don, think about it. You know, the court says that pardons are a core conduct can't even use a pardon in a lawsuit, but you can commit crimes with official power. So if, you know, if you pull out a handgun and you kill someone with your personal handgun, maybe that's unofficial if a president were to do that. Like, I know back in the horse and buggy days when there were muskets. But these days, if it's a concern, it seals seem team six, they're going to have to use official power, which means they're not going to do it unless they're somehow going to get protection. How do you do that? You pardon them. So you take the you take if you have a a miscreant Machiavellian president who's willing to use the power of the office to commit crimes. And you really want to be effective at that. You got a bulletproof and protect the people that are going to execute the official power. How do you do that? You do it with a pardon. And I think this story that, you know, Mario's team has produced this letter just demonstrates that quid pro quo. And that's there that that idea is already there. And there was Rudy Giuliani was peddling pardons. Jared Kushner was was the the pardons are reportedly Donald Trump said pardons were his favorite things when he was last in office, because he there were no it was no accountability for it. Six members of Congress asked him for pardons in connection with January six. So so this pay to play thing is the pardons part of it. But but I think we're seeing it a version of it play out in real time in that clip that you just showed us done. Our poll we have a poll up that says should the DOJ investigate RFK Jr. and Trump over a potential quid pro quo. And enough people I don't think enough of people have weighed in. So guys go in and there and weigh in on the poll and tell me what you think should investigate. I'm sure Mario wants no, I'm sure Kim wants to know as well. By the way, just quickly, which one bothers you the most? Is it the the whale on the roof or is it the bear or which one bothers you? You guys the most, you know, there's a Central Park bear story and then there's the whales. Oh gosh. Yeah. Well, I can I get back to TikTok? I mean, my my my my teenager. Because somehow got in her feed that that but all that was out there wasn't making it into her feed done. It was not, you know, it was like, Oh, RFK is a good person. And maybe this is a series of so I showed her I think it was actually holding up a dead dog. That was the one that really bothered her. Yeah. Yeah. Yeah. Crazy stuff. Okay, let's talk about another controversy because you teased it Mario. I'd like to talk about the Arlington National Cemetery controversy. Remember you said that seems to be a scandal and he breaks a law or does something untoward every single day. According to NPR, two members of Donald Trump's campaign staff had a verbal and physical altercation Monday with an official at Arlington National Cemetery where the former president participated in a replaying ceremony. A source with knowledge of the incident said that the the cemetery official tried to prevent Trump Trump staffers from filming and photographing in a section where recent US casualties are buried. It is against federal law. The source said Arlington officials had made clear that only cemetery staff members would be authorized to take photographs or film in the area known as section 60. And when the cemetery official tried to prevent Trump campaign staff from entering section 60, campaign staff verbally abused and pushed the official aside. That is according to the source. The army, the literal army has subsequently come forward and stated that they stand by the Arlington staff members account. I want to play the campaign video that Trump's team filmed at Arlington. Watch this. 13 great, great people. What a horrible day it was. We didn't lose one person in 18 months. And then they took over that disaster, the leaving of Afghanistan. Why could this put Trump in legal hot water can I don't think it can actually because the this is the the law that's in place here is what's called a regulation. It's actually not coming out of Congress. It comes out of like the executive branch and there's no enforcement mechanism. There's no penalty for violating it. But it is a brown just the sanctity of the this Arlington Cemetery and military cemetery. It's about respect for veterans, respect for the fallen and respect for their families. And this is a person who has called people like John McCain losers. So and you're also there is a statute out there called the Hatch Act where you know as I think Mario indicated earlier you can't you can't campaign from office. But you know obviously Donald Trump's not in office anymore. But it seems like he thinks he is. He maybe he forgot maybe he's you know him standing there. It's no longer president. He's trying to probably create an image of him as president to give people some nostalgia and resuscitate this this notion that he's the strong one and he's the leader that really kind of collapsed after Joe Biden fell moved aside as the Democratic nominee. Mario do you agree that there's probably nothing legally they can do? Are you disagree? Well I mean I know I know that when it comes to the employee she might have been able to do something let's point out again it was a female employee. This campaign has no regard for women whatsoever. That's probably by their polling it's something like 36% women supporting him. But she was too worried about it because of all the crazy lawless people that he has out there. She didn't want to bring charges. I kind of that moving forward as far as what he did in section 60. I mean I think I think him is right although what I do think that people are seeing is again that lawlessness of Donald Trump. Let me share with you just a brief story. I was sitting getting coffee this morning and I looked up and I saw a group of four older white guys sitting around the table having coffee. I guess they do this every Friday and one of them was wearing an airborne you know I want to say with pent airborne hat and I realized that they're just bombasting Trump and then the passing him for going in to Arlington and doing that and they just saying you know can't support it can't see this you know that he would do that. And I mean if you're Donald Trump and you lose an old white guys where's your demographics? You know you're losing your own demographic right now so but I mean I think that's it's that disregard that Kim was talking about not just and in this case not just for the law and for regulations but also for the sanctity of a sanctuary and the sanctity of our heroes. By the way it wasn't John McCain he caught a sucker it was World War One those who died in Europe who he called suckers and losers when he was there he said of John McCain I like you know I like those who don't get caught. I prefer my heroes who aren't cats. Yeah yeah same theme yeah. Yeah and I mean well yeah I mean it's the same thing of all that with him he he has zero regard for for any anyone who is served in in uniform and he said it over and over again and that's why you have the army coming out and saying that that's why you have the veterans of foreign wars who just blasted him over his Medal of Honor comments. I mean it's just thing after again and again and again he denigrates. Well and that's why you have the generals and military members who served in his administration coming out saying that he did say the suckers and loser thing even though losers even though he claims that he didn't. Look you're never going to believe this but as of last night Donald Trump is now claiming that the Arlington scandal was quote a set up. Play this. Pain have put out those videos and photos. Well we have a lot of people you know we have people tick-tock people you know we're leading the internet that was the other thing. We're so far above her on the Internet. But all not hallowed grounds so that they have put out the images of those regulations or I don't know who did it and it could have been them. It could have been the parents. It could have been somebody. It was your campaign's tick-tock that would have put out the campaign. I really don't know anything about it. All I do is I stood there and I said if you'd like to have a picture we can have a picture. If somebody did it this was a setup by the people in the administration that oh Trump is coming to Arlington that looks so bad for us. She's good and he's not Kim. Well I want to tell a little anecdote too I mean just about misinformation and you know people that know a bit about election and voting law are really worried about AI and sort of simulations between now and November and I think he knows that but I was it was last summer I was in the airport with one of my kids and I was talking to a lovely woman from the Midwest. She was there with three generations going to Europe for the summer she's probably in her 70s and we had a nice conversation until we switched to January 6th and she said how upset she was that Democrats stormed the Capitol and stole the election from Donald Trump and she was she was serious she really believed that right so I think Donald Trump understands he puts this stuff out there it goes viral and all of a sudden that didn't happen actually it was planted it was since it was fake it was the Democrats and the framers of the Constitution understood that populism and bad information is a threat to democracy that's why when they had the ratification or the Constitutional Convention and ratified the Constitution they were actually just there to amend the Articles of the Confederation the document kind of the preceding the original indictments right the Constitution was a superseding indictment and they decided not to have just everybody you count the votes they decided to make it a representative government a layer in between because they understood that when people get bad information they make bad decisions and I think just decisions that they're uninformed and I think that clip just shows how dangerous I mean two things number one people need to learn how to sort information when I was a kid you had to learn how to find information you had to go to the card catalog now we need to learn how to sort information that's number one number two as Mario indicates it's not over after November because there's going to be a big question as to whether and this is another show whether we'll see the Republicans in Congress under the 12th amendment they have the choice to resolve a disputed election right I think that's the end game and number three is um to get around that I think people want to hear this at least the groups I talked to we need huge numbers of voters huge huge huge huge numbers of voters so it's so clear who won that these shenanigans these lies these attempts to thwart things to to muck up the system the numbers are just so big that you can't overcome them you know that that's that kind of my my parting thought plus by my book it's out next Monday oh well we're not done yeah stand by we're gonna get to the book a little bit and just a second I just want to read this before we move on to the book um excuse me excuse me a short passage from Politico that piece this week three days ago the Trump campaign held a campaign event at Arlington National Cemetery the idea was to lay a wreath honoring the 13 the 13 members of the US military who were killed during the evacuation of Kabul in 2021 and film a political ad they would distribute the video and attack the vice president uh Harris and president Biden for not showing up for their campaign event which they sought to portray was an established memorial as soon as a video circulated military policy experts I know said right off the bat they were shocked that the campaign had been allowed to hold a campaign event on the grounds of the cemetery and circulate video of it it isn't just unseemly it's against the law how were they allowed to do that that is what they're saying everything about this Arlington story is bananas um the most bananas thing about it I believe though is that they actually planned an event as they to secretly film a fake established memorial event and then claim that Harris refused to attend that is fucking nuts yeah I mean I thought they'd come out and say oh it wasn't a campaign event right I mean that would be a no that's not what they're saying and they're not even saying that they're going total banana pants yeah oh so let's talk about pardon power pardon power how the pardon system works and why you talked a little bit about it actually talked I think quite a lot about it yeah in the discussion that we had and so there's an up on your screen and I'm holding it as well so you argue that any pardon that undermines a principle of accountability before the law particularly self pardons cannot be constitutionally justified um that's interesting to me because Donald Trump is openly mused that if he wins back the White House called pardon himself yeah you know I also think he might have he might have a pardon in Mar-a-Lago and his top drawer to hold in the and you know if if Kamala Harris is president and these cases ultimately go forward I mean he said he would he had that authority and in this moment frankly Don there is no authority saying that there a ban there'd be a ban on self pardons I mean the pardon power is like lots of the Constitution it's really vague it's squishy it's old there's no definitions in it but it has this mythology that okay there's no remnants of monarchies except for the pardon power and the way people perceive the pardon power including the Supreme Court and frankly including counsel for the government in the immunity case at the Supreme Court level everyone just acts like you know this is this kinglike power with no restraints and that's not true as a matter of history actually there were limits on King George's pardon power at the time it made it into the Constitution it's not true as a matter of Supreme Court precedent the court has imposed limits on the pardon power including for example that you can't force a pardon on someone you can't pardon a crime that has not yet been committed and I think under other just logical principles it doesn't it doesn't hold up and it's been tremendously abused starting with George H.W. Bush not so much by Obama I don't think he has a clean record on that one but you know Bill Clinton's pardon mark mark rich went to congressional investigations and even a even a DOJ investigation to see if it was a pay-to-play pardon and I just think we need this is a sort of a corner of the law of this debate that is rarely discussed and not well understood so the book tries to kind of fill in that gap and start this conversation along with these other assaults on our democracy that is so precious and so vulnerable in this moment. Do we need another do we need to have a constitutional convention to to reassess all these things after a Donald Trump MAGA presidency because he tested the bounds of the Constitution right he pushed up against every norm and you know you got the this whole thing about pardons like do we need to like sort of refigure rejigger this is a book discuss that? Well I you know I will quote quote Justice Scalia um who years ago before we even in this moment he said this is not the time in history to have a constitutional convention itself because who knows what we come up with what kind of nonsense we come up with um but I do think there should be a constitutional amendment there's been one um already uh introduced in the House of Representatives to get rid of the immunity case to basically put the Constitution back where it was in May before it came down it's just kind of fixing the brokenness um but that included a ban on self pardons I would expand expand that to include a ban on giving pardons to accomplices and and co-conspirators and criminal enterprises that have now been greenlighted by this immunity um so you know if I think this is a this is a place that there should be an amendments to the Constitution I think we should have an amendment to Constitution to have an affirmative clear right to vote I think that would address a lot of the problems we have and people will say oh that'll never happen but there's been over 11,000 proposed Don amendments to the Constitution 27 of them did make it including the most recent in the 1970s so this is a a moment for Americans um to say to recognize that we do have power and there's power in numbers which is why there's so many efforts to take the vote away from people yeah you you're there's something in here that's about marrow that I was reading yeah I have some recommendations and our friend John Dean who I'm sure you've interviewed many times White House counsel for Richard Nixon did the forward for the book uh and he argues too that under this expansive view of executive power Nixon would have gotten away with all of it Wow um what is the most egregious pardon that you studied oh gosh there's so many of them I would say you know the most egregious ones from the last administration really have to do with the obstruction of justice pardoning Paul Manafort Roger Stone where a federal judge set on the record and I'm paraphrasing that this looks like uh it's to cover up in silence of witness I mean that's really a problem but of course there are a lot of like really reprehensible vile disgusting people that have that were part in not just by Donald Trump but by others and meanwhile um you know 13% 13.6% of the population are people of color um it's a disproportionate number of people in the in the prison system and when it when it comes to exonerations where judges find that people are innocent more than 50% of them go to people of color so I would say if presidents if we're gonna have a pardon powered on it should be used for good it should be used to address these injustices why not use federal money to test everybody who's on on uh death row to to use DNA evidence and get people out of the get-death chambers if they're innocent that is that could happen and the Supreme Court is at held in habeas cases habeas is a way to get out of prison a separate way another way to challenge your conviction has literally said the pardon powers are reason not to make habeas more robust even if you've got proof of your innocence so I would say the pardon power is actually draining our justice system and it's not being used the last point George W. Bush said on his way out of office that that the pardon power is not working that there's 11th hour bids and a frenzy by donors by rich people by people of lobby people with access and he said presidents should come in on their first day of office and announce a policy for pardons that's fair and stick to it and again I'm probably I'm probably editorializing on that but I think that's something that maybe Kamala Harris could pay attention to as a former prosecutor and now is this a list of every single pardon that you know it's it's just it's just a a petiteau as the French would say I was gonna say like my goodness but I do like that you you you mentioned Kim posthumous pardons yeah and a lot of them had to do with race issues so I should say a lot of number of them had to do with it there was a the Tulsa race massacre where folks who pardoned I assume that these are black people are people who are defending that Oklahoma clears black in deadly 1921 race riot that's according to the New York Times but then also Bayard Rustin who was the architect of the march on Washington in 2020 I believe yeah and February of 2020 governor Gavin Newsom pardoned Bayard Rust and gay civil rights leader posthumously and I think that's one that's well deserved and there are a lot of these posthumous ones are as well it's a fascinating book Kim Whaley congratulations thank you so much I appreciate your chatting about it the book is called pardon power how the pardon system works and why it's by Kim Whaley it's out now right no it's out on monday oh monday okay great this is the the preview preview to make sure where can we go can we go to amazon where do we go oh amazon anywhere kimwhaley.com at kimwhaley you can see my address there um anywhere where you buy books and I have I have three that preceded that one on the constitution one on voting one how to think like a lawyer to problem solve and the key is the and why don't because as I tell my students if you understand the why you can understand you can remember the what if we understand why we have this government it becomes your government and you don't need me and smart smarty pants people like mario to tell you what you think you can figure it out yourself we need you I loved reading your books and um and and you coming on when I had my show on sin and I love to leave you always covered them yeah because they made such sense it it explained everything you know and without the you know they have perbaly and people yelling at each other and the cable news good fights you just really cut to the chase mario final parting words not pardon words but final parting words well I mean I think the quid pro quo for me to be on this show was sending me a copy of that book it sounds fascinating so yeah it just shot right to the top of my reading this so I've got another book for you guys to come down New York and look for it in hiding places if only I had a show to interview don lemon who that would be a day you guys do the best thank you so much good luck with your your suit um mario you and the Lincoln project and Kim good luck with everything on the book and thank you guys both I really appreciated you being here was a fascinating conversation and program thanks so much really fun thanks don thank you guys all right we'll see you soon okay everyone thank you so much as you know as always say you got to hit the thumbs up because it affects the algorithm and it really helps us here and I appreciate all of you who have supported independent media throughout this program and actually throughout our our journey here on the lemon nation so thank you so much um I will possibly join you this weekend but we know it is a holiday weekend so I want you all to get out and enjoy yourselves Kim you guys get out enjoy yourself mario you get out enjoy yourself make sure you have lots of barbecue and you know if you're gonna imbibe or you know indulge enjoy do it safely and carefully this is the time to do it it's the end of summer so get it all in all right so um I will see you guys later make sure you pre-order the book um pre-order Kim's book pre-order my book if mario has a book that's going to come out make sure you pre-order that one too and so hit the thumbs up like and subscribe and I'll see you guys soon have a fantastic weekend thanks for joining everybody see you later bye everyone thank you
