Special: President Trump’s pardon power, eight states hold primary elections

ROBERT COSTA: Hello. I’m Robert Costa. And this is the Washington Week Extra , where we pick up online where we left off on the broadcast.

Joining me around the table, TIME Magazine’s Molly Ball, Manu Raju of CNN, and Charlie Savage of The New York Times .

President Trump granted clemency this week to 63-year-old Alice Marie Johnson after Kim Kardashian West came to the White House last week to advocate on her behalf. Johnson had been serving a life sentence without parole for a nonviolent drug conviction. On his way to the G-7 summit the president said there would be more pardons and he’s thinking very seriously about pardoning the late, great boxing – the boxer Muhammad Ali. That said, Ali’s Vietnam War draft-evasion conviction was overturned by the Supreme Court in 1971, as a lawyer for the late boxer pointed out on Friday.

A key question that keeps constitutional experts busy these days: Could President Trump pardon himself? Reporters asked him that question Friday.

PRESIDENT DONALD TRUMP: (From video.) No, no. No, I’m not above the law. I’d never want anybody to be above the law. But the pardons are a very positive thing for a president. I think you see the way I’m using them. And, yes, I do have an absolute right to pardon myself, but I’ll never have to do it because I didn’t do anything wrong.

MR. COSTA: Charlie, leaving that aside, you’ve studied and written books on presidential power. What does it tell us to see a president this early in his first term talking about maybe pardoning himself, using the pardon power at such a rapid rate?

CHARLIE SAVAGE: Well, so “rapid rate” has to be put in context. I mean, he’s pardoned a small number of people. What’s weird about it or what’s notable about it is the capriciousness and the sort of lack of regular order in the way that he’s choosing these people, whether they’re Joe Arpaio or this woman this week. This woman this week having been lobbied for by Kim Kardashian is the sort of key element there, the sort of celebrity nature of it. He’s clearly attracted to a tool of presidential power which is basically unfettered. He’s been frustrated in other respects, and here is a place where really he can do what he wants with the big question of whether pardoning himself is one of those things. But one of the things we’ve learned in the last week or two is that the lawyers advising him for the purpose of the obstruction of justice component in particular of the Mueller probe have been whispering in his ear for the past year that he enjoys really unfettered power over the machinery of federal law enforcement, that he can not even obstruct himself because he basically is justice, that they are just exercising powers that are – he has delegated to them and he can pull back as he sees fit. And so he probably really does believe he can pardon himself because that’s what the lawyers who are willing to work for him are telling him. But the fact is the Justice Department itself at the end of the Nixon administration decided that a president could not self-pardon. We don’t know because no president has ever tried to do it or purported to do it and then been prosecuted. But he keeps throwing that out there as one of the reasons in which it’s just nonsense to think that he could impede an investigation because he could shut it down if he wanted to.

MR. COSTA: Some Trump allies say this is idiosyncratic process. As Charlie was talking about, it’s about celebrity. The president wants to get into the news and show off his power. But I spoke to former House Speaker Newt Gingrich this week, who said that the president is not really doing a celebrity appeal here. He’s trying to send a signal to people who are involved in the Mueller investigation that he could come to the rescue at some point and to remember that.

MANU RAJU: Yeah, no question about it. That’s clearly how things are being interpreted here, things in – you know, there are people who presumably could cooperate and give damaging testimony against the president, not just Paul Manafort but also Michael Cohen. Where is that investigation going? If he eventually faces charges, what will Michael Cohen eventually do? And the way that, you know, he is doing these pardons, as Charlie was mentioning, has been so unusual. It’s just been direct appeals from allies. It has not been going the customary route, typically, which is typically through the Justice Department, and not doing that, and just deciding he wants to pardon, say, Dinesh D’Souza or Joe Arpaio or Scooter Libby based on what he thinks is – what people are saying to him. And perhaps one reason why is to send that message. Now, we don’t know that’s exactly his intention, his motivation, but that clearly seems to be the message.

MR. COSTA: And we hear White House Chief of Staff John Kelly and White House counsel Don McGahn may be opposed to the president going outside of that normal process.

MR. RAJU: Yeah, that’s right, and there’s clearly some apprehension about a president going this far. And the question is, does – if he goes too far and what – how people will decide to check him.

MR. COSTA: What about apprehension about Rod Blagojevich, the former Democratic governor of Illinois, who’s on the radar of the president right now?

MR. RAJU: He is, and we don’t exactly know why. Perhaps because he was a contestant on – he was on The Celebrity Apprentice back in 2010, right before he was convicted on 17 counts stemming from his time in office, where he was engaged in a widespread corruption scheme, including trying to sell Barack Obama’s Senate seat after Barack Obama became president. They had an appointment, it went through him, and this was a major, major corruption scandal. I spent the last week talking to a number of Republicans in the House delegation from Illinois, universally opposed to this idea; strongly, strongly opposed. They have said they have appealed directly to the White House. They have made this case publicly, privately. They think it would be a bad idea because of just how much Blagojevich did incorrectly, did wrong, broke the law. It would send a bad message to other corrupt politicians. They don’t want him to do it. But, you know, he’s serving a 14-year sentence. The question is, does the president decide to commute his sentence, free him, not pardon him? The president seems to be open to that idea.

MR. COSTA: Molly, you’ve reported on Attorney General Jeff Sessions for quite some time and written about him for TIME Magazine and elsewhere. The Sessions angle of the pardons hasn’t really been discussed a lot this week, that the president worked more closely with his son-in-law, Jared Kushner, on his prison reform and commuting sentences emphasis rather than with his own hardline attorney general, who usually does the opposite of Kushner when it comes to these kind of policies.

MOLLY BALL: It is a very interesting dynamic. I mean, Trump and Sessions obviously are not close at this point, but Sessions and his orbit have developed a sort of fatalism where they feel like, well – they don’t think he’ll be – he can be fired at this point because – the time that that was an active threat seems to have passed. But also, he sort of feels like if it’s going to happen it’s going to happen. He doesn’t have any control over it. The president’s still mad at him, still takes these swipes, as recently as I believe last week was trashing Sessions on Twitter, and it’s still this burr in his side. He feels like none of this would be happening if Sessions hadn’t recused himself. Sessions, as he told me a couple months ago, still believes that he did the right thing, the thing that he had to do according to the regulations of the Justice Department, and further feels that he has been a very good soldier in every other way. He has been executing the president’s policies, I think you could argue, more faithfully than any other – anyone else in the Cabinet, and more effectively.

That said – and he has also been a policy activist in a way that’s not necessarily traditional for an attorney general. He’s been intervening in immigration policy with the White House and with the Congress. He’s intervened actively in criminal justice policy, leaning on his former colleagues in the Senate and opposed, as you said, to the softening of criminal justice policies that Jared Kushner and a large, at this point, bipartisan coalition in the House and Senate want to do. And the pardons, as Manu was saying, would normally go through the Justice Department. This isn’t a typical administration, and this has been done much more along the lines of a reality show or a – or a Miss USA competition, where the judge just points and says you.

And so – and as Charlie was saying, in addition to the message Trump may be sending about his ability to arbitrarily dispense justice, it does just seem like a button he likes to push. I think as a businessman he really expected, once he got to the Oval Office, there would be more buttons he could push, and there’s actually not a lot you get to do just all by yourself as president. But in the Constitution there are no limits specified on the president’s pardon power. It is one of the things he is overtly allowed to do unilaterally, and I think he’s kind of having fun with it.

MR. COSTA: All the buttons you can push. The thing that came to mind is the Millennium Falcon from Star Wars – (laughter) – all those different buttons.

MS. BALL: How did that turn out? (Laughs.)

MR. COSTA: Had to see someone walking in there, where are all the buttons for the presidency? (Laughter.)

Another thing we couldn’t even talk about in the main show this week, but it was big news, primary elections this past Tuesday spread across four time zones and eight states, representing the biggest single day of elections until November. There has been a lot of talk of a blue wave for the Democrats this fall, but with the president’s approval ratings pretty steady it’s going to be hard to predict at this point whether the Democrats will be able to take back control of Congress. One trend that does seem to be holding is the number of women running and winning in this election cycle. When you’re on Capitol Hill and they look back at this Tuesday and what happened across the country, what’s the takeaway, the big one-line takeaway, for both parties?

MR. RAJU: Well, Democrats still feel they can take back the House. They believe there’s a very good chance of that. The map is still favoring them pretty significantly. Twenty-three House seats are – the Democrats need to pick up to take back the House; there are 23 Clinton-held seats, that she won in districts that Republicans currency occupy, and seven of those are in California, where there was a primary this past Tuesday. Because of the unique system where only the top two people of any party get into the general election ballot, the Democrats really avoided a disaster in not getting locked out of those seven seats. So there’s a potential of picking up at least a handful, maybe all of those seats in California, depending on how well those candidates perform. So Democrats feel pretty good.

The Republicans know that it’s going to be very challenging to keep the House. They feel much better about their chances in keeping the Senate. Over the last week, seeing things that happened with the Missouri governor’s stepping aside, the Republican governor getting – his corruption scandal there, stepping aside, that helped the Republican candidate in the Senate race there. John McCain not – still holding his seat; because of the rules there, he’s not vacated before the deadline that would create a special election this November. They feel good that that seat will not be on the table.

So I think if you talk to each side, Republicans say we can hold the Senate, Democrats say we can take back the House, and probably both sides acknowledge that Republicans are still favored to keep the Senate.

MR. COSTA: Molly, when you think back to when we were covering 2010, 2014, the Republicans struggled in those midterm years with primaries, conservatives pulling the party to the right. And I was always wondering, in 2018, would we see Senator Bernie Sanders and his coalition pull the Democratic Party to the left and really change the party. Is that happening this year?

MS. BALL: Interestingly, not. There have been some progressive candidates winning, but it is far from across the board and it is – actually, a lot of the candidates that Bernie himself has campaigned for have lost. Many of the candidates that his supporters have rallied behind have lost. And so, I mean, I think –

MR. COSTA: Why?

MS. BALL: First of all, you know, Democrats would be thrilled to have a year like Republicans had in 2010 and 2014. So whether or not, you know, the Tea Party was dividing the Republicans and giving them heart attacks in primaries, they still had a very good year because of all that enthusiasm. But we do see that, for example, in California there was a lot of activist angst about the Democratic establishment meddling in these primaries, trying to put a thumb on the scale, from their perspective trying to make sure that the vote was consolidated around a single Democratic candidate, but also in some instances going against the grassroots. But it turns out – and I think you see this in 2016 as well – the Democratic establishment is simply much more powerful than the Republican establishment, and the liberals wing of the Democratic Party is much weaker than the conservative wing of the Republican Party. Think about 2016. Hillary Clinton was the Democratic establishment. Bernie Sanders was the liberal wing. Who won the primary? It was Hillary Clinton. And that continues to be the composition of the mainline Democratic Party, despite the fact that there are some very loud voices on the far left.

But I do want to go back to your question about women because that, I think, is the biggest theme of these Democratic primaries. The women are winning just across the board. Almost all of the Democratic primaries that have pitted a qualified male against a female candidate, the women are winning, and it’s a really striking trend. Emily’s List, the group that supports women Democratic candidates, has won almost all of their endorsements in Democratic primaries, and they only get involved in competitive primaries. In a lot of cases these women are beating the local establishment, the local Democratic Party, or other Democratic interest groups. It just seems like there is a real sentiment in the Democratic Party this year to nominate women, to get them to the November election. And then we’ll see how they do, but Democratic strategists feel good about the idea that the face of their party in November will be all of these women.

MR. COSTA: You had a thought on that?

MR. RAJU: Yeah. I totally agree. I think that’s – the Democrats feel – I think that, you know, when you look at the key constituency to take back the House, it’s going to go through – for suburban women. They are going to be critical, probably the most critical of any bloc of voters, people – women who may have voted for Trump the first time but don’t like the way he acts personally, are put off by some of the scandals, that Democrats believe they can pick up in those key suburban districts, Republican-held seats. So the Democrats feel better if they have a woman candidate; perhaps they can appeal to those voters in some of those key districts. So that could – that will be the key dynamic going forward.

MR. COSTA: Charlie, final thought. You report daily on the Russia investigation, the law, and politics. And what we didn’t hear from many Democratic candidates – of course they have concerns about President Trump and his conduct and the Russia probe, but we haven’t seen that kind of resistance rally cry about the Russia probe in the Democratic Party. Why do you think that is?

MR. SAVAGE: Well, I think that the calculus among Democratic politicians is that Trump makes the argument against himself for the voters who are receptive to that argument. They don’t need to be out there waving the resistance banner and saying Trump is incompetent or dangerous or whatever because the people who are going to vote on their side at least, by hearing that message, are already spun up. And if they do it too much, they’re just going to spin up the other side and create greater enthusiasm among a right-wing electorate right now that may be a little bit complacent. And so they’re trying to, instead, find affirmative messages so they can not just be the anti-Trump party but sort of count on that to – and his constantly being in the news and putting himself in the news to remind people who don’t like him that they don’t like him all by itself. And so one of the things that they’re actually quite spun up about today, reuniting our earlier conversation about Jeff Sessions the good soldier, is that the Justice Department just took this extraordinary move of siding with the state of Texas and some other red-state plaintiffs in a case that’s attempting once again to destroy the Affordable Care Act, and in particular the single most popular aspect of that, which is the protections for people who have preexisting conditions. This sort of seemingly Quixotic lawsuit was filed against it. You know, they’ve tried over and over, critics of the law, to get the courts to remove it, even though Congress won’t repeal it through voting. And not that much attention was even being paid to that case. All of a sudden the Justice Department, instead of defending the law, yesterday comes in and says, you know what, we agree this should be struck down by the courts, and they’re siding with the plaintiffs. And that suddenly puts this preexisting conditions issue back front and center as a matter of substance the Democrats can hammer on because they know it’s a winning issue for them.

MR. COSTA: Another midterm, another battle over health care. You knew it was coming eventually. It’s June.

That’s it for this edition of the Washington Week Extra . While you’re online, check out the Washington Week­ -ly News Quiz.

I’m Robert Costa. See you next time.