Pardons & Qualified Immunity: Promoting Justice or Institutionalizing Corruption?
Dec. 5, 2024
Host: Hon. Sam Rohrer
Guest: David New
Note: This transcript is taken from a Stand in the Gap Today program aired on 12/5/24. To listen to the podcast, click HERE.
Disclaimer: While reasonable efforts have been made to provide an accurate transcription, the following is a representation of a mechanical transcription and as such, may not be a word for word transcript. Please listen to the audio version for any questions concerning the following dialogue.
Sam Rohrer: Hello and welcome to this Thursday edition of Stand In the Gap Today. And it’s also our bimonthly emphasis on the Constitution and American history. And again with special guest constitutional attorney David New. Now, four days ago, December 1st, president Joe Biden in his capacity as president of the United States of America issued what the official document from the White House says is a full and unconditional pardon, A full and unconditional pardon to his son Robert Hunter Biden. This pardon has raised cries of opposition from all directions, not just from patriotic and conservative citizens, but also many of the most liberal of the political left, particularly since Joe Biden has been promising for months that he would never ever do such a thing. And since there are many ramifications and implications of this, pardon present and future as a lead headline issue that touches on a wide range of considerations from the law to justice to the constitution to history and the precedent that being set to actual construction of the pardon itself, I’ve decided to engage the matter of this, pardon? And the broader issue of pardons and the associated consideration of immunity, whether qualified or absolute. And we’ll talk about all of these things, the balance of the program, the title I’ve chosen to frame our consideration today is this Pardons and Qualified Immunity Promoting Justice or institutionalizing Corruption. And with that, I welcome in right now, David New David, thanks for being back with me as we will do our best to give some analysis to this big issue here.
David New: Well, so nice to be with you and everyone with us today. Blessings to everyone and it certainly is a very timely subject, that’s for sure.
Sam Rohrer: It sure is. And we won’t be able to cover it all David, but let’s just get into this. If you could share briefly, just briefly the constitutional underpinnings for executive pardons or even what the document itself, but it refers to as the granting of various types of clemency. So it’s a clemency and the pardons, it goes together. But where in the constitution is this cited? And if you can have it there and Frank can read it, that’d be fantastic. And just briefly, if you know, was there one person or a group of people responsible for making this provision a part of the constitution?
David New: Let me read to you. It’s in article two, the section that concerns pardons. It’s Article two, section two and the very first clause, and it’s the very last sentence in the first clause, which says he shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment. So this issue of pardons is a presidential power. It’s probably, it exists. Well, the reason governors, executives normally do have this power, it’s not unusual, it’s very historical. And of course the president being the chief executive of the United States, he or she has that power as well. So it’s not something new or innovative. It was controversial a bit during the Constitutional convention because they felt, some people felt that it could be exploited, which apparently it has been.
Sam Rohrer: In fact, it perhaps has. So ladies and gentlemen, let me just read this to you. Chances are you have not seen an issuance of a pardon. This is not long, it’s only a couple hundred words long, but let me just read to you exactly the pardon as it came from the White House, from the pen of Joe Biden. It says, this executive grant of clemency, Joseph r Biden, Jr. President of the United States of America, to all to whom these presents shall come. Greeting goes on to say, be it known that this day goes on December 1st. Be it known that this day I, Joseph r Biden, Jr. President of the United States, pursuant to my powers under Article two, section two, clause one of the Constitution, have granted unto Robert Hunter Biden a full and unconditional pardon for those offenses against the United States, which he has committed or may have committed or taken part in during the period from January 1st, 2014 through December 1st, 2024, including but not limited to all offenses charged or prosecuted, including any that have resulted in convictions by special counsel David C. Weiss and gives a docket numbers filed in the United States District Court for the District of Delaware and docket, and then the numbers there in the United States District Court for the Central District of California.
Sam Rohrer: Then it concludes with this in testimony whereof, I have hereunto signed my name and caused the pardon to be recorded with the Department of Justice. Then the very bottom line in italics done at the city of Washington this first day of December in the year of our Lord 2024 and of the independence of the United States, the 249th. Now I have a couple notable points there, ladies and gentlemen, I’m just going to give you four that stand out to me and then we’re going to come back in the next segment and I’m going to talk to David about his thoughts. But number one, these are thoughts I had. The pardon was full and unconditional. That is very broad. Number two, it’s for offenses. Doesn’t say crimes, doesn’t say anything. It says for offenses against the United States. And I think that’s key phrase, another key phrase for offenses which Hunter has or may have committed.
Sam Rohrer: That’s very unusual language, but it says, not limited to all offenses charged or prosecuted, charged or prosecuted, including any which have resulted in convictions. And then the fact that it’s retroactive from December 1st, the issuance of the pardon back 10 years to January 1st, 2014. Now here’s just a couple of comments from people. It’s all over the board. Here’s one from the Blaze, hunter Biden’s. Pardon? Threatens America’s legal system. Fox News said this, Biden’s sweeping hunter, pardon at odds with longtime rhetoric on executive power. No one is above the law. CNN Biden faces bipartisan rebuke over sons. Pardon? And magazine says this, the pardon has nothing to do with hunter hunter’s, but the bag man, he’s not the big man. That’s Joe Biden not about Git having a compassion on his son. It’s all about dad protecting actions of espionage treason and more being conducted by the Biden crime family.
Sam Rohrer: Get the idea. Big issue. Lots involved. We’re talking about that. We’ll pick up on this. We come back in just a moment. Alright, well welcome back to the program. Our theme today is this pardons and qualified immunity promoting justice or institutionalizing corruption. And we’re touching off of the Biden. Pardon? The Joe Biden. Pardon? Rather historic for many reasons of his son Hunter. So David, I gave a few thoughts of mine and I read the actual pardon as issued, but I’m going to ask you a few questions here. The retroactive nature of this, pardon? Going back all the way to January 1st, 2014, 10 years, which happens to be the beginning of the Biden family involvement in Ukraine and Burisma, I’m not going to get into detail of our listeners. If you’re listening, if you’re aware of the news, you know what that’s involved in. It’s a money laundering scheme of which Hunter was involved on behalf of the Biden family.
Sam Rohrer: That’s all been a part of the investigation. That’s all caught up in this. Pardon? But it goes through from January 1st, 2014 to December 1st, 2024, which is the date that Joe Biden gave the pardon. That’s why that date is there. But David, a broad length of time is very unusual to me. I think secondly, the fact that Biden granted an immunity from prosecution for offenses didn’t say crimes or convictions, it kind of referred to it. But anyways, and then said, but which he has committed, which obviously saying that he has done some things or may have committed, which is an interesting concept, and to me places him in a class truly above the law that is like, wow. So here’s my question for you first, what provisions David of the pardon in its construction are of greatest concern to you and why?
David New: There are a lot of features of this. Pardon? Pardons basically evolved when a president looks at issuing a pardon, he or she is interested in that there’s a public interest factor within pardons a public interest. And it usually means that something is unfair, something has happened even though this person is guilty of criminal behavior. Sometimes in the process of the law, things can get carried, carried away too far. There needs to be an escape valve so that even though this person is guilty of crime, there are mitigating circumstances, mitigating factors. And there needs to be a concern that yes, we know you did this, this is wrong, you admit this, but nevertheless this particular feature of your punishment is unfair. And so we’re going to give an escape from that. So there is a public interest, the danger here is enormous. If Biden had never opened up his mouth and said, I will not pardon him, this whole thing would be seen in a different setting. His problem is that he repeatedly said on more than one occasion, he will not pardon his son. This is bad. It would’ve been much better if he just said nothing. He says, he could have said, I will cross that bridge when I get to it. Or he could have just said, no comment or just avoid. But it’s when he says he won’t do it and then turns around and does it, that gives you a very sour taste in your mouth.
Sam Rohrer: I think that is part of the saying on the political left. I think that’s part of their issue would go to the heart of what you’re saying because it’s a complete flip of what he has been saying, caught them off guard. And so it’s kind of like, alright, everybody’s kind of recoiling. So yes, I agree that exacerbated it, but I think even in the way the thing is written, David, it’s a problem. For instance, here’s this one. Many people are considering and some are reporting that Biden’s, pardon is limited to hunter’s tax evasion for which he pled guilty and gun violations. But the reason I read the pardon was that it doesn’t mention that specifically it talks about some allegations and charges from the Weiss investigation of which he’s been apart. But to me it goes way beyond when it says full and unconditional and it says then for offenses which he has committed or may have committed. To me that raises the question of it looks an awful lot like immunity or unlimited immunity and not qualified to a specific act. So here’s a question I would have for you. Would you define and describe immunity or immunity from prosecution and the legal understanding of what is referred to as qualified immunity?
David New: I wouldn’t mix in the immunity feature in this conversation here. I’d shy away from that.
Sam Rohrer: Okay, go ahead and go ahead and define that. Why don’t they go together?
David New: Well, because immunity is, it is just saying that the law doesn’t apply to you.
David New: Immunity is not a legal defense. It’s saying that this law does not apply to you are immune. A pardon is not saying that when you get a pardon, your criminal record stands, you don’t lose it. Now a pardon also restores civil rights. A pardon can involve a commutation of the sentence. So if you were sentenced to 10 years in prison, you served five, you can be commuted from the remaining five. A pardon can be conditional. In other words, if you do something to violate your pardon, it restores the original sentence in a commutation, for example. Also a pardon can be for crimes committed and for crimes that we don’t know you’ve committed. That is not unusual, that is not inappropriate. It does happen.
Speaker 3: Okay?
David New: The other thing is pardons can be rejected by people. There are people in the past who have rejected a pardon because they won’t admit they committed a crime to begin with. That has happened before.
Sam Rohrer: Well that’s interesting. So are you saying that Hunter has to admit that he is guilty of a whole range of things before the pardon is applied to him?
David New: No, I’m talking about not in his case. He admits he committed the crime.
Sam Rohrer: Okay.
David New: No, I’m talking about people who say, look, I never committed this crime.
Sam Rohrer: Gotcha.
David New: I am not guilty of criminal behavior period. And I reject this. Pardon?
Sam Rohrer: Okay,
David New: Alright. That’s happened.
Sam Rohrer: Okay, now and I think that makes sense because as long as the discussion is regarding tax evasion, he’s pled guilty to that or the gun, he’s pled guilty to that. But the part that I think is of concern to many people, David, is the fact of this, pardon? Being granted to those things which have been committed or may have been committed, not even alleged things that are yet to potentially come forward for which he is granting a pardon. That’s the part that to me, smells like immunity.
David New: Okay, I see what you’re looking at. But basically pardons do allow people to be forgiven of criminal behavior that we know of and criminal behavior that we don’t know of, okay? It does involve people who we don’t know everything you’ve done. But here’s the pardon,
Sam Rohrer: Alright, now for you, you raised the issue with me personally and all of that about the fact of immunity. So let’s make that distinction. Let’s move to immunity and what is referred to as qualified immunity. What is qualified immunity? How has it been intended? And perhaps how successful has it actually been used in the past as we change kind of directions here?
David New: The Supreme Court has created this doctrine of qualified immunity to give governmental officials leeway to make reasonable mistakes, especially in a tense or dangerous situation, requiring quick thinking and to be able to do this without facing a lengthy litigation owner’s discovery or financial ruin. So the Supreme Court has made this doctrine of qualified immunity so that every public employee or policeman, for example, would be ones who have qualified immunity. They can rest assured that even if they make a mistake at some level in the exercise of their office, they cannot be hauled into court and ruin financially. But it not only applies to police, but it applies to mayors, it applies to all kinds of government officials, mayors, city managers. It can apply to university and school officials, sometimes prosecutors and judges, people who work for child productive services. And it is a very powerful document because for about 59% of all qualified immunity cases, the government employee wins only about 24% does the person suing the government employee wins. So if you got a qualified immunity, your chances of prevailing are very, very good.
Sam Rohrer: Okay? And again, looking at this immunity, basically give me a definition of immunity again. So we have that in our minds.
David New: Let me read to you what Justice Jackson had to say. She’s not one of my favorites at all. When she went before the United States said it and said she didn’t know what a woman was and the whole world heard that, and I don’t know, just unbelievable.
Sam Rohrer: All right, David, just because we’re in the break, just hold that when we come back, I’ll have you read that and then we will move into a further consideration of immunity. Absolute immunity, that’s a term we need to put out there. And ladies and gentlemen, we’ll bring in the application of this as it connects to President-elect Donald Trump. Alright, now we will pull all these pieces together. We’re going to do that in the next segment. Stay with it. We’ll be right back. Okay, David, why don’t you just pick up where you left off and give the official definition of immunity before we move into absolute immunity and charges against Trump and so forth. So if you could do that, please.
David New: Very quickly, by the way, in the pardon clause in the Constitution, it talks about reprieves, a reprieve, cancels or postpones punishment. That’s what a reprieve is, that’s what it’s referring to in Article two, section two. All right, now, immunity Justice Jackson of course who’s a liberal, and I don’t agree with her in many areas, but she had a very interesting comment in a case that was very controversial, still is, that was issued on July 1st of this year, Trump versus United States. This is where the Supreme Court gave absolute immunity to former President Trump for whatever crimes he may have committed. Now this is what she said about immunity, which I found very good. Thus being immune is not like having a defense under the law. Rather it means that the law does not apply to the immunized person in the first place. So you see the difference when it means that you have immunity. It’s really not a legal defense for you so much as saying that this law does not apply to you at all. That’s what the difference is. That’s how immunity differs from other kinds of things.
Sam Rohrer: Okay? And that’s excellent. And ladies and gentlemen, the thought that comes to my mind, David, will be like this. We’re talking about American law, the American constitution justice system, the laws of this land, okay? It has no bearing, nor can it touch a citizen of Canada or Uganda. They are effectively in that sense, immune. Our law doesn’t apply to them. That’s basically what you’re saying. That’s another way to look at it, right?
David New: Yes,
Sam Rohrer: Yes.
David New: Excellent. In fact, okay, go ahead.
Sam Rohrer: Okay, alright, well let’s go on. When it comes to the provision, ladies and gentlemen, under the law of immunity, we talked about just referred briefly, qualified immunity, unconditional immunity, absolute immunity. If we just talked about that, this extension of an official pardon or a granting of clemency becomes, all of these things are a matter of justice. How justice is administered, potentially depending, could be potential injustice. It could be used as a coverup to prevent a legitimate investigation. In the case of a hunter as an example, I’m talking about a pardon at this point. Could be for instance, they get out of jail, free pass and all this depends in my opinion. And David, I’ll ask you for your thoughts as well on the character and the nature of the person granting the pardon. So if the person, the governor, the president granting having a power to grant a pardon as an example, if they are bound by the law and uphold in every way justice, then the granting of a pardon could in fact be an extension of legitimate compassion or facts have changed after a long period of time, whatever that may be the basis of the pardon.
Sam Rohrer: But on the other hand, if the matter of the person’s character is that I have an opportunity to use this thing called a pardon as a tool, well then that’s how political system and the government system can become, as we’ve heard the term weaponized. It can become a political tool, a tool for intimidation, for coverup, for punishment, coercion on one hand, or I going to say coverup or an institutionalization of corruption perhaps in the case of hunter. So it depends on, I’m going to say the character of the person administering it. And you can go either way with this provision of the law. That’s the pardon piece of it. We’ve separated what that is from immunity. But David, let’s bring it back in now and talk about this matter of immunity as regards president-elect Trump because the matter of the weaponization of government and the justice Department against individuals and the discussion of immunity actually precedes this Biden, pardon? It goes directly to a case regarding absolute immunity regarding Trump and you referred to it. So now pull that up again. What are the basic facts of that case all about that you cited, I think was July 1st or whatever. So lay that on the table. How’s that tie in here?
David New: Yes, the Trump case is the one that’s very upsetting. I don’t like the court decision that the court made in Trump versus United States. I don’t like the general direction they took. It is an area of deep concern for me as much as I don’t like what happened to Donald Trump and how they went after him At the same time, I don’t like this case. And the decision was issued on July 1st, 2024, and the opening sentences from January, 2017 until January, 2021, Donald Trump was president of the United States in August of 2023. A federal grand jury indicted Trump on four counts of conduct during his presidency. So this case only applies to former presidents, and it’s the first case of first hearing. It’s never been, there’s no precedent to this case. It’s the first of its kind and it’s just a lousy case. I understand what they were doing, but I don’t like it.
David New: He’s accused of various things. Number one, there are five parts to it that he knowingly made false claims about the election to get state legislatures and election officials to change their electoral vote. Trump also organized fraudulent state of electors and several targeted states causing these fraudulent electors. These are the electoral college people to transmit their false certifications to the vice president. So Trump has been charged with doing that, that he knows that these people were fraudulent and they did not validly represent the vote of their people. That was the second one. The third one was sending letters falsely claiming that the Justice Department identified significant concerns about the presidential election outcome, when in fact the Justice Department had not. So these are some of the charges. So he now is charged and the Supreme Court held this. This is the key paragraph, I’ll read it to you.
David New: And it is kind of scary because it almost opens up all kinds of bad things under our constitutional structure of separation. Separated powers the nature of presidential power entities. A former president has absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all of his official acts. There is no immunity for unofficial acts. So what are they saying? The support is saying when the president makes an official action pursuant to his office as president, he gets an absolute immunity. The problem is defining the difference between an official act of a president and an unofficial act as a president. The case is very bad in this area. That’s one of the problems with this case. So for example,
Sam Rohrer: Okay, let me ask this question here. Now obviously I think most people listening know about a lot of those charges against Donald Trump. That’s all been in the news and all that kind of thing. But based on your reading, and you and I haven’t talked about this before, but based on your reading of that case, do you think that that case could reach over and apply to Joe Biden in anything that he has done in these last four years?
David New: This is the irony of ironies. President Trump, should he try to go after President Biden is going to be facing Trump versus United States. So even if Biden is committing all these crimes, Biden is going to use Trump versus United States. The Supreme Court decision to say I have absolute immunity from everything I did.
Sam Rohrer: And I wonder, David, if the court that had to have thought this kind of thing out, I mean the potential, as you say, that ruling is so broad, how do you know the difference between official or unofficial? But to say you almost opened up the door for go and experiment with whatever you want to as president, step wherever you want, do whatever you want, like a Biden and the whole crime family situation as an example. Because you could say, well, I had to do it because it was a part of my official. I mean, I agree with what you are saying that ruling is really potentially dangerous,
David New: But you see they’re right up to a point because a president should have immunity, absolute immunity. The other thing, I don’t like the word absolute. I would’ve preferred maybe just immunity and not absolute. And I would’ve given a legal test for when it applies, when it doesn’t apply. And they really didn’t do that here.
Sam Rohrer: Now. They didn’t. And ladies and gentlemen, that’s why as we talked this three, it’d say this is gobbly gook, but this is an aspect of the law. Words mean things always and they really mean things in law. And so the difference between immunity, qualified immunity, absolute immunity makes all the difference in the world as an example. We come back, we’ll conclude with some concluding thoughts on this subject. Well, as we go into our final segment, again, just a reminder that all of these programs, and this is an example of one here right now where for instance, I quoted the entirety of the Biden. Pardon? Alright, there’s no way you could write that down. But you can go to our website, stand the gap radio.com or on our app Stand in the Gap. And when you bring up this program from today, you can also access the transcript.
Sam Rohrer: And in that then you can find all of the additional comments, both what David read that portion from the constitution as well as what I read and we’ve talked about that is an advantage of having the transcript available. And then you can read and actually listen along again for all of these things that we present where there is value to you, please assume because it would be correct that they would be valuable to other people. And you have friends, all of you do. I know we all have friends we hope, but friends like to be helped by other friends. So if information like this here on this program today, Monday of this week as an example, we dealt with also the matter of forgiveness. The power of forgiveness. And touched on how each of us approaching this Thanksgiving, Christmas season should consider the great power of forgiveness because we all struggle with that, do we not?
Sam Rohrer: I mean, how many people are divided at odds with some family member or some others? And it could be a whole host of things, things regarding the election, things regarding health or who knows what, but the power of what the Bible says about forgiving, that was on Monday. So all of these things, these issues for which we talk are all valuable. We pray carefully over what we discuss, that it would be biblical and it would be practical. And again, so much often is given. That’s the reason that we’ve gone to the effort of putting the transcript up and having it available. So be aware of that and then share it again with a friend. Also, we’re in this month of December, we think of Christmas as gift giving time. And it is absolutely, it’s nice to receive gifts and obviously the most important gift we received is the gift of Jesus Christ that can redeem ourselves, our lives.
Sam Rohrer: And I hope that you have taken that gift. And then in thinking about this act of giving more blessed to give than to receive, think about what we can give to others in that process. Do not overlook this program and this ministry. If God were to lead you, factor us into your Christmas giving, your year end giving. It’s very critical. It’s very important. Without people participating financially and in prayer, this program could not exist. It could not continue. So you can be a real integral part of that. I just put that before you as a thought. As we now move into this last segment. David, a quick question here for you. We’ve been talking about the immunity aspect of Trump versus the United States, and you quoted that immunity was granted, which we’ll have application to Trump, but also have application to Biden. And we have that discussion in the last segment and we’re not connecting directly the Biden, pardon with the immunity, but these things, they’re floating together. So we tried to present them because both out there and connect them where they are. But let me just ask you this, to what extent do you think that Biden and his pardon and we’ve talked about that and the breadth of it, all of that will impact Donald Trump and what he may or may not do?
David New: First of all, I like what you said about forgiveness, what you said about what you did on the Monday program concerning forgiveness, because presidential pardons have a biblical basis for them, and that is forgiveness. So it’s in the same stream, ladies and gentlemen, this again is showing the influence of scripture on the Constitution. Again, I want to clarify that immunity and pardons are not the same creature. Pardons, we know you committed crimes or we believe you’ve committed crimes and there’s criminal action involved here. So it involves forgiveness, immunity does not. Immunity says the law does not apply to you here at all. So we’re not forgiving of anything. We’re just saying that this law, this criminal statute cannot be applied to you. So they’re very different creatures. Now what’s going to happen? There are speculation that President Biden is going to start giving up more pardons because the Trump, some people in the Trump campaigns have come up with an enemy’s list of people they’re going to go after, and Biden may want to insulate them from future attacks. What’s the Elizabeth, the one from Montana who went against Biden, who went against Trump a lot? What’s her name? That was part of the campaign for president, for Sister Kamala. You know who I’m talking about, the one I talked about before we went on the air?
Sam Rohrer: Ah, something slipped my mind too. Just go ahead with it. Just jump
David New: In a senior moment. Okay, well anyway, so Biden could be giving up more pardons for people who oppose Trump before now Trump, he’s getting ready to give out lots of pardons. He says he is going to pardon a lot of these January 6th people. So pardons are going to become a bigger thing now. And I wish the president and all of his whole team would not go forward with all these revenge business. They say when you go after revenge, you better dig two graves. One for the person you’re after, one for yourself. It’s a bad move. And that’s not what the people of this country voted for. President Trump they wanted from him is to go after all kinds of revenge against other people. Don’t do that. That’s a big mistake. Do what the country needs, fix the border, fix the economy, try to bring peace to Ukraine. Do those things and forget about all this other nonsense.
Sam Rohrer: David, your comment about pardons and forgiveness, I want to go back right there because even in, and we’ve talked about it before, what do we need, ladies and gentlemen, what do we need in this country? A return to God from what standpoint? Well, in every regard, but a biblical worldview, which we talk about so much defines how we view justice, retribution, reconciliation, which is the object of forgiveness. It sounds very much like the Bible, doesn’t it? It sounds very much like Christmas. God so loved the world and Jesus Christ coming to pardon our sins for which we are absolutely guilty. And he chose by definition to overlook, to not remit the penalty of our sins To us. The idea of being forgiving even to enemies is a very important thing. David, you just referenced that. So ladies and gentlemen, if I could, we’re just at the end here right now, in every aspect of headline news we talk about, there’s always a biblical principle that connects to it.
Sam Rohrer: And David just referenced this one under our constitution. Every law, every part that’s there, you can track it right back to a Judeo-Christian biblical underpinning concept of rights. Rights coming from God, the definition of justice, the definition of retribution and restitution and reconciliation. That’s all right off the pages of scripture. So what do we need more than anything as we look at all of this return to God, pursue a biblical worldview, the truth, embrace it, and then enact it and do it. That’s what we need more than anything in this country, be it in Washington or be it sitting around our kitchen table. Right? Alright, well thanks so much for being with us today, David New. Always a pleasure. Great discussion. Very relevant. See you back here tomorrow, ladies and gentlemen.
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