Biden & Trump Try Amending the Constitution

is the last I have to do. This stupid genuflection of January sixth was a bad thing, but not everyone involved in January six deserved to have the book thrown at them. And I genuinely think there was massive over prosecution of January sixth defendants. A lot of these people were being prosecuted for stuff that nobody gets prosecuted for, heavily prosecuted for things that amounted to really nothing more

than trespass type crimes. Basically, the chief crime that most of the January sixth defendants in common got charged with was I think the term for it is parading. It's basically being on a patch of federal property that you're not authorized to be on. So it's a little different from trespass because it's public property, but you're not allowed to be on all kinds of public property. You can't just walk onto a military base and just waltz in

and do stuff as a civilian. No, you have to be authorized to be there and to throw the book at people for crimes that are basically no more than trespass. When there is video evidence of in some cases police officers sort of waving people in, or the whole crowd going in, and people like WHOA, Okay, I guess I'll just go in to aggressively throw the book at those

people I thought was wrong. I was fine with prosecuting anyone who beat up a cop or who assaulted a cop, but I thought it was a ridiculous over prosecution to make this one of the largest criminal prosecution efforts in DOJ history, To have expended that much time, that much energy, that much effort, and to make January sixth as if that was the single most horrific event in American history. It's just ridiculous. The only person killed on January sixth

was a Trump protester. The you know that there were was a police officer who had a heart attack and died like the next day, and there was this massive effort to not talk about in the media and in sources the medical examiners report on him, which said, no, he died of natural causes. He didn't actually die from anything having to do with January sixth. He wasn't killed by the January sixth protesters. Now, so basically, what I'm

trying to say is it's not the worst thing. It's not a good thing, but it's not the worst thing

that's ever happened in American history. And the idea of making it and prosecuting everyone who was there the centerpiece of the DOJ's agenda for four years was ridiculous, and I think it was pointedly a kind of act of political vengeance that I thought was improper, especially given the kinds of things that the federal government, that federal prosecutors patently just didn't really want to concern themselves with over the last you know, eight years, even over the last

four years. You know, the people who were rioting outside the Federal court House in Portland, Oregon during the George Floyd riots for months and months and months and throwing molotov cocktails into the courthouse. Oh no, we're not really very aggressively prosecuting any of those people. There were all kinds of people who got sweetheart easy deals for various aspects of George Floyd protests. Protests where actual cops actually got killed. Sorry, I don't want to imply the Capitol

police are not actual cops. Protests where cops actually did get killed though in some cases, or where other people actually got killed, where people have not gotten as serious sentences. And the DJ did not make the George Floyd riots the kind of centerpiece of their enforcement in nearly the same way that they did January sixth, And it's because

of the politics involved. They just decided, well, they were going to characterize January sixth because it was a right wing effort that this is the worst thing in the world, and Merrick Garland came out and said it. First. They characterized it as a white supremacist terrorism, which is ridiculous. Again, I'm not here saying any of it was good, but the idea that it was white supremacist motivated anything was ridiculous. It was a bunch of Trump supporters who were convinced

that the election had been stolen from him. It didn't have anything to do with white supremacism. But Merrick Garland comes out and says white supremacist terrorism is the single biggest national security threat to the United States. He said that, not me. He said that. We then proceeded to have plain old normal terrorism in the last week of the Biden administration. And you know, Karreeine Jean Pierre got the excellent question, does the Biden administration still think that white

supremacist terrorism is the single biggest threat facing the country. Now, with all that said, I totally supported the idea of Trump pardoning everyone involved with January sixth who is being aggressively over prosecuted for trespass. I wasn't crazy about the idea of just pardoning anyone who was being prosecuted for assault assaulting police officers because I think from the right and as someone who has appreciated a lot of a lot of the Trump certain ways in which Trump has

changed the Republican Party for the better. As far as doctrine, I've been vastly disappointed in Trump two point zero on the kind of seeming retreat on abortion. I guess we'll see what Trump two point zero is actually going to do with regards to abortion. I have been angered at the way that a couple of dufuses in the front row at January sixth started fighting cops and gave this black eye to the entire conservative movement. So I didn't

necessarily want clemency for those people. Trump gave it to everybody. And I read this, this opinion by this guy named Sean Trendy who works for Real Clear Politics, and he had this to say that I thought was really insightful

to understand the rights attitude regarding January sixth. They believe that the reason the dividing line between January sixth protesters getting prosecuted and say, the Portland rioters not getting prosecuted is because the quote norms are set by liberals to protect liberal in groups while allowing the prosecution of out groups. This is also the dividing line between Trump aligned populace and GOP establishment types. The latter. The establishment types say well,

we should prosecute the goons. We should prosecute the goons in Oregon. Also, so the Republican establishment he types people like me, I guess, would say, hey, I think we should prosecute the people who did violence on January sixth, and we should prosecute the people who committed violent acts during the George Floyd riots, or the Portland or the Oregon courthouse riots, et cetera. The Trump folks say that this is a hopelessly naive perspective, because again, the lines

are set by liberals to protect their in groups. So maybe this is the one thing that makes me think maybe I'm naive. A Trump aligned person would say, you want to not pardon the people who did violence on January sixth, I say, yes, I don't want to pardon the people who assaulted cops. What about the people in Oregon, Well, I would say, I think those people should be prosecuted too. Well, they're not gonna.

And obviously for Trump supporters people on the right to argue that January sixth was so much worse somehow than the Portland, Oregon riots or all the George Floyd riots, et cetera, that's not gonna That doesn't work. That doesn't make any sense. Even if you were to admit somehow that January sixth was worse, which I don't think it was worse than the George Floyd riots or anything else.

Trump aligned people will pull to the dividing line. The dividing line between whom we punish and whom we don't is always magically set to excuse people on the left and to punish people on the right. The populist right, the Trump right. Their main deviation from the establishment is a belief that they can and should use their power to set what are viewed to be arbitrary rules to

their benefit when they have the chance. That to me, is kind of a That was I think the most powerful argument I've read about why Trump pardoning all those people makes a lot of sense. Now again, I guess there's a part of me that admits, yes, I think the Trump people are totally correctly aggrieved at January sixth getting punished wholesale. George Floyd riots not getting punished hardly at all. Sweetheart deals being given to George Floyd, Rioders,

et cetera, et cetera. You know, some rich liberal lawyer in Manhattan who fire bombs a police car and somehow gets a sweetheart deal, doesn't get prosecuted all that hard, et cetera. Now I guess my preference, my initial instinct would have been, listen, the Trump team needs to come in. They should actually do a review of every individual January sixth case. If it's something, and the dividing line should

be did you assault a cop? If you assaulted a cop, maybe you can have your sentence commuted to something a little less severe, something that's in line with other prosecutions of other kinds of crimes throughout the country. Everyone who was just being charged with effectively trespassed who normally the federal government would not pursue prosecutions like that. Basically, I just want to actually treat the January sixth protesters the

way that federal prosecutors treat others similarly situated people. And the problem maybe that I'm I'm up against it might maybe my naivete is that there we're never going to do that. They're not going to do that, They're not going to treat them similarly situatedly, And it's naive to expect it that our side should be calling balls and strikes while the other side is not doing that. I don't know. There's a part of me that says we should still do that, and there's another part of me

that's naive. Now the other side maybe the third option here that maybe makes sense, and maybe this is what you know, maybe this is what Trump is thinking. Maybe we just need to kind of turn the page on January as a whole pro con good, bad, indifferent. It wasn't the defining political event of the decade. It wasn't the single worst event in human history. It wasn't a

good thing. And maybe the combo, honestly of one Biden pardoning all the members of the January sixth Committee, which I did not like which he did on the morning of January twentieth, and Donald Trump pardoning all of the January sixth defendants the afternoon of January twentieth. Maybe that combo allows us to just kind of turn the page on it and just stop talking about January sixth in general.

And maybe there's wisdom there, you know, maybe there's wisdom there, Maybe the combination of people pursuing their own particulular political preferences and desires. You know, Biden not wanting Lynn Cheney to have to face any kind of music for you know, was she tampering with witnesses or whatever. Trump basically saying, look, these people supported me, They've gone through hell the last four years. That's enough. Maybe that combo will just allow

the country to sort of turn the page. And maybe the combo of those two pardons from Biden and Trump has the effect of we turned the page on Watergate when Gerald Ford pardons Richard Nixon. We turned the page on Vietnam when Jimmy Carter pardons all the Vietnam War draft dodgers. Maybe maybe that's what happens. I hope that's

what happens. So I will say again, maybe There's there's a part of me that still is like, I don't know that I would have pardoned anyone who beat up a cop on January sixth, specifically because of how it hurt the right in no small part, and just you know, beating up cops is not a good thing. But there's also this part of me that understands that, that kind of understands the idea of maybe doing this just the combo of Biden partnering all the January sixth committee members

Trump pardoning all the January sixth defendants. It's a clean slate, and we move on as a country from this whole episode when we return a couple of more Biden pardoned thoughts and a thought on how to reform the pardons

system next on the John Girardi Show. After the Biden pardons and the disgraceful pardoning of his own family members, like, with literally minutes left to his administration, he pardons all the other members of his family, which which I sort of knew was happening, I will confess the morning of January twentieth, I was thinking, Wow, he still hasn't pardoned Jim Biden and the the other family members he pardoned

people that morning. He pardoned the January sixth committee members, and he pardoned Anthony Fauci, and he had a big statement about those two pardons Biden did that he released, but there was no pardon yet for Jim and the other Biden family members. And I was sitting there thinking, Wow, is he really going to pardon Hunter for all the

stuff he did but not pardon Jim. And then of course, like I think it was literally within an hour, because the new president is sworn in at noon on January twentieth, I think it was, and so nine o'clock our time. I think the pardon came down maybe literally at eight thirty or eight forty our time, so you know, eleven thirty eleven forty East Coast time. So at any rate,

Joe pardons his family. The flurry of pardons from both sides, I think has led to some people sort of looking at the presidential pardon power, which is, you know, it's been a feature of the Constitution from the beginning. It's a holdover from the British Constitution, the unwritten British Constitution that where the monarch had the ability to pardon people

for crimes. And I talked about this on the show how it was famous about Queen Victoria had very particular thoughts about the pardon power and how she would exercise it for people who committed voluntary manslaughter. And so this is a power that the monarch had in Great Britain, and the Founding Fathers retained it within our constitution, the idea being well, this is sort of like a safety release valve in the event of, you know, a bad prosecution.

But there's a couple of things to think about with the pardon power. One, when the Founding Fathers put the pardon power in place, they didn't have the expansive body of federal law that we current have currently have. In fact, like the total number of federal crimes at that time was like treason and it was pretty much yet, I mean, the body of federal law just was not especially federal criminal law was not a very well developed thing. We

had an Attorney General from pretty early on. The office of the Attorney General was created very shortly after the adoption of the new Constitution, but we didn't even have a Department of Justice until I think was the late nineteenth early twentieth century. The body of federal criminal law just was not really developed yet, and thus, as a result, the scope of the kinds of things that the president

could pardon people for was a lot smaller. At the time of the founding, most criminal prosecution, and as a result, pardoning was happening in the United States at the level of the states. Okay, Most criminal law enforcement in America is done through state level prosecutors. Okay. Lisa Smith Camp, who's the DA of Fresno County. She is not a federal prosecutor. She's a California state prosecutor. Okay. She prosecutes people who violate California criminal law within Fresno County. Sally

Moreno does that within Madera County. Okay. Most of American criminal laws handled at the state level, and the governors of the various states have the pardon power for people who violate California law, Arizona law, New Mexico law, Hawaii law, Alaska law, etcetera, etcetera, etcetera. The governor can pardon people who violate state crimes the way the president can violate people who violate federal law. Can pardon people who violate

federal law. But what we've seen with the presidents is Honestly, the last five or six presidents have issued pardons that were really pretty questionable, and a lot of it's happening in this sort of interregnum period between election day and inauguration day, specifically being done because there won't be political ramifications for it. Biden doesn't pardon Hunter or his family until after election day, as everyone predicted. Why well, because if he did it before election day, he would suffer

some bad political result. This is the best proposal I've heard for amending the constitution to sort of reduce the pardon power, because you would have to amend the constitution, and I think at this point both Democrats and Republicans can point to instances of a president from the other party using the pardon power in a way they didn't like.

I think a great proposal for limiting the pardon power would be to keep it from being like venal a venal personal political a venal personal use of the pardon power to prevent against the Joe Bidens of the world pardoning his son and his family and thereby protecting himself. That's the real thing is Biden is kind of protecting himself for his potentially criminal involvement in his son and his brother's shady business dealings. Here's the proposal that I like,

no pardons between election day and inauguration day. No pardons between election day and inauguration day. I think that's a really sensible idea. In fact, maybe a month before election, just to account for the fact that so many states have early voting. No pardons between the election and inauguration day. If you want to pardon someone, you need to be able to take the political hit that results. I think

that's a sound idea. Now, you can't just do that by executive order, you wave a magic wand you would need to amend the Constitution, get two thirds majorities in both houses of Congress, get three fourths of the states to vote for it. But I think that would be

a really sensible way to limit the pardon power. Now, when we return talking about amending the Constitution, I want to talk about two ways in which two consecutive presidents are trying to argue that the Constitution says something different than we'd think. Biden's saying that the era is now a new amendment to the Constitution, and President Trump trying to get rid of birthright citizenship via the Fourteenth Amendment.

That's next on the John Girardi Show. Two significant constitutional efforts were issued by two different presidents over the course of a couple of days, and I'm going to talk about them in turn and the issues pro and con for both of them. One is Joe Biden trying to argue that the Equal Rights Amendment is in fact a real amendment to the Constitution is now the twenty eighth Amendment.

And then President Trump arguing that the Fourteenth Amendment does not protect birthright citizenship, just the Fourteenth Amendment does not protect the idea that just because you're born on American soil, that does not automatically make you an American citizen. Let's dig into it first. Let's talk about Biden's era argument. Now. I talked about this a little on the show earlier

this week. The Equal Rights Amendment was this effort by liberals to sort of shoehorn in of ticking constitutional time bomb into the Constitution, a very simple text that guarantees no discrimination on the basis of sex, putting that into the Constitution. And when it was first introduced, everyone supported it. I believe President Nixon supported it, President Ford supported it. Jimmy Carter supported. Everyone supported it. Republicans liked it, Democrats

liked it. It got the necessary two thirds majorities in both houses of Congress and was well on its way to ratification by the state legislatures. Again, it's two thirds majorities in both houses of Congress plus three quarters of all the state legislatures have to vote for something to be included into the Constitution as an amendment. By the way, a little basic civics thing, there's some people who don't understand what an amendment to the Constitution actually is. They'll say, well,

it's not in the constitution, it's just an amendment. No. It an amendment means we are changing the constitution to say this. Everything that's in an amendment to the Constitution is part of the Constitution, unless like a subsequent amendment is repealing a prior amendment, like with prohibition for example. So if it's an amendment to the Constitution, it's in the constitution. Just a basic thing that some people screw up.

So it got the necessary two thirds votes in both houses of Congress, it was well on its way to three quarters of the state legislatures ratifying it. The era itself, though had a provision saying it had a seven year window in which it needed to be ratified, needed to get the necessary three quarters of the states to ratify

it within seven years. Along comes Phyllis Schlaffley. Phyllis Schlaffley, who single handedly shifted the whole Republican Party on the issue of the Equal Rights Amendment by pointing out that this would be interpreted by the courts to lead to all kinds of disastrous left wing ideas. It would further buttress the idea of abortion being part of the Constitution, It could get rid of any kind of legally recognized differences on the basis of sex, whether it's within accommodations,

within sports, within bathrooms, within this, within that. And she paraded out this list of horribles things that actually became true over time, because it's how the liberals wound up interpreting other aspects of American law protecting people from discrimination on the basis of sex. It's literally what Justice Gorsuch did with the Bowstock decision. So Phylish Laughley incredibly prescient, maybe not in exactly the way that she foresaw, but

definitely was prescient on this question. And because of Phylishlaffley's efforts at the grassroots level. The Equal Rights Amendment was not able to get the necessary thirty eight states to ratify it prior to the seven year deadline. In fact, many states undid their prior ratification. They voted again and said, well, now, after further consideration, we the state of whatever, have decided

to withdraw our state's support for ratifying the Equal Rights Amendment. Now, in twenty twenty, Virginia became if you don't count the states that deratify and you ignore the seven year timeframe that's in the text of the era, Virginia became the thirty eighth state to ratify the Equal Rights Amendment in twenty twenty. Okay, under a Democrat, you know, state legislature.

When that happened, a bunch of liberals started trying to push and they pushed for this throughout the Biden administration, push for the idea that Biden should recognize the RA

as having been ratified. And the big push was always on the National Archivist, who it's not a very partisan job being the National Archivist, but for example, for example, Senator Kirsten Gillibrand from New York was really aggressively pushing that the National Archivist needed to publish the Equal Rights Amendment as the new twenty eighth Amendment of the United States. The argument from Senator Gillibrand was, hey, three fourths of the states have now ratified it. Now Here are the

obvious problems with that? One, The ERA has a seven year ratification window in its own text. In order to say that the ERA is part of the Constitution, you would have to somehow argue that that seven year ratification window that's in the text of the ERA is meaningless. Now there's some argument maybe for that. The Constitution itself doesn't give like a time frame within which you need to get those three quarters of the states to ratify

something for it to become part of the Constitution. But it is there in the text, and that's the terms by which the thing was proposed to everyone. So I don't know how you just ignore that. Secondly, you only get to that thirty eight number if you ignore the states that de ratified. If within whatever window you need to get to thirty eight, you have some states that de ratify, then you don't have thirty eight. You need thirty eight states to ratify a constitutional Amendment before it

can become part of the Constitution. They don't have thirty eight. So you have these two really difficult legal questions that you have to kind of get over if you're going to say that the Equal Rights Amendment is going to be part of the law of the land. I've heard a smart lawyer describe this to me by saying, basically, you need a royal flush. You need to pull a

royal flush. Excuse me, you need to pull a royal flush of winning several difficult to win legal arguments in order to arrive at the conclusion that the ERA is part of the Constitution. And if you know, you've got you know, the Ace of Spades, King of Spades, Queen of Spades, Jack of spades, if one of them is off, if that last one is a nine of hearts, no dice, okay. If any one of these difficult to win, difficult to convince arguments goes south, the ERA is not part of

the Constitution. And who would be the body ultimately deciding is the Era part of the Constitution or not? Well, obviously that would be the Supreme Court. And let me ask you, do you really think that, John Roberts, even John Roberts, who you might think he's a waffling liberal. But one thing John Roberts is is he's kind of an institutionalist, and he doesn't like He's not gonna like

this kind of a Shenanigan. There's no way that you're gonna get five of that nine to agree that all of those difficult to win legal arguments all go one way. There's just no way that's gonna happen. The most gutless aspect of Biden doing this, by the way, well, the two aspects of it that are gutless. One is that he says he thinks that the era should be is recognized as part of the Constitution, but he doesn't do anything to mandate it. He was still president at the time.

It was like over the weekend, it was before January twentieth, and he doesn't say, I am ordering the National Archivist to publish it. I am demanding that all aspects of the federal government recognize and I'm demanding the DOJ recognize it, as you know, as part of the Constitution. I'm directing any lawsuits that regard this topic to consider that. Blah blah blah blah. No, he didn't do any of that.

Not only did he not do that with his statement over the weekend, so basically it was just virtue signaling. It was him just saying, yeah, I definitely think it is. It's like, okay, well the president can think whatever he wants, unless he's going to order people to do stuff. It doesn't matter. I mean, it has no more impact than me thinking that, you know, the sky is made out of cotton candy. The other gutlass thing about it is

Biden doing this the weekend before he leaves office. As I said, the last state, the state that ratified the ERA in such a way as to bring them over the hump of thirty eight if you exclude the states that you know deratified, was Virginia in twenty twenty. So all throughout Biden's four years in office, he could have done this. He could have argued, well, I think the ARA is law of the land. Go pursue it, federal government,

publish it, national archivist, you know, pursue it. Department of Justice. He never did that for four years. In fact, his own DOJ issued opinions saying the ERA is not part of the constitution. His own DOJ didn't support the idea for four years, but now all of a sudden, the weekend before he leaves office, he's saying that it's part of the I think it's part of the constitution. No, it's just a gutless way for Biden to kind of save face and act like he's, Oh, I'm so pro woman,

look at me. And he obviously if he actually wanted the era to be part of the constitution, he should have tried to do something about it. I don't know on day one when he took office in twenty twenty one, he could have done something he never did for four years. When we returned, we'll quickly talk about President Trump's executive order on birthright citizenship the legal issues there next on

The John Gerardy Show. President Trump issued an executive order on day one directing the federal government to not recognize entirely birthright citizenship. This stems from the Fourteenth Amendment. The Fourteenth Amendment, says the first sentence in Section one of the Fourteenth Amendment. Fourteenth amendmentless remember, was ratified after the Civil War, and its chief effect at the time, among various other things, was to grant citizenship and rights to

the newly freed slaves. It was ratified in conjunction with the thirteenth Amendment, which freed the slaves. Fourteen Amendment made them citizens. Fifteenth Amendment made them voters. He uh da da da da da. The text of the fourteenth Amendment, Section one says, all persons born or naturalized, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and

of the state wherein they reside. Now, Supreme Court opinions looking at this, and more relevantly, federal statutes looking at this, have interpreted this as just if you're born here, you're a citizen, even if you're And the only exception that's recognized by Supreme Court decisions or by federal law is if the child of say, if the French ambassador to the United States is in Washington, d C. And the French ambassador he and his wife have their baby in

America in Washington, D C. That baby is not an American citizen. That baby is a French citizen. Now ambassadors are not subject to the jurisdiction of the United States. Is the child of two illegal immigrants who come into the country illegally but have a baby in America. Is that baby subject to the jurisdiction of the United States.

That's the central constitutional question. Maybe maybe not. But there's another problem, which is an executive order like the one President Trump issued cannot contradict a federal statute, something that's actually passed by Congress and signed into law by a president. And we have federal statutes on the books that just said you're a citizen if you're born here, without discriminating on the basis of where you're born of the legal alien parents. That's where President Trump, I think, is going

to have the most difficulty. Maybe you could interpret the Constitution differently, but those federal statutes are very clear and they're on the books. So we'll see. That'll do it. John di' already show see next time on Power Talk.