Title: Monday Morning Politics: Inauguration Day

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Brian Lehrer: Brian Lehrer on WNYC. Coming up at eleven o'clock, we'll hand off to NPR in Washington for coverage of the inauguration. There is already a significant amount of transition news this morning, as I was saying before the break, not just pomp and ceremony. Before we even get to the inauguration and the possible Day 1 executive orders in January 6th riot pardons that many people are expecting, President Biden, as perhaps his last official act in office, issued preemptive pardons for a number of people this morning to prevent against the Trump revenge tour, as people call it.

Pardons were offered to Dr. Anthony Fauci, retired General Mark Milley, and members of the January 6th Select Committee in the House of Representatives, including the outspoken Republican Liz Cheney, and also, and maybe this isn't getting enough immediate attention compared to those famous names I just mentioned, also, Biden pardoned police officers who testified before the January 6th Committee. Biden released a statement with the pardons that read in part, "The issuance of these pardons should not be mistaken as an acknowledgement that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense."

The Biden statement said, "Even when individuals have done nothing wrong, and in fact, have done the right thing and will ultimately be exonerated, the mere fact of being investigated or prosecuted can irreparably damage reputations and finances." Why might Trump, in a revenge tour, have prosecuted Dr. Fauci, who advised Trump and Biden on the nation's COVID response? The Associated Press puts it this way. Fauci has since become a target of intense hatred and vitriol from people on the right who blame him for mask mandates and other policies they believe infringed on their rights even as hundreds of thousands of people were dying.

Why General Milley, who was appointed by Trump himself to be chairman of the Joint Chiefs of Staff? The AP says Milley later called Trump a fascist and detailed Trump's conduct around the deadly January 6th, 2021, insurrection. Today, Milley said, again quoting from the AP, that he was grateful to Biden for a pardon so he no longer has to worry about "retribution." We also have reports coming in now on lines from the inaugural address and some of the immediate executive actions that are specifically expected. I gave you some of those before the break.

Joining us now, let's talk about these things, Washington Post columnist Philip Bump, who is watching the transition. He's also the author of the book that came out in 2023, The Aftermath: The Last Days of the Baby Boom and the Future of Power in America. Philip, thanks for some time on an already eventful and dramatic day. It's only 10:30 in the morning. Welcome back to WNYC.

Philip Bump: Indeed. Thank you very much.

Brian Lehrer: Let's start with the pardons issued this morning by President Biden, and let's go down the list. First,-

Philip Bump: Sure.

Brian Lehrer: -the police officers who testified before the January 6th Committee. Why would Trump have potentially gone after members of the Capitol Police? I assume these are Capitol Police officers who simply testified to what they experienced and what they saw.

Philip Bump: Right. I'm not sure why Trump would do that specifically. Obviously, trying to predict what exactly is going to happen with Donald Trump is tricky. I'm not sure. It seems to me that it's likely one of two things, either that President Biden wanted to be as broad in issuing these protections as he could or that he had some sort of indicator from someone somewhere that this was warranted. Obviously, those police officers have been often outspoken and often critical of Donald Trump's base, making them targets of people who Donald Trump is always trying to appease. That said, I don't know that there is anything particular for them that's different than, say, the January 6th House Select Committee, which obviously we're also included in these pardons.

Brian Lehrer: Yes, but do you know what alleged crimes Biden had reason to believe those police officers could have been charged with?

Philip Bump: No, but I think this is part of the point, that who knows what alleged crimes might trigger an investigation and/or prosecution by federal law enforcement in the Trump administration. I don't know. We know we've gotten some hints from President Trump's public comments or President-Elect for the next hour and a half, Donald Trump's public comments about the January 6th Committee that are contrived and obviously artificial, targeting those former members of Congress. Who knows what he might go after?

It may be something like tax evasion. We've seen in the past how there were questions about whether Donald Trump had used his power during his first term as president to try and target his critics using the IRS. Who knows what might be ginned up in order to make these people's lives painful.

Brian Lehrer: Yes. Let's go to those January 6th Select Committee members next, Liz Cheney or anyone else. I don't know if the executive branch, which of course has the Justice Department, which prosecutes crimes, has ever criminally charged members of Congress in conjunction with a hearing or if they can, under the Constitution. Some of the buzz on the right, though, has been about Liz Cheney allegedly witness-tampering by advising former Trump aide Cassidy Hutchinson, who was such a powerful witness at the hearings, to change lawyers. Do you know what they had in mind there, or what actually happened?

Philip Bump: I do. There was a report that came out last month, I believe, maybe even earlier this month, which attempted to build a case against Liz Cheney. It's important to note that this report came only after Donald Trump suggested that Liz Cheney had done something. It seems very much as though someone in the House was doing his best with his compatriots to try and figure out what the rationalization could be for the alleged targeting of Liz Cheney that Donald Trump sought. Basically, the allegation is that when Cassidy Hutchinson had first been giving testimony to investigators who were looking into what had occurred at the Capitol riot and Trump's efforts to retain power after 2020, that she had grown disillusioned with her then attorney, who had been paid for by Trump's team, and felt as though she was putting herself at risk of perjury by failing to disclose everything she knew.

She then reached out to people, including having a conversation at one point with Liz Cheney. Liz Cheney sent her a bunch of people who she might reach out to if she wanted to change lawyers. She ultimately called one of those folks and chose them as her representatives, and then offered more testimony. That's it. There's nothing to indicate that there was actual witness tampering. In the same way that there's this broad allegation that evidence had been destroyed by the January 6th Committee, which is unfounded, this too is unfounded and is an attack that's looking for a predicate rather than the other way around.

Brian Lehrer: January 6th-related, a listener sent us a text message just now that says, "I didn't see Jack Smith or many others who are also at risk. Why not? Meaning on the list of people Biden pardoned today that says every single person threatened by Trump should be given a preemptive pardon, not just high profile people. In the remaining hours, he must expand this good start." We did hear, if not Jack Smith by name, and maybe Jack Smith by name, you remind me, Pam Bondi, the incoming attorney general, assuming she's confirmed, talking previously about prosecuting the prosecutors of Trump.

Philip Bump: Yes, I think that one of the issues here that's an overarching issue is it's impossible to anticipate who will end up on the Trump enemies list at any point in time and to offer all of them protection. Obviously, Jack Smith is someone that Trump has targeted repeatedly for months now. I can't answer that question. I don't know why Biden chose this particular group of people as opposed to another group. It may be that he wanted to protect particular elements of those groups that he thought were being targeted. He may particularly feel as though, because the work that the House Select Committee was doing in concert with the witnesses and those Capitol Police officers, that they deserved to ensure that they had this level of protection.

Fauci similarly. I don't know what the distinction is. I will say it's important to remember that all of this protects them from federal prosecution for federal crimes. It doesn't protect them from state attorneys general going after these people. We've seen a lot of states that have attorneys general who are interested in doing Trump's bidding. It certainly doesn't protect them from harassment. Even after he issued the preemptive pardon for his son, Hunter Biden, we've seen Republicans say, "We're still going to investigate him, we're still going to go after him." They are not shielded from any of that. I think it's safe to say that we will see some investigations, even if they don't result in federal criminal charges. We will see a lot of these people's lives be made difficult under this administration.

Brian Lehrer: Listeners, we'll be mostly going down the breaking news this morning of last day actions by Joe Biden as president, first day announced or leaked actions by Donald Trump as president, mostly going down all this breaking news this morning with Philip Bump, Washington Post columnist. We can take a few questions for him, as we took that one from the listener who texted. 212-433-WNYC, 212-433-9692, call or text until we hand off at eleven o'clock to NPR in Washington for the actual inaugural coverage. Let's keep going down this list of Biden pardons this morning. Dr. Anthony Fauci, the right may have not liked some of his COVID recommendations, but what alleged criminal acts was anyone expecting that Dr. Fauci could be charged with?

Philip Bump: Again, it's a great question. I think we tend to view these things through the lens of, okay, we know who Anthony Fauci is. We know about his service, we know what he did around the time of the pandemic and mining that somewhat limited space to figure out, what are the allegations going to be? What are we going to say that he did? I think that's short-sighted because, again, the point here isn't Fauci did something, therefore, we're going after him. It is, Fauci stood against Trump, therefore, we're going to figure out a way to make him pay.

It is punitive. The reason that these pardons exist is because the expectation is that it's going to be punitive. Again, it could be they're going to dig into his taxes, and maybe he filed something a week late. Who knows what it's going to be? The federal government has a huge range of laws that apply to people, through which an enterprising and unscrupulous person could dig in order to find something to make someone pay. Who knows? I don't think we can sit here and say Fauci's decision on X or statements about Y were a borderline in violation of US Code 18 C45. That's not the space that we're in. The space that we're in is, Anthony Fauci stood against Donald Trump, not even willfully, not even really politically, but just by being honest about what was happening with the pandemic. As a result, he's now an enemy of Trump, and as a result, the concern is that there will be some contrived reason that he is the subject of prosecution.

Brian Lehrer: Yes. Here's another text that mentions another couple of names that I guess this listener would have liked to see get preemptive pardons today. It says, "Curious to know why Vindman or Yovanovitch, who of course were US government officials who testified in the Ukraine-related Trump impeachment, curious to know why Vindman or Yovanovitch weren't included in the pardons," writes that listener. I guess the answer is the same one you gave before, when people ask, "Why not Jack Smith?" We don't really know.

Philip Bump: Yes, exactly. Right. Look, there still is an hour and a half, hour and 20 minutes left before Donald Trump becomes president. We could see others. I think that's probably unlikely, but it's hard to answer that question.

Brian Lehrer: The last one from the list of pardons that were issued this morning, preemptive pardons, General Milley, he was Trump's own appointee as chairman of The Joint Chiefs of Staff. He later was quoted in Bob Woodward's book, calling Trump a "fascist to the core." I guess I'm going to ask you the same question, and maybe you're going to give me the same answer. Since a pardon suggests that somebody could have gone after them criminally, what potential criminal actions did Biden have, information that a Trump Justice Department might bring against Milley, if there's anything?

Philip Bump: Yes. Again, this falls more into the Liz Cheney space, wherein we've heard at least some rumblings about the ways in which they think that these people are potentially susceptible to prosecution, that experts think are not actual predicates for prosecution. Milley, there was a report, for example, that he had reached out during the aftermath when Trump was a lame duck from November 2020 to January 2021. He had had conversations with foreign governments, including China, trying to assuage their concerns that Donald Trump would act out in an erratic way as he was trying to hold on to power.

There had been some allegations at the time, or some complaints at the time, that this was him overstepping the bounds, that he had behaved inappropriately in some way. Something like that in the hands of, let's say, Kash Patel ends up confirmed as the FBI director or Pam Bondi as Attorney General, both of which seem possible, who knows? Who knows what is exhumed from the past in order to make Mark Milley the subject of a federal prosecution? It's just it's very hard to anticipate, in part because there are so many options, insincere options. I shouldn't suggest that he is validly subject to all these investigations.

Brian Lehrer: Right. To take a step back, it's such an unusually polarized Inauguration Day. I don't think you or I have ever seen anything like this in our lifetimes. Right? The inaugural speeches are usually gracious toward the departing administration, even Obama, towards George W. Bush, to take a different polarized moment example for people who forget how polarized 2008 was. Do you expect Trump to rail against these pardons or Biden, or the subjects of the pardons, the people we've been talking about, in his inaugural address?

Philip Bump: Not really. The inaugural addresses, like the State of the Union addresses, have typically been places where Trump doesn't start doing a lot of freelancing. He often will have a manuscript for what it is he's intended to say that he starts riffing on once he gets in front of the teleprompter. Usually, these occasions, we haven't seen him do that. My guess is there wouldn't be hard written into his inaugural speech, any attacks on Joe Biden in that way. I will say, too, that one of the patterns we saw in the first Trump presidency that we can expect to be resuscitated here is that Donald Trump has formal statements that are released from the White House or that he makes in speeches that he reads somewhat lacklusterly from the teleprompter that serve as a baseline for what the White House can point to and say, "See, this is what Donald Trump is saying."

We saw, for example, a lot of the questions in his first administration about his views on race and his response to Charlottesville. They released statements and had him give a teleprompter speech decrying racism that they then would perpetually point back to and say, "Hey, look, this is how he really feels about it." This one thing that he said on teleprompter, not these off-the-cuff comments he's made at other points in time. I think that we'll see a lot of that sort of language in his inaugural speech today.

Brian Lehrer: Then it's possible that this will become a day of tit-for-tat pardons around Trump's stolen election live from 2020. We have what we've been discussing, who President Biden just gave preemptive pardons to. Then we have the rioters who tried to stop the peaceful transition of power in 2020. Any information there at The Washington Post? How many January 6th rioters convicted by juries, or who took guilty pleas might be pardoned by Trump today, or if that list will include any who are violent?

Philip Bump: I have not seen any reporting on that. I'm not sure if my colleagues have that information to which I'm not privy. Yes, it seems very obvious that there's going to be sweeping pardons that are done. Look, there's well over 1,000 people now who have either pled guilty to or been convicted of crimes related to the riot at the Capitol. There's a lot of space for him to issue broad commutations or pardons. I think we can expect a lot, but I don't know how far those are going to go. It's hard to say at this point.

Brian Lehrer: All right. When we come back from a break and head up to NPR inauguration coverage at eleven o'clock, we're going to continue with Philip Bump, Washington Post columnist. We're going to move from pardons from the outgoing president this morning and likely from the incoming president this afternoon to other consequential and dramatic and even Constitution-challenging Day 1 executive orders that are being reported will come today, or maybe they will come tomorrow. I see in the Rupert Murdoch journalism world that there are going to be 10 that will be issued today.

We'll talk about what we know of those with Philip Bump and take some of your calls and texts, if you do have more questions, at 212-433-WNYC. Also, TikTok and New York City, and who's going to be at the inauguration? Stay with us. Brian Lehrer on WNYC. By the way, here's a text from a listener who has a theory as to why Biden didn't put Jack Smith on his pardons list this morning. Listener writes, "I think a reason that Biden did not preemptively pardon Smith could be that he didn't want to go near the Justice Department to potentially bolster claims of weaponization of the justice system."

Interesting theory there from one listener. We have Philip Bump, Washington Post columnist, with us till that top of the hour handoff. Remember, today is also Martin Luther King Day. For those of you who haven't been with us since the top of the show, we started with a 20-minute excerpt from our Martin Luther King Day event at the Apollo Theater yesterday. For many African Americans, this is a very poignant and troubling coincidence. I know, not just for African Americans, but it's Martin Luther King Day, so, in particular, African Americans to that point, given some of Trump's record on race and support by white supremacists. Philip, do you have any indication that he will give any nod to King Day in the inaugural speech and the fact that these two things are happening on the same day?

Philip Bump: I don't have any such indication. I can see how it's possible, which normally we would say, yes, of course, there'd be some sort of comment made about it. I think it's very safe to say that the work of Martin Luther King is not something which has found its way often into Donald Trump's rhetoric. I think it's probably unlikely that he spends a lot of time on, and he's certainly not going to point to, for example, Martin Luther King's messages on racial equality as part of his speech. If it does turn up, I wouldn't be surprised to hear him try and tie in Martin Luther King's comments from his most famous speech about equality and treating people equally and trying to apply that to himself and the aggrieved individuals who are his strongest supporters, trying to suggest that they have been similarly mistreated. We've seen a lot of that sort of rhetoric over the past year or so. No, I think it's very safe to say that Martin Luther King's primary and central message will not be a big part of Donald Trump's speech.

Brian Lehrer: Yes. I guess equally galling to not mentioning MLK or MLK Day at all, equally galling to many would be if Trump uses King's line about judge people by the content of our character, not the color of our skin, as an argument that King would have opposed affirmative action, which King certainly did not. It was already a thing in his lifetime. We'll see if Trump goes there. Do you expect any Day 1 or very early executive actions against diversity programs that are current in law or policy?

Philip Bump: Yes, I think that it is likely that there will be some sort of executive order that targets efforts at diversity and equality in government agencies and bureaus, places that the executive branch that the President actually has power over. I think that's very likely. Donald Trump has pledged, and his staff has pledged that today will be a day of shock and awe, which is an ironic thing to cite given how that worked out for George W. Bush in Iraq. They have used that term to describe all the things that they're going to do, and so there will be myriad such. He's going to try, in many ways, to exercise his campaign rhetoric as soon as possible. I think that's probably one of the ways he'll do so.

Brian Lehrer: You have an article from last week called The Selective DEI of Pete Hegseth. Hegseth, of course, is the Defense Secretary nominee who claims that DEI, diversity, equity and inclusion programs in the military are weakening its ability to win wars. What's the selective DEI of Pete Hegseth that you attribute to him?

Philip Bump: It's really interesting in part because so many of these complaints about DEI are really just inverted complaints from often white people, often white men, that they're somehow being disadvantaged by others having a more level playing Field. Pete Hegseth, actually, in his opening comments at the hearing, considering whether or not he should be confirmed, he said, "Look, we should have someone who's a veteran who is the head of the Department of Defense. Yes, I may not have the qualifications of past secretaries of defense, but I do have this experience on the ground."

This is exactly the point. He is ascribing to himself like, "I represent this small part of the population, and while I may not have the qualifications of others simply by virtue of being a member of that population, I should get this job." That is how DEI is presented by people like Hegseth, even though that itself is not a fair representation of how these programs work. It's very telling because it shows he doesn't feel as though people who are not white men should be able to be given consideration for the fact that they have historically suffered disadvantages that aren't their fault. Yet at the same time, he asks that he himself be given this disadvantage. I think it's a pretty good encapsulation of how that whole issue is approached from the right.

Brian Lehrer: Fox News and The New York Post, same company, report Trump will issue 10 executive orders today. Two on immigration may immediately challenge generally understood law or constitutional principles. One is deploying the military to the border. That would presumably challenge the, I think it's 143 years old, to be precise, Posse Comitatus Act that prohibits deployment of the US Military on US soil. It is right at the border, protecting against people coming from another country. Maybe that's how they're going to argue that.

The other, which I'm seeing now in my newsfeed just three minutes ago, your news organization, The Washington Post, also has, so I'll read The Washington Post version, Trump will attempt to end birthright citizenship with an executive order. The Post says scholars say the action would be unconstitutional. Birthright citizenship, to fill people in on the term, if you don't already know, is automatic citizenship for anyone born on US soil. That's in the 14th Amendment to the Constitution. Heads up, Supreme Court, you'll very possibly be called on to interpret the 14th Amendment.

Philip, what are you expecting in those executive orders or any other? I did, just to put some of our listeners who may have citizenship as birthright citizens and might be 70 years old or whatever, because, of course, this has been going on for a long time, put them a little bit at ease. The version I read of it on Fox seems to indicate that this will only be for future babies of undocumented immigrants born in the United States, not retroactive. Do you have anything on that?

Philip Bump: Yes. I think that it's really important to note that this is, essentially, as though Donald Trump had said that he was going to sign an executive order within his first minutes in office repealing freedom of speech. This is in the constitution, so the 14th Amendment to the Constitution. This is not something that is subject to legislative influence. Yes, it may be the case that this gets kicked up to the Supreme Court, and the Supreme Court has to say, "No, this isn't the Constitution," or even if the Supreme Court takes some totally deviant approach to it and suggests that the reading of the amendment isn't what it flatly states--

Brian Lehrer: I think the argument from the Trump side is the 14th Amendment was after slavery. It was, birthright citizenship was meant to ensure that all African Americans born in this country, even if they didn't have full citizenship by their status as enslaved people, would, in the future, be considered full citizens of the United States by virtue of being born here, and that they weren't thinking about undocumented immigrants one way or another when they wrote that amendment. That's going to be the argument, right?

Philip Bump: Yes. 100% right. One can always figure out ways in which elements of the law or elements of the Constitution can be interpreted that's favorable to your political influence or your political instincts. Right? Yes, you're absolutely right. I'm not saying that to disparage you. You're right that this is the argument that's been made in the past, but it is simply fundamentally the fact that even prior to the 14th Amendment, there was an understanding about what it meant to be a natural-born citizen of the United States, one that comes up in the context of the presidency more broadly.

I think that it is important to recognize that this isn't simply Donald Trump hoping to adjudicate this nuanced issue of constitutional law. It is instead, he's trying to change how it is that America views immigration and views the status of the children of immigrants, for political purposes, and that he is simply throwing this out. There's a quote, I think, at The Post or at the Wall Street Journal, I don't remember which, from someone who's in the administration who's admitting they're just saying, "Okay, let's see what happens. We're going to toss this out there and see how the courts view it." When that is your approach, that does not suggest that your primary interest here is presenting an alternative understanding of legality, so much as it is trying to achieve something politically.

Brian Lehrer: I'll just mention, because we don't have time to dwell on it, that he may well issue a 90-day pause on the TikTok ban that was passed by Congress. I want to end with you, Philip, on something more local. You report from here in New York, as I do. Do you have any indication that New York will get off easy at the start of this compared to, say, Chicago, where the Wall Street Journal reported that there'll be a Day 1 massive and week-long immigration raid? Because unlike Chicago's Mayor Brandon Johnson, Adams has been playing nice with Trump, Mayor Eric Adams. Maybe because Adams is hoping for a pardon, maybe not. Here is Adams over the weekend.

Mayor Eric Adams: I'm looking forward to the next four years of having a president that loves this city like I love this city.

Brian Lehrer: You know what I was actually thinking, is that kind of language, ironically, going to be protective for New York's undocumented immigrants compared to those in other cities, maybe at least at the very beginning?

Philip Bump: I think the question here-- Adams is actually down in Washington, he said he got a last-minute invitation and hurriedly went down to DC, so he's actually there now.

Brian Lehrer: Attending the inauguration, right? He'll be in the audience.

Philip Bump: Yes, right.

Brian Lehrer: Some Democrats are boycotting, some Democrats are attending. Adams will be in attendance.

Philip Bump: Right. I think the question is, is the difference between Chicago and New York that the Trump administration goes after Chicago just to punish the mayor, or is it that the mayor of New York City is more willing to work with the administration, making the splashy raids in contravention of Democratic politics less necessary? I don't know the answer to that. I don't think it's the case, particularly given Adam's past comments on immigration and immigrants in New York City. I think it's very unlikely that he's going to offer significant protection to immigrants who are in the city, particularly given his own desire, as you said, potentially, for a pardon from President Trump.

I think that he has more of an instinct to try and go along with what the administration wants, which may make immigration law enforcement actions in the city less Fox Newsy, but I don't think that it means that immigrants have a level of protection here. I think it might mean quite the opposite.

Brian Lehrer: We will see what happens in Chicago, too, because after the Wall Street Journal report, incoming immigration czar, Tom Homan, said that would change the idea of massive Day 1 raids in Chicago because the story leaked and there would be various raids in various cities instead. We will see what happens. Philip Bump, Washington Post columnist, thank you for coming on with us today.

Philip Bump: Of course. Thank you.

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