Bob and Jack discuss the latest developments across three ongoing issues in Trump’s second term: use of the pardon power, unresolved transparency disputes, and the administration’s campaign against major law firms. They examine the political dynamics at play behind a recent series of pardons, promised disclosures related to the Epstein files and the Sept. 2 boat strikes, and how executive orders targeting major law firms, though repeatedly struck down, continue to create uncertainty and pressure within the legal profession.
Thumbnail: President Donald Trump in the White House, April 7, 2025. (© noamgalai, Shutterstock.)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: Good morning, Bob.
Bob Bauer: Good morning, Jack.
We haven’t chatted in a while, and there’s so much going on in the news.
We’re going to talk about three things today that have been simmering in the background persistently. One, we’re going to talk about the latest on pardons. Then we’re going to talk about some transparency issues for the executive branch. And then we’re going to talk about the law firm cases and how the Trump administration has been handling those.
So let’s start off with pardons. Just to remind everyone, the president has been on a pardon spree this year. Early on, he pardoned 1,500 individuals related to January 6th. He later pardoned 77 people in connection with challenges to the 2020 election. He has, by some counts, pardoned 30 people for financial crimes, including the crypto Binance founder and Representative Henry Cuellar.
And then, recently, he pardoned the Honduran president, Juan Hernández, who was serving a 45-year sentence for conspiracy to distribute more than 400 tons of cocaine. This comes at the same time that we’re engaged in this boat-strike war over illegal drugs entering the United States.
So in some sense, this is an acceleration even over Trump’s extraordinary first term. And in some sense, I’m not really surprised by the Hernández or the Cuellar or the Binance pardons. What do you think?
I want to add one more to the list, which is that he has issued a federal pardon for a state conviction. This involves a county election official who was convicted on several counts of assisting a breach in security protocols to stop the Steele inquiry—an unlawful effort to stop the Steele inquiry. This particular election official is now in prison and has been seeking release.
State prison, just to be clear.
Yes, state prison. And he has issued what he calls a full pardon.
Now, that pardon applies to federal offenses. However, it’s interesting to note that he has been pressing very, very hard for a state pardon as well. He would like to see a state pardon issued. The lawyer for this individual takes the position that the president’s pardon power should be read to apply to state convictions too, and he sent a letter to the president making that case.
Now, where Donald Trump wants to take this beyond that is unclear. Right now, it seems to be part of a campaign to put pressure on the state of Colorado—a pressure that, so far, the state of Colorado has shown no interest in giving in to. Whether there’s some other step he wants to take to broaden the understanding of the president’s pardon power is unclear. But I just wanted to note that.
But on that score—before you get to the broader points—it’s not his call. First of all, the pardon power doesn’t extend there. And second, it’s not his call as to whether it does. He can issue whatever pardon he wants, and then it’s a question of what executive officials in the state and what courts examining it will do.
So, you know, I guess the Justice Department could file an amicus brief, but that argument is going nowhere, I think.
I can’t imagine it would go anywhere, but it will be interesting to see whether they take it to the next level and incorporate, as the constitutional policy of this administration, the position that the lawyer for this incarcerated election official has articulated.
So my overall reaction is, yes, it’s a pardon spree. There is no filter, as far as anybody can tell. I want to stress this in the case of the pardon of the former president of Honduras, who, as you point out, was convicted for massive drug trafficking and, by the way, related weapons charges for providing armed support for drug trafficking activities.
He explained in a Nov. 28 Truth Social posting that he had heard from people he greatly respected that this particular drug trafficker—the former president of Honduras—had been treated very unfairly and harshly. Who these people are who told him about this unfair treatment is not entirely clear, although it is known, at least according to press reports, that Roger Stone—himself a pardonee and a former aide and political supporter of President Trump—had provided some avenue for the former president of Honduras to make a plea by letter to the president for this pardon.
And so the doors are open for political influence, with very little in the way of deliberation, explanation, or elaboration to the public about why the pardon power was exercised in this particular case. He heard from Roger Stone, and potentially others, that Hernández had been treated unfairly, and he went ahead and issued a pardon.
Yeah. I mean, one thing that’s important to point out is that there has traditionally been a process that runs through the Justice Department that vets these pardons. Presidents have not always followed that process, of course. In recent years, many presidents have departed from it—President Biden, I think, at the very end with regard to his family. President Trump, in his first term, broke that process completely. Other presidents at times have not followed that process.
Right now, I believe Ed Martin is in charge of the pardon process at the Justice Department. He is someone who is kind of leading the weaponization campaign there. So you’re right—there’s no process. It sounds like it’s whoever gets to the president. The president has said more than a few times, “I don’t even know that person.” I think he said that about the Binance person he pardoned. That sounds doubtful to me.
But it does seem like if you can get access to him on a good day, he’ll sign the paper. I guess I don’t understand. I get some of the pardons—the ones that are retributive or that he viewed as political vis-à-vis himself. But I don’t understand the pardon for the former president of Honduras. Politically, it seems not great for him to be pardoning a former Honduran president under these circumstances.
Some of the financial crime pardons don’t seem to have any political angle at all, other than that the convictions occurred during the Biden administration. I mean, what is going on here? Is it just random? Is there any political play behind that part of the pardons?
Well, in the Hernández case—the former president of Honduras—I don’t think we have a full explanation. It may simply be that this particular former president, guided by people Trump trusts—people he said he greatly respects—managed once again to tap into President Trump’s openness to the argument that some people have been treated as unfairly as he has been by a weaponized Department of Justice, just as he believes he has been.
He said something similar about Congressman Cuellar. He said that Cuellar had been victimized by the Biden administration for speaking out against its border policies.
I want to mention one thing about Cuellar. The irony—if you want to call it that—of the president, in this instance, apparently displaying some bipartisanship by pardoning a Democratic member of Congress should not be lost. When Cuellar then decided to continue running as a Democrat, President Trump lashed out at him and said he had exhibited disloyalty, and that he should have shown more loyalty to the president after receiving a pardon.
So it turns out that this was likely an entirely political pardon. As you know, Trump is very concerned about losing the House, and we are in the middle of this major controversy over mid-decade redistricting. And we’re in the middle of this huge controversy over mid-decade redistricting. He seemed to have had some thought he could pick up a Republican seat, if you will, or convert a Democratic seat to a Republican seat by pardoning Cuellar and Cuellar exhibiting the requisite loyalty. So this nonpartisan or bipartisan pardon was probably very much a partisan pardon.
Although, just to show why I think this doesn’t quite make sense, he also pardoned Rod Blagojevich, who wasn’t going to run for anything—a former Democrat. I think he also pardoned the former Democratic mayor of Detroit. So there seems to be something larger going on. I agree that Trump was disappointed and angry and had different expectations about Cuellar, but it does seem to go beyond that, given that he has pardoned some Democrats.
I should mention—by the way—go ahead.
No, go ahead.
As I mentioned in the case of Cuellar, the question is how he developed this expectation in the first place. And because there’s so little transparency around these pardons, he may have had some reason to believe that Cuellar was going to act differently.
That’s interesting. Yeah. Cuellar could have said, “Give me a pardon and I won’t run.” He got the pardon and then decided to run. There’s nothing Trump can do about that.
Okay, let’s talk about the transparency issues. There are lots of transparency issues floating around Washington right now, but two in particular stand out.
One is the Epstein files. There was a statute passed a few weeks ago—the Epstein Files Transparency Act—requires the Justice Department to release most of the Epstein-related files. I think they’re due next Friday, Dec. 19. There’s an exception, of sorts, for ongoing investigations.
The other issue is whether the public—or even more members of Congress—will be able to see the videos and legal analysis related to the September 2 boat strike, including the follow-on strike. The House appears to have closed its investigation, but the Senate Armed Services Committee remains open. There’s also a provision in the House-passed National Defense Authorization Act that cuts into the Secretary of Defense’s travel budget if he’s not more transparent.
Those are two pretty important transparency issues. How do you think these issues will play out?
At this point, I don’t know. I’ve been very skeptical in the Epstein case, and I’m also skeptical—I’ve written about both of these issues on our site—that we’re going to see anything the administration doesn’t want us to see.
In the Epstein case—let’s take these in order—we recently had Kash Patel saying that he didn’t know whether there was anything more to be released. He also raised concerns about compromising ongoing investigations, and that is protected under the Epstein statute that Congress passed.
There’s word circulating that expectations should not be too high, and that there will be redactions and withholdings. Already, Epstein survivors and Democrats have called for the inspector general to conduct an audit of how the administration has managed these files.
In the meantime, you’ll recall that in March there were reports that 1,000 agents had been put on 24-hour shifts to look for any reference to Donald Trump in the Epstein materials. So there’s a real question about what we’re actually going to see. Are we going to see what the administration chooses to put out, while withholding other material under one justification or another?
I can’t say for certain what will be withheld or why, but I don’t think we’re going to see all of the Epstein files.
Before we move on, let me say something about that. Isn’t this a disaster for him politically? If they’re not fully transparent—and if the exceptions to transparency aren’t completely credible—doesn’t that make the situation even worse?
Haven’t expectations been ratcheted up yet again, with repeated pledges of disclosure? It seems to me that they’re in a terrible position if they don’t produce a maximal release.
Part of it probably depends on whether there are disclosures elsewhere that raise questions about the completeness or integrity of the administration’s release. In other words, if they’re caught out—if something emerges from another source, such as the Epstein estate or a leak, that casts doubt on the administration’s account—then of course that would be catastrophic for the administration.
I do think it’s interesting that in both cases we’re discussing—the Epstein files and the boat strike case—we’re seeing legislative activity, including support from Republicans, that’s putting pressure on the administration on transparency. This is something he hasn’t had to confront before.
They’re under enormous pressure, but how much they give in to that pressure depends on what they’re trying to protect against. And we just don’t know.
That leads to the boat strikes. My sense, from reading the stories—including Republican claims that there’s “no there there”—is that there actually is a there there, particularly based on these videos.
I don’t know about the legal analysis, but the videos and the more recent reporting in the Washington Post a few days ago about the advice that Bradley got about the strikes and the delays before the second strike—and apparently there was at least disagreement among the lawyers and they wouldn’t even commit to what the final legal advice was.
It seems to me that there’s unattractive stuff there for the administration. I don’t see them being transparent there unless their backs are completely to the wall, unless they’re coerced into doing so. And I don’t see that that’s going to happen.
I couldn’t agree more. I suspect that if these videos were helpful to the administration, they would have been released days ago. They haven’t been, and there has been equivocation from Secretary Hegseth.
The president—who tends to be rather muscular in his pronouncements—has said that it’s up to Hegseth.
After saying earlier that he thought that they would be.
That there would be no problem releasing the videos. When that earlier statement was repeated back to him by a reporter, he became extremely aggressive toward the reporter and denied having said there would be no problem releasing that video.
I don’t mean to sound conspiratorial about this. I could reach back across other administrations and cite other examples. I think it is vastly worse in this administration, but — we’re not going to see, I think, unless something extraordinary happens here, what they don’t want us to see.
There are simply too many ways for the administration to dodge transparency. And along the way, the president does what he does very well: he creates distractions. When pressure builds on one front, he opens a new front elsewhere and sends everyone chasing in that direction.
Whether he can outrace this problem in that fashion remains to be seen, but it’s a tactic he has used to great effect in the past.
I’ll add one point on the transparency front. While the opinions and the videos haven’t been disclosed, there have been significant leaks—and damaging leaks—and they’ve been ratcheting up. I expect that to continue, because these situations tend to feed on themselves.
That is a form of loss of control that they haven’t really suffered much yet either.
I totally agree with that. I also think—and I’m obviously speculating here—that one other problem is that I think Hegseth has some dedicated foes within the military establishment and the Pentagon. The question of his actions here, even his failure to be forthcoming about it now, are weapons that are going to be used against him in an effort to weaken his position, if not force him from his position altogether.
Okay. Last issue: there’s a story from a couple of days ago about the law firm cases—these executive orders. I’ll let you describe the executive orders and the state of play with the law firms, but the bottom line is that the administration has been slow-walking this despite repeated losses. So explain what’s going on and why it matters.
Yes. I think it goes to the question of a use of presidential power that is illegal, but not necessarily wholly ineffective.
So about nine months ago, I think it’s nine months ago—the first court order against the administration on one of these law firm executive orders was entered. I think in the Perkins Coie case, it’s now been nine months. And the administration has lost every single one of the cases that have been so far decided on these executive orders.
And yet at the same time, it has been clear from reporting in the law firm trade press that law firms are not eager to have these executive orders issued against them, even though they know that in the end they’re going to win. There’s also been some reporting that some law firms are looking to work with the administration to implement the settlements that he reached with a number of law firms, by which they agreed to change some of their policies, say on DEI, but also to provide support for pro bono causes that were important to the administration. So there’s been some reporting on that.
But the administration is appear eager to have the legality of these executive orders fully resolved. So they have not, as they have in other cases, rushed to seek scase or tried to expedite rulings at the appellate level in any way. Rather, they’ve been more than happy to have delay after delay.
Most recently, an additional 45-day delay because the one attorney who apparently is central to the administration’s defense of its executive order advised the court that he had a planned paternity leave coming up. So he needed additional time. And the law firms that have been targeted, the law firms who were defendants, by and large, either have taken no position or have agreed to these extensions.
So what you have is plainly illegal orders that are out there that probably still have to be taken into account by law firms that don’t want to cross the administration. And the administration is happy to leave them in place in all of their illegality as we try to find out what precisely firms are doing to fulfill the settlements of the illegal orders that have been issued against them.
Yeah, and just to underscore the point in a way, this is also, I think, going on in the Harvard litigation where Harvard has been winning in court. The government has not been rushing for appellate review, certainly an emergency review, certainly not the Supreme Court. And the point is that the main goal is not to win on the law.
The main goal is to affect behavior and to change the way law firms act, change the way universities act. And so the law is being used as a tool, even if it’s unlawful, even if courts declare it unlawful, the administration can go slow on the appeal because it doesn’t matter. They’re still imposing costs in virtue of just having the program out there.
Harvard is spending an enormous amount of money defending these cases and investigations and the like. The law firms are, as you suggest, and I don’t know the full scale of what they’re doing, but they’re certainly worried about these EOs, worried about crossing the administration. These are all wins for the administration, whether they win in court or not.
That’s the important point, I think.
Absolutely. And in the meantime, we don’t know much about what’s actually taking place in pursuant to these settlements. There have been lawsuits filed to try to disgorge from the administration details, more information about what precisely has transpired between the administration and the firms that decided to settle these illegal orders.
But those are relatively recent, and it’s not clear where they’re going to go. So this is a depressingly effective tool that the administration has been using to try to cast a pall or introduce some intimidation into the law firm community. And again, if you look at the trade press, it does appear there are law firms that indeed are litigating against interests of the administration, but there’s a lot of cautiousness among the largest law firms that do not want to face these executive orders.
Okay. I think we’ll stop there. I hope you have a great weekend.
You too. Thanks.
