To Pardon Or Not To Pardon
That is indeed the question right now, for President Joe Biden. Some are urging the president to issue "blanket pardons" to any and all persons who might become targets of legal harassment by the incoming Trump administration. This is an extensive list, as it includes basically everyone who has ever seriously annoyed Donald Trump at any time, for any reason. And the threat is real, as Trump proved yet again a few days ago by expressing his desire that everyone on the House January 6th Committee should go to jail. And the members of that committee aren't the only ones who could be targeted.
Which is exactly why some are urging Biden to pre-emptively protect a large group of people who have been the recipients of Trump's ire. Just issue them a blanket pardon for any and all crimes during a certain period of time, this reasoning goes, and -- hey presto! -- they will be immune from the legal persecution Trump now calls "lawfare" or a "weaponized Justice Department." Trump proved in his first term that he sees the entire Department of Justice as his personal plaything, to be directed by him to go after anyone who has displeased him, and this is only going to get a lot more blatant and in-your-face in his second term. So why not preclude all of this by giving everyone a "Get out of jail free" card in advance?
It does make a certain degree of sense, obviously. But when you start considering the details and ramifications, it becomes less clear that Biden issuing blanket pardons would be the best thing to do. Which is why it is not exactly an easy or obvious decision for him to make.
In the first place, accepting a pardon is generally seen as the same as admitting guilt for some crime or another. In the legal sense, this might not be true (as recently as 2021, the Tenth Circuit appellate court ruled that accepting a pardon does not equate to a legal confession of guilt), but that's how it would be seen by the general public, at the very least. So what do you do if you are offered a pardon but do not believe you have committed any crime at all?
Pardons must be accepted by the recipient. If a president issues a pardon to someone, they are free to reject it. How many of the people on Trump's enemies list would accept or reject an offered pardon from Biden is an open question. Adam Schiff (newly sworn in as a senator from California) today brushed aside the option, stating: "I don't think the incoming president should be threatening his political opponents with jail time. Nor do I think that a pardon is necessary for members of the January 6th committee. We're proud of the work we did on that committee." Schiff is essentially daring Trump to come after him.
Schiff knows full well that no law exists which states that it is a federal crime to annoy Donald Trump. There simply is no legal jeopardy at all for doing so, because that's not the way laws are written. Trump -- or his attorney general -- cannot simply chuck someone in jail just on a whim. Even if they wanted to do so, they'd have to come up with some sort of legalistic pretext that the person had committed some federal crime, and "being on an investigative congressional committee which investigated a former president" is not a crime.
Some sort of pretext may be used, however, if Trump is truly in a mood for vengeance. They'll twist the law in some fashion or another to bring some sort of (pun definitely intended) trumped-up charge or another. This probably won't result in people actually being immediately chucked in jail, but federal charges are a serious matter (even when they are laughably ridiculous on the face of them).
This is where the argument for pre-emptive pardons gets stronger. Imagine if you were on Trump's target list. Imagine if his new attorney general and his new head of the F.B.I. decided to target you. They file some ridiculous charges against you. What are you going to do about it?
The first thing to do would be to hire a good lawyer. But good lawyers cost money -- a lot of money. Adam Schiff is a sitting United States senator, and his legal bills might even be covered by the Democratic Party. If not, he might cover them with campaign funds. He has financial resources available to him, in other words. But you -- being merely a private citizen -- don't. You don't have any institutional resources behind you. So you've got to either pony up huge amounts of money or mortgage your house or do whatever it takes to get a decent lawyer to represent you.
That is a penalty that has to be paid no matter what the outcome of the court case ultimately is. Let's say the first judge that is presented with the case laughs it out of court -- issuing a summary judgment dismissing all charges. But then Trump appeals this decision (and any others the judge might make that wind up being in your favor). The appellate court rules against Trump too -- so Trump appeals again, all the way up to the Supreme Court. Even if the Supreme Court rules for you, this will all have taken an enormous amount of time -- and to lawyers, time is money. Your money. A lot of money. So even having the courts exonerate you fully may cost over a million bucks, straight out of your pocket. That's a pretty high price to pay, obviously.
Average citizens on Trump's enemies list might weigh that price against the stigma (such as it is) of the public assuming you are guilty of something for accepting a presidential pardon. That would be a very hard choice to make, obviously. Fully clear your name (but go bankrupt doing so), or just accept a pre-emptive pardon to avoid the whole mess before it happens?
There's another twist to all of this as well. Immediately after Hunter Biden's pardon was issued, several Republicans noted gleefully that one result of the pardon is that the Fifth Amendment's guarantee against being forced to self-incriminate no longer applies. If you are pardoned for a crime then you no longer have any fear of prosecution for that crime, therefore the Fifth Amendment no longer applies -- and you can be forced to testify about it (in front of a congressional committee, for instance). We'll see whether Hunter is called back to testify before Congress next year, but it could indeed happen -- and if he refuses to appear or refuses to answer questions then he could be held in contempt of Congress and eventually even jailed for it. Anyone accepting a pre-emptive pardon from Biden would also be open to being publicly grilled with no constitutional recourse to not answer the questions. That's another factor to consider.
And finally, there is the question of setting a bad precedent -- which is probably weighing heavily on Biden's mind as he decides what to do. It would be unprecedented to issue such blanket pardons just to fend off the next president from persecuting people who have done nothing wrong. But it is just as unprecedented to have an incoming president say people belong in jail for having committed the "crime" of doing something he didn't like. The people on Trump's enemies list all probably feel the same as Schiff -- they have done nothing wrong and committed no crimes, therefore they should trust in the judicial system to protect them. Biden likely feels exactly the same -- why should he even consider issuing pardons when there are simply no underlying crimes to pardon?
It is a conundrum, made possible only by Donald Trump's erratic behavior and disdain for the rule of law. And even if Biden does decide to issue blanket pardons, he will probably contact everyone on his list first (before anything is made public) and ask them if they are even interested in a pre-emptive pardon. Some -- those with the financial resources to wage a protracted legal fight -- may take the position Schiff just did, which is essentially daring Trump to "Bring it on!" But others with more modest means may weigh the consequences differently, and wind up deciding that avoiding the whole mess -- even with some people assuming you are guilty of something by doing so -- is the right route for them to take. It's a complicated question that is more complex than it might first seem: To pardon, or not to pardon?
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
Nice piece making some nice distinctions.
My primary takeaway is similar to my last comment: the only reason this is even being debated by the White House and the commentariat is that Trump is behaving uniquely badly by US political standards. That he could use his tame Justice Dept. to harass dozens of his 'enemies' with federal prosecutions that are eventually thrown out but meanwhile cost the victims very high legal fees, seems pretty clear. Yes, he could do that; he is and has been threatening to do it, and has shown in the past his love for vendetta-by-lawsuit.
On that basis, I would say Biden is justified in granting blanket pardons to those who (as you say) have agreed to accept them no matter what the reputational cost might be. Yes it sets a bad precedent, but Trump is a bad precedent in his own right, and subsequent bad precedents follow directly from that fact.
The one thing I would say is a red herring in your accounting is the 'Fifth Amendment' issue. OK, so once you accept a pardon, you can't claim immunity from testifying in a legal case due to fear of self-incrimination. But how on earth does that apply here? As you say, none of Trump's intended victims have actually committed or participated in any crimes. Their testimony in supposed trials about those crimes would be meaningless - there were no crimes.
Finally and pre-emptively, I'd note another argument you didn't make but which I've read elsewhere: that Biden's granting of blanket pardons would facilitate future blanket pardons by Trump, or other imagined future presidents. Nonsense. Trump will do what he wants with the pardon power - like pardoning every January 6th defendant and convict, as he has already said he intends to do - no matter what Biden does in this matter in the next few weeks. As with the Hunter Biden pardon, arguments 'what-about-Trump-if-Biden-does-X' assume that Trump thinks and operates in good faith regarding precedents and traditions.
He doesn't. That's the whole problem in the first place, which Biden simply has to deal with as best he can.
JL
I can't speak for "ya'all" but as far as i personally am concerned, having done something that is illegal is guilt.
And HOW does one determine if someone has done something illegal??
By a legitimate court case in a court of law..
i'd probably make a lousy juror, since i've been influenced by exposure to pertinent information outside of a courtroom.
IE, ideology... So. Yes.. You would make a lousy juror.. Because you are ONLY supposed to be influenced by what you see and here in the court that is pertaining to your particular case...
Which is why OJ Simpson was COMPLETELY and 100% innocent of the murders. Because, based on the facts that the prosecution presented in court, there was simply NO WAY that OJ could have committed those murders. It was a physical impossibility.
kevin Spacey was also found not guilty, in his case not guilty of seven counts of sexual assault.
Which means that Spacey is COMPLETELY and 1000% INNOCENT of all charges and accusations against him..
THAT is how the law works..
Put another way...
Was someone guilty if a racist hate crime against Jussie Smollet??
I mean, he made the accusation against someone.. So, based on ya'all's "logic" SOMEONE must be guilty of that crime, eh??
Kyle Rittenhouse?? Was he guilty of murder just because someone accused him of murder??
Daniel Penny?? Was he guilty of manslaughter just because someone accused him of that??
Darren Wilson??? George Zimmerman??
Were they guilty of crimes, JUST because they were accused???
Nope...
ALL of those people are completely and 100% innocent of any crimes or accusations..
Just like President ELECT Trump..
the court of public opinion and the supreme court of the United States are on donald's side regarding the crimes he committed and subsequently got away with. good for him.
THAT is a matter of opinion. In these discussion, the court of Public Opinion is irrelevant, as it is based on subjectivity and ideology...
In this discussion, the ONLY parameter that has any bearing is the law as dictated by the courts..
Given this FACT:
Jussie Smollet---100% INNOCENT of all charges and accusations
Daniel Penny----100% INNOCENT of all charges and accusations
Kevin Spacey----100% INNOCENT of all charges and accusations
Darren Wilson----100% INNOCENT of all charges and accusations
George Zimmerman----100% INNOCENT of all charges and accusations
"It doesn't matter what I know!!! It only matters what I can PROVE!!!"
-Tom Cruise, A FEW GOOD MEN
his civil cases are still pending.
Civil cases are the biggest forms of BS US jurisprudence in all the annals of BS US jurisprudence..
If someone is found NOT GUILTY in a criminal case, that automatically should mean they cannot be found liable..
Civil cases are nothing more than useless morons trying to extort money from innocent people..
Neely's father is a PERFECT example of a scumbag civil case litigant would the Goldman's (of OJ fame) following a close second..
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@JMCT
My primary takeaway is similar to my last comment: the only reason this is even being debated by the White House and the commentariat is that Trump is behaving uniquely badly by US political standards.
My primary takeaway is similar to my last comment: the only reason this is even being debated by the White House and the commentariat is that Trump is behaving uniquely badly by DEMOCRAT political standards.
There.. Fixed it for you.. :eyeroll:
On that basis, I would say Biden is justified in granting blanket pardons to those who (as you say) have agreed to accept them no matter what the reputational cost might be. Yes it sets a bad precedent, but Trump is a bad precedent in his own right, and subsequent bad precedents follow directly from that fact.
So, you acknowledge that a whole bunch of Democrats have committed criminal acts that they need pardons for...
That's a great first step
This ALSO means that, if President Trump does follow suit and issue a whole slew of pre-emptive pardons in the waning days 2028, that you won't say dick about it...
I'll hold you to that...
As you say, none of Trump's intended victims have actually committed or participated in any crimes. Their testimony in supposed trials about those crimes would be meaningless - there were no crimes.
But you have already said that those people HAVE committed crimes and THAT is why they should be pre-emptively pardoned...
You can't have it both ways, JMCT....
Either these Democrats have committed as whole slew of crimes that they need pardoned for...
OR
These Democrats have committed NO CRIMES and therefore NO PARDONs are warranted..
Yer a typical Demon'rat... Trying to talk out BOTH sides of yer ass...
Ya'all are also missing one very salient point.. Even if Basement Biden does issue a blanket pardon for all the crimes committed by people in Basement Biden's employ, that WON'T preclude or prevent any investigations..
I could readily see the House go thru HUNDREDS of investigations of the crimes committed by Basement Biden et al and submit their finds to the public, oh let's say, a few weeks before the mid-term elections..
One of the VERY few instances where the court of public opinion WOULD matter. :D
So, face reality JMCT.. Justice will be served...
You can count on it..
This whole pardon issue has come to the fore for one reason and one reason only..
Democrats are TERRIFIED that President Trump is going to do EXACTLY what Democrats have done to President Trump..
THAT is the ONLY reason these pre-emptive pardons are being considered..
Personally, I would LOVE to see Democrats get what's coming to them... What they deserve...
But, knowing President Trump and his magnanimity, I am sure it's not going to happen.. :(
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