Biden must ignore
pardon myths and protect Patel’s and Trump’s targets
Patel issued
unprecedented threats. Biden must respond.
December
16, 2024 at 7:45 a.m. ESTToday at 7:45 a.m. EST
Since President Joe Biden began seriously considering an
amnesty for people at risk of retribution from President-elect Donald Trump and his
FBI pick (who comes armed with an enemies list), the pearl clutching and
myth-spinning about pardons have spread. Biden should pay attention to history
and case law, not misinformed critics.
The first myth: A broad amnesty would unprecedented, an
intrusion into the rule of law. That
is categorically false. More than a dozen presidents dating back to George
Washington have granted amnesty to a defined, large group of Americans. As
legal scholar Frank O. Bowman III pointed
out:
George Washington issued pardons in 1794 to defuse the
lingering tensions of the defeated Whiskey Rebellion. President Andrew Johnson
made extensive (and controversial) use of the pardon power to civilly
rehabilitate former Confederates. A century later, Gerald Ford issued a
conditional amnesty and Jimmy Carter a full pardon to Vietnam draft evaders.
Presidential amnesties for categories of people have been
commonplace. After Washington, President John Adams issued
a broad pardon for those involved in the Fries Rebellion in 1799 in
Pennsylvania (i.e., prosecutions of “any person or persons by reason of their
being concerned in the said insurrection”). With a small exception, President
James Buchanan, for example, pardoned Brigham Young and his Mormon followers
who had engaged in a conflict with the U.S. military. In the 19th
century, Benjamin Harrison and Grover Cleveland also
issued pardons to Mormon polygamists.
The White House Historical
Association recounts that presidents from Thomas Jefferson to
Warren G. Harding granted amnesty to various groups of Americans — citizens
convicted under the Alien and Sedition Acts for Jefferson, and 24 political
prisoners (including Eugene V. Debs) for Harding.
Moreover, the association explains, “As decided in Ex
Parte Garland (1866), presidents may issue pardons at any time after
the commission of a federal offense, even before federal charges have been
filed or a sentence has been imposed.”)
What is entirely unique is that an
incoming president and a would-be FBI director nominee have explicitly named
people and groups (e.g., prosecutors) they want to go after. To meet that
unique threat, Biden should issue amnesty to the most vulnerable group of Americans: witnesses
against Trump whom Trump and Kash Patel have already threatened.
The second myth: Some people might not want amnesty. Again, this is not a valid reason to refuse to extend
it to those who very much do want and need protection. Some individuals enjoy
immunity from prosecution on other grounds so won’t need additional protection;
they would be excluded from the amnesty. House members on the Jan. 6 committee
immune under the speech and debate clause, along with and federal and state
prosecutors operating under the color of law, almost certainly cannot be
prosecuted.
But that leaves some ordinary Americans, primarily
witnesses and those who provided material to courts, grand juries, Congress and
federal investigators, to twist in the wind. It’s small comfort that such
people would eventually be exonerated. Criminal trials and appeals can cost
millions of dollars and ruin reputations as well as likely increase the
physical threats many of these figures already face.
The third myth: Amnesty would not completely protect the
recipients. It is correct that such an
amnesty would not protect recipients from criminal investigation for future
conduct, from civil suits or from IRS audits. It is an imperfect solution to
the problem of a rogue, irresponsible president-elect empowering intended
nominees to seek vengeance.
However, by limiting the pardon to a discrete group of
people, making clear this is essentially a witness protection program to
insulate the recipients from Trump’s wrath, Biden can spare some conscientious
citizens and alert the public to the dangers Trump and Patel pose.
The fourth myth: Accepting amnesty is an admission of
guilt. This is false. The most recent
case on the scope of pardons, 2021’s Lorance v. Commandant, held that the defendant’s acceptance of a
full and unconditional presidential pardon did not amount to an admission of
guilt, and therefore the defendant did not waive his habeas rights upon
accepting it.
Lorance also
dealt with a common misperception concerning a Supreme Court case, 1915’s Burdick
v. United States, which seemed to suggest that accepting a pardon
constituted “a confession” of guilt. However, Lorance explained
that that statement referred to how the pardon recipient might feel.
In other words, though acceptance might make the recipient “look guilty” in the
eyes of some, it does not make the recipient legally guilty.
Biden in his amnesty statement can underscore that
acceptance is no admission of wrongdoing but rather confirmation that the
incoming president poses extreme and unprecedented threats to political enemies
— something indicative of an authoritarian regime, not a great democracy.
The fifth myth: This would open the door to pardon abuses
by Trump and/or mar Biden’s legacy. The
first is laughable given Trump’s pardon track record (e.g., Michael Flynn,
Sheriff Joe Arpaio) and his plans to pardon those convicted of violent crimes
on Jan. 6, 2021. He needs no excuse to flout democratic norms. (By the way,
Biden might not have considered amnesty had not Trump recently repeated his
threats and chosen Patel for FBI director with barely a whisper of complaint
from Republicans. If Trump renounced revenge and found a fit nominee, none of
this might be necessary.)
As for Biden, his Hunter Biden pardon statement explained
that he acted because “raw politics has infected this process and it led to a
miscarriage of justice.” It certainly follows that he should act to keep raw
politics — unabashedly announced in advance — from leading to
a miscarriage of justice.
If ordinary citizens face retribution for daring to testify
against powerful bullies, few will do so. To preserve the
justice system, to encourage people to provide evidence, Biden
should grant them amnesty — in effect setting up a witness protection program.
It is the least he can do for selfless Americans.
