Hunter’s pardon isn’t
the issue. What matters are pardons for everyone else.
Trump’s campaign of
revenge must be blocked.
December
5, 2024 at 7:45 a.m. ESTToday at 7:45 a.m. EST
Far too much attention has already been devoted to
President Joe Biden’s pardon of his son. It is not the worst pardon ever issued
(recall President Donald Trump sparing
in-law Charles Kushner, Michael Flynn and Sheriff Joe Arpaio, to name a few).
Any pardon is an exception to the normal operation of the justice system, so
decrying this one as an infringement on the rule of law is nonsensical,
especially coming from the MAGA crew that has subverted the system at every
turn. That said, the reason given (selective prosecution) rankles, as it echoes
MAGA’s disingenuous criticism of Trump’s prosecution.
In fact, the better justification for the pardon applies
not only to Hunter Biden but to scores of Americans: reasonable fear that a
weaponized FBI directed by a vengeful president will carry out threats to
pursue his enemies.
Biden can address some criticism, demonstrate that his
concerns are not merely familial and prevent gross mistreatment of Trump’s long
list of enemies by looking at the universe of Trump targets. Consider, for
example, former Trump attorney Michael Cohen, without whose testimony before
Congress and again at trial Trump might not have been
convicted in the hush money case. Let’s not
ignore retired Gen. Mark A. Milley (whom
Trump has targeted) plus the multiple categories of
Americans — including journalists, lawyers, political opponents and election
workers — Trump (or his minions, including his choice for FBI director, Kash
Patel) have specifically mentioned for retribution.
Fortunately, the pardon power specified in the Constitution
is exceptionally broad. Historically, it has been
used to exempt a specific individual, such as Richard M. Nixon,
from any crimes within a specified period of time (“for all offenses against
the United States which he, Richard M. Nixon, has committed or may have
committed or taken part in during the period from January 20, 1969 through
August 9, 1974”). It has also been invoked to describe large categories of
individuals, including all those prosecuted for federal marijuana charges,
or, in the case of Jimmy Carter, all those who
evaded the Vietnam-era draft by
going to Canada (“all persons who may have committed any offense between August
4, 1964 and March 28, 1973 in violation of the Military Selective Service Act
or any rule or regulation promulgated thereunder”).
Brookings Institution’s Richard Lempert explains:
“Pardons,” for example, encompass amnesties and can be
accorded people whose identities the president does not know and may be unable
to determine. The first such pardon was issued in 1795 by George Washington to
people who participated in the Pennsylvania Whiskey Rebellion, with Jimmy
Carter’s pardon of Vietnam-era draft evaders being a more recent example.
While none of these pardons have been challenged in court,
general principles of common law suggest
that it is sufficient simply to describe the category of individuals one
intends to pardon. Similarly, modern practice suggests that pardons from
prosecution both for specifically delineated and all other crimes are
valid. (Flynn’s pardon extended
to “any and all possible offenses within the investigatory authority or
jurisdiction of the Special Counsel appointed on May 17, 2017 … and all
possible offenses arising out of facts and circumstances known to, identified
by, or in any manner related to the investigation of the Special Counsel …”).
In the case of Trump, the Michael Cohens, E. Jean Carrolls
and Liz Cheneys who went above and beyond the call of duty in the effort to
hold Trump accountable for his actions — not to mention journalists who
revealed his misdeeds or grand jurors who indicted him or former aides he
disparaged — face the danger of malicious prosecution. Biden need not, must
not, leave such individuals to the MAGA wolves.
Pardons for any conduct related to Trump or his associates
since 2015 (when Trump entered the presidential race) could be included. The
individuals to be protected could include anyone who has testified against
Trump in any forum (e.g., former White House aide Cassidy Hutchinson, who
testified before the Jan. 6 committee);
anyone who has worked on or advocated for the criminal prosecution of Trump and
his associates (e.g., state prosecutors, former Justice Department lawyers who
have supported prosecution or filed friend-of-the-court briefs); journalists whom Trump
and his minions have accused of conspiring against them; election officials (including
those he claimed rigged the 2020 election); and a catchall category of those
Trump and his planned nominees have threatened. If the categories are unusually
broad, it is because Trump has threatened so many people.
Several caveats apply.
First, nothing prevents Trump or his associates from
pursuing civil remedies against any individuals; nor can Biden protect anyone
from prosecution for future conduct.
Second, Biden should not protect anyone from prosecution
for violent crimes (as Carter’s pardon specified); an
inviolate principle against pardoning those who commit violent acts against
people or property (including the Jan. 6 rioters) should remain.
Third, although Trump will undoubtedly balk at such a broad
pardon, he no doubt will want to pardon whole categories of
people (e.g., co-defendants and unindicted co-conspirators). In other words, a
president who has his own broad categories of individuals in mind may be less
inclined to challenge pardons on the basis of their wide scope.
Finally, not everyone may choose to accept a pardon; that
will be their individual choice.
No doubt, Republicans would argue that such a sweeping
pardon is too extensive and too great a deviation from the normal operation of
the justice system. However, the actions Trump has undertaken in the past, the
actions he threatens and the individuals whom he has tapped for high office
(some of whom also vow revenge) suggest we have long ago passed out of the
realm of the routine operation of the rule of law. It would be unwise,
self-defeating and immoral to allow Trump carte blanche on pardons and leave the
good-faith defenders of democracy to twist in the wind.
In sum, Biden can mute concerns about Hunter’s pardon by
recognizing the real danger: Trump’s announced threats of vengeance against an
array of Americans whose only “crime” was seeking to hold Trump accountable.
Protecting the potential targets of a wrathful president would serve the
interests of democracy, effectively short-circuiting Trump’s revenge agenda. If
Biden’s mercy extends beyond his son, his pardons may be seen as more
high-minded and politically savvy: namely, limiting Trump’s reign of vengeance.
