Monday was a big day for presidential clemency, but that does not mean it was a good day.
Both outgoing President Joe Biden and incoming President Donald Trump used that power in self-interested, shortsighted ways, sacrificing the public interest to benefit political allies and, in Biden’s case, family members.
Biden granted preemptive pardons to five relatives, former COVID-19 adviser Anthony Fauci, former Joint Chiefs of Staff Chairman Mark Milley and the members of the House select committee that investigated the Jan. 6, 2021, riot at the U.S. Capitol. Those pardons were necessary, he argued, to prevent his successor from pursuing “baseless and politically motivated prosecutions.”
Even if such prosecutions were ultimately unsuccessful, Biden noted, they would impose financial and emotional costs on Trump’s targets. But critics of the move, including at least two members of the Jan. 6 committee, noted that the pardons entailed an implicit admission of guilt and set a dangerous precedent that is apt to undermine the rule of law and the accountability of federal officials.
Trump’s threats to punish his political opponents are, by and large, legally groundless. He has argued, for example, that the legislators who investigated the Capitol riot and criticized his role in it are guilty of “treason,” which is punishable by death or by a prison sentence of at least five years.
A person commits that crime when he “ow(es) allegiance to the United States” and “levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere.” Even less risible charges would seem to be precluded by the Constitution, which says members of Congress “shall not be questioned in any other place” for “any speech or debate in either house.”
Trump should have been forced to put up or shut up: to explain exactly what law those legislators supposedly violated and the grounds for believing that or stop talking about sending them to jail. Likewise, if he was serious about investigating “the entire Biden crime family,” he would have had to flesh out his vague allegations of corruption.
Biden’s solution absolved Trump of that burden while allowing him and his supporters to claim the pardons showed they were right all along. Worse, it invited Trump and future presidents to routinely grant their underlings preemptive pardons at the end of their terms, allowing those officials to break the law with impunity in service of the president’s personal, political or policy agenda.
While Trump argues that investigating the Capitol riot was somehow a crime, he seems to think participating in that riot was no crime at all. In granting blanket clemency to the nearly 1,600 people charged in connection with what he has called “a heinous attack on the United States Capitol” and blocking cases against additional defendants, Trump drew no distinction between people who merely entered the building and people who vandalized it or assaulted police officers.
“If you committed violence on that day, obviously you shouldn’t be pardoned,” JD Vance, now the vice president, said last week. But that “obvious” caveat was notably missing from the indiscriminate pardons Trump actually issued, which he claimed were necessary to remedy “a grave national injustice” and start “a process of national reconciliation.”
Such a reconciliation is impossible when the president is willing to excuse political violence as long as it is perpetrated by his supporters. Despite Trump’s insistence that he expected people inspired by his stolen-election fantasy to do nothing but protest “peacefully and patriotically,” he is unwilling to draw that line in practice.
There are much better uses of presidential clemency, as Biden demonstrated by issuing a record number of commutations for nonviolent drug offenders, helping to ameliorate the damage done by the draconian policies he supported for most of his political career. Trump likewise has decried excessively severe drug sentences, which epitomize the sort of injustice he should address by using his clemency powers in the way the framers intended.
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