PRESIDENTIAL PARDONS
Privilege Beyond Kings
Background
The last few presidents went overboard with pardons, alerting us to the how wide-ranging these pardons could be. It isn’t just pardoning convicted felons. But how did this right end up in the Constitution? Governments have long given this option to leaders, but our pardon power came from English traditions, dating back to their kings. Mostly used to give alternatives or to cancel a death sentence, we now see that the way it is implemented in the US is far more sweeping, giving rise to the concerns many have over the latest round.
In the Federalist Papers, Alexander Hamilton defended pardons, asking that they be “as little as possible fettered or embarrassed to ensure easy access to exceptions in favor of unfortunate guilt.” He felt having a single person with this power would lead to more acts of mercy. An interesting note is that Virginia delegate to the Convention was against this privilege because “he might frequently pardon crimes which were advised by himself, which would eventually establish a monarchy and destroy the republic.”
Early presidents availed themselves of this right. And yet, until relatively recently (in my lifetime), most pardons weren’t subject to question or disdain. One exception might be when Andrew Johnson pardoned Jefferson Davis, former president of the Confederacy. Gerald Ford’s pardon of Nixon came close to the egregious abuse of this power that we see today, as Nixon was not indicted or convicted; the period covered was only ’69-’74, never covering any future crime.
Today
In most cases, the Justice Department requires that petitions for pardon have to wait five years after conviction or release, and the person involved has to show that they will lead a “responsible and productive life for a significant period” after this point. But this does not restrict the President from acting outside those limits. Nixon’s pardon, which does not fall in those guidelines, was never challenged, and the Supreme Court has never really had to examine the pardon privilege. The only time they really looked at it was to see if it was allowable for a convict to reject the pardon.
While many pardons have been highly questionable, going to people who gave the President a lot of money or otherwise supported his political career, we now find ourselves watching pardons given to protect the exiting President. While saying he would not pardon Hunter, Joe Biden turned around and did exactly that, most likely to avoid his own prosecution. In reality, as Judge Robert Hur ruled, “Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen," Hur wrote. "We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory," investigators wrote. In other words, he was already off the hook, at least for that crime.
Biden’s pardons included letting all his friends, family and associates off the hook for past, present and future crimes, whether or not they had ever been indicted for any—a get-out-of-jail free card. This is unprecedented. The crimes Hunter committed have landed many people in prison; why should he be spared? He was convicted, justifiably.
Let’s look at a few others. We all suffered under the kingly reign of disease control czar Anthony Fauci. His denial of Chinese involvement, his refusal to approve any treatment for Covid other than the unproven, overpriced drugs he financially benefitted from, his mask obsession and his damaging shutdowns deserved at least taking away his pension. His policies caused doctors to lose their licenses; he smeared and tried to censor those who had successfully found treatments and who had really proved the Wuhan origin of the virus, such as the Great Barrington Declaration signatories.
How about Adam Schiff (D-CA) who wasted money and time trying to destroy Donald Trump with his purported criminal conspiracy theories citing that those foreign powers had paid to put an agent in the White House. As a member of the House Intelligence committee, he was able to leak classified documents that did not prove anything about Russian collusion, despite claiming to have a “smoking gun.”
The former chairman of the Joint Chiefs of Staff, Mark Milley, got a pardon too. And yet, his incompetence in the Afghanistan pullout was horrifying. Milley also created a fantasy of President Donald Trump nuking his “enemies” to save his bid. In fact, Trump has been more judicious about his use of the military than some.
Pardoning the January 6th taskforce was stupid; it almost certainly implied that this was an unlawful attack on an elected president which needed a pardon, or the members might have been criminally cited.
A Few Things to Remember
Many people believe that if someone needs a pardon this implies that they are guilty of something. If that something is civil or simply not a federal crime, every one of those pardoned can be tried at a lower level. It might not happen, but one has to ask the question—why did so many of his family members and political supporters need a pardon? If he believed Milley and Fauci had done an excellent job, where was the need? It is one thing to pardon someone who has been convicted and/or imprisoned. It’s another to do this pre-emptively as he did so many times.
But more important, Biden has opened a floodgate for the next presidents. As we saw with recent presidents exercising their power, the next one feels able to stretch things even farther.
It’s time for a Constitutional Amendment redefining the pardon so that never again can a president act in this manner. Now, we just have to hope Congress gets the message.
