Dem
47
GOP
53
Since the 1970s, or so, Inauguration Day is a time when the pardons tend to fly fast and furious. The outgoing administration generally squeezes in its most controversial pardons during those last few hours, when attention is going to be muted by inauguration news. The incoming administration has often committed itself to immediate pardons of [X group or person unjustly charged/convicted/imprisoned].
Even with that expectation in mind, yesterday was unusual in terms of how... aggressively the pardon power was used by the two presidents. We'll start with Joe Biden, who commuted the sentence of Native American rights activist Leonard Peltier. Peltier has been in prison for just shy of half a century, having been convicted of the murder of two FBI agents in 1975, and has been a cause célèbre for nearly all of that time ("Free Leonard Peltier" bumper stickers were once a hot-ticket item). Now he will spend his remaining days under home confinement.
There was a time when the Peltier commutation would have been a massive, and extremely controversial, story. Not yesterday, however. It barely showed up on the radar, in large part because Biden also preemptively pardoned several members of his family (his siblings and their spouses), the entire 1/6 Committee and the witnesses who testified before them, Anthony Fauci, and former Joint Chiefs of Staff Chairman Mark Milley.
Before we continue, we will anticipate and answer a question that some readers are sure to have. The various folks who got pardons yesterday, and who issued public comments, were grateful to Biden. For example, Milley said:
My family and I are deeply grateful for the President's action today. After 43 years of faithful service in uniform to our Nation, protecting and defending the Constitution, I do not wish to spend whatever remaining time the Lord grants me fighting those who unjustly might seek retribution for perceived slights.
Although Donald Trump and many Republicans claimed otherwise yesterday, acceptance of/gratitude for a pardon does not carry with it an imputation of guilt. The Supreme Court has commented on this just one time, and it was an offhand comment in a decision over a century ago. Though that comment could be read as implying that acceptance equals guilt, it is not definitive. And there has been some amount of jurisprudence at the lower levels of the court system in which it was explicitly found that acceptance of a pardon does NOT imply guilt.
Nobody knows, at least not yet, exactly how Biden compiled the list that he compiled. Undoubtedly, all of the people he pardoned have been threatened with persecution and with prosecution by MAGAworld. However, the single most obvious target is surely former special counsel Jack Smith, who apparently did not get a pardon. Not far below Smith on the list is soon-to-be-former-AG Merrick Garland, who also apparently did not get a pardon. Nor did any of the judges who oversaw Trump cases. Aileen Cannon did not need one, but what about Juan Merchan and Arthur Engoron? It's possible that these folks did receive pardons, and we just don't know about it yet. But if they did not, it will be interesting to learn why they were excluded. Assuming we ever do learn, that is.
Moving along, once Trump was inaugurated, he got in on the pardon party, too, issuing pardons for the great majority of the people charged with, or convicted for, crimes related to the 1/6 insurrection. On one hand, most of the pardonees from yesterday had already served their sentences, so all the pardon does is remove a conviction from their criminal records. On the other hand, the pardons did include some dangerous and frightening people, including Proud Boys leader Enrique Tarrio and Oath Keepers founder Stewart Rhodes.
We certainly understand why both presidents made the choices they did. Biden had a finite amount of time to act, and had to speculate as to how serious Trump and his minions are about going after their "enemies." Obviously, Trump never did "lock her up" when it came to Hillary Clinton, and so maybe such threats would have again proven to be hot air. On the other hand, there were a lot more enemies this time, many of them with fewer financial and legal resources at their disposal than Clinton. Further, Trump has been given a rather freer hand by the Supreme Court. Surely the odds were (and maybe still are) better than 50/50 that he would make a move against an "enemy." That being the case, Biden swallowed hard and made the tough call.
As to Trump, he was painted into something of a corner. First, he continues to assert that what happened on January 6, 2021, was entirely lawful. His adoring, right-wing mediasphere is right with him on that point. Further, he promised, over and over, to pardon the 1/6 insurrectionists. These two things being the case, he had relatively little choice but to issue the pardons. And if he was going to do it anyhow, better to do it on a day full of news, when the pardon stories would get drowned out a bit.
Note, however, that just because we understand the pardons does not necessarily mean that we approve. Biden made a tough choice, but one that also cheapened the pardon power. When Trump's term ends in 2029, he will undoubtedly issue a whole raft of pardons to friends, allies, family members and the like, probably including himself. And there's no reason to think that this won't be standard operating procedure for all presidents going forward, at least while the MAGA movement is in effect.
As to Trump, the primary purpose of the pardon power is to allow for miscarriages of justice to be corrected. A secondary purpose is to give presidents a bargaining chip, in the event they are trying to bring an end to a rebellion or some other such crisis (indeed, the first ever presidential pardons were issued by George Washington, as part of a deal to get the leaders of the Whiskey Rebellion to stand down). Trump's pardons yesterday have nothing to do with either of these purposes. He just doesn't like that his supporters were punished for their illegal acts, and so decided to let them skate, because he could.
Finally, let us point out that because both sets of pardons were issued on the same day, and both sets were controversial, some folks are drawing an equivalency between them. This is a false equivalency. Biden's pardons may be problematic and concerning, but the people he pardoned are not violent, and are not convicted felons. Some of the people that Trump pardoned, by contrast, ARE violent, and many of them are convicted felons. There is no reason to think that Anthony Fauci or Mark Milley, pardon in hand, are going to turn around and do harm to people. There is every reason to think that Enrique Tarrio or Stewart Rhodes will do so. (Z)