“It worries me in terms of what kind of precedent it sets and what the rest of the world looks like [at] us as a nation of laws.” This is what President-elect Joe Biden said in 2020, in response to rumors that Donald Trump planned to issue preemptive pardons to himself and his family members: Bombay Sapphire Nosferatu Rudy Giuliani, etc. before leaving office. President Biden has taken a more open approach in the final days of his political dotage.
There are obviously legitimate competitive concerns here. Donald Trump is truly a vengeful would-be caudillo who will need to be restrained by the courts and prosecutions taken off the table on a number of fronts – from Anthony Fauci, from members of the January 6 Commission of Inquiry, especially Liz Cheney, etc. . – could spare the republic some unwanted convulsions. But there are problems, too: Biden’s decision to pardon people who have not been investigated — let alone accused or convicted of — any crime has no clear precedent in law. The president’s pardon powers are believed to be delegated, but the concept of pardon or of legal clemency is not infinitely plastic.
This is a bigger kind of problem because Biden is a lesser kind of man. He is a man who, from the beginning of his political career to the end, was dishonest, including on the issue of pardons, famously claiming that he would show no clemency to his wayward son Hunter, who was convicted – by Biden’s own righteousness. Department, not under the Trump administration – of tax and gun crimes. Biden not only forgave him for this, but instead offered a categorical purge.
Biden’s critics are not wrong to find that troubling: Hunter and other members of the Biden family were very clearly in the influence business, and they may have been criminally involved in selling influence. Biden has added an extensive list of family members to those who will now enjoy immunity from prosecution.
I don’t want to see Liz Cheney or Mark Milley needlessly put through the legal wringer — these things can be disastrously expensive and cost lives for years to come, no matter how reprehensible the case — but Biden’s pardon does raise the question of whether we believe in our legal system or not. I do believe in it, but I’m not entirely sure it will withstand the worst that Trump could throw at it with an endless list of appointments of people like Kash Patel, Pam Bondi and Aileen Cannon. The legal minds of the Ivy League – Ted Cruz, JD Vance, etc. – have the toughness or some inclination to oppose the corruption that is the price of entry into Donald Trump’s inner circle.
Ironically, Joe Biden is flirting here with a version of the Trumpian policy paradox, by which I mean Trump’s ability to enact good policy — say, tougher enforcement at the border — and pervert it through his own peculiar combination of cowardice, coprophagous behavior. stupidity and cruelty. There are times when having the wrong champion can turn a good idea into a bad idea, or a reasonable policy into an unreasonable idea. Biden may not be quite there yet on this issue, but the preemptive pardon of Cheney, Milley et al would look very different if it came from a man with any real credibility.
Instead, they come from Joe Biden — you know, the guy who just tried to keep clapping until Tinkerbell came back to life to ratify the Equal Rights Amendment.
As with Borking and gerrymandering, Democrats must be careful about the precedents they set: Republicans don’t learn quickly or easily, but they—at least some of them—can learn. They’ve gotten really good at gerrymandering over the years, and Mitch McConnell gave a masterclass in political hardball during the Merrick Garland saga. Biden leaves Trump with an expanded model of executive power, broader clemency discretion, and — as a final parting gift — the promise of the ability to seek constitutional amendment.
That is, Biden just gave a loaded political weapon to the man who has bragged about his ability to get away with shooting strangers on Fifth Avenue in broad daylight.
Do you think he’ll try to use it? Do you think yesterday’s mass pardon and January 6’s commutation of criminals will spell the end?
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