Immunity for all is a terrible precedent
Blanket prophylactic pardons would start a pardon war, and we would all lose.
President Biden is now considering so-called blanket pardons for people who have not yet been charged with any crimes, supposedly to protect them from Trump administration “retribution.” This is a terrible idea, for reasons I will lay out here, if it’s even legal at all, which, though I’m not a lawyer, I question.
If presidents had the power to issue blanket pardons for crimes not yet charged or committed, Donald Trump, at the end of his first term, would have pardoned himself and his consiglieri for all manner of things, real and politically motivated. For example, he could have pardoned himself for violating the Presidential Records Act, or for taking classified information (or failing to declassify it). Hell, he could have issued a blanked pardon for anything he hadn’t thought of, now or in the future. Trump did not issue any of that kind of pardon, though the idea of it had been tossed around in the media.
In 1974, President Gerald Ford pardoned Richard Nixon for crimes that had not yet been charged. Though other Watergate figures were prosecuted, some convicted and jailed, for their role in the scandal, prosecutors did not challenge Ford’s pardon. I don’t know how the Supreme Court would have ruled then, but I do know that today’s court would have sustained that pardon, based on the fact that it pardoned Nixon for acts committed in office, for which he may have enjoyed quite a bit of immunity. Add to that the sitting president’s imprimatur of pardon authority granted by the Constitution, and it’s a fair bet this was a done deal, though politically, it sunk Ford for doing it.
Even now, Donald Trump has petitioned Judge Juan Merchan, in New York state court, to dismiss his convictions on 34 felony counts for falsifying corporate records, based on acts committed in office, even though the crimes in question were largely committed before Trump was elected in 2016. Politically, it’s better for Merchan to honor the dismissal, as “retribution” is a real threat.
But let’s talk about Biden’s blanket pardons. From the New York Times:
“I think there are a lot of people who are coming into this next administration who are telling us who they are,” [Rep. James Clyburn of South Carolina] said in an interview on Thursday. “I’ve seen Kash Patel saying who he’s going after, and so why should we not believe them? And that’s what I said to the president’s staff: You all got to believe these people.”
He added: “I think it will be less than an honorable thing to do to leave this office and not do what you can to protect the integrity of their decision-making, especially when they were carrying out these responsibilities as patriots to this country, doing the things that are necessary in pursuit of a more perfect union.”
Clyburn: Prosecutions for thee, pardons for me.
See, all the cases against Donald Trump since 2021 have been, at heart, politically motivated. The purpose of the cases was to load up Trump to the point where he could not run in 2024, or if he could run at all, he could not win, because he was in jail, for instance. We know now, of course, none of that worked, and in fact it backfired. Jack Smith’s case yielded the immunity doctrine from the Supreme Court, the terrible effects of which have only begun to be tested.
Fani Willis’s state RICO case in Georgia yielded the famous mug shot, which Trump used for advertising, and nothing else. The main reason Manhattan DA Alvin Bragg’s case in New York succeeded is that Bragg is an effective district attorney. Willis is an incompetent and corrupt prosecutor, which is par for the course in Fulton County, Georgia. She recently botched the longest and possibly the most expensive case in state history, when rapper Young Thug was acquitted of RICO charges. She botched the Trump RICO case, hiring her lover as a special prosecutor, and now Superior Judge Robert McBurney has ordered her to turn over all records of possible collusion with federal prosecutor Jack Smith’s team to Judicial Watch, a conservative action group in Washington, D.C.
The Georgia case is dead, it’s as good as pardoned. And it was definitely politically motivated, regardless of the fact that Trump’s crime was mostly against members of his own party, attempting to force Gov. Brian Kemp to recall the legislature, and Secretary of State Brad Raffensperger to “find” 12,000 votes.
Jack Smith’s documents case should have been cut-and-dried, but a friendly federal judge delayed it to the point where it is also dead on the vine. And yes, that has political roots too. The first thing President Biden did in office was to revoke Trump’s clearance, and stop all classified briefings. Of course, I agreed with that action because Trump was unstable and he could have done any number of damaging things. Typically, wide latitude is granted to ex-presidents regarding classified documents and receiving briefings. Trump abused the privilege he was never granted. That case could have stopped Trump from running and winning, but again, it failed.
Now, for the very things the governments of several states and the federal Department of Justice attempted to do to Trump, Biden’s advisors are saying people in government need to be protected from Trump doing to them.
It’s a terrible idea, precisely because it’s political, and there’s no undoing a pardon. There will be a political backlash. For example, the last Republican governor to serve in New York was George Pataki, who left office in 2006. In 2022, Kathy Hochul beat Lee Zeldin (who is now Trump’s pick to run the EPA) by about 7 points. In 2024, Donald Trump won Nassau County and all of Long Island, and outperformed expectations in New York City. If Biden pardons Anthony Fauci, who was largely blamed for the excessive lockdowns and school closures in blue states (and in NYC), what will the backlash be?
One day, there could easily be another Republican in Albany, and that Republican could, say, issue a blanket pardon to Donald Trump and his family, overturning all the convictions against them and their company. That pardon could not be rescinded by a Democrat in office.
That’s really the whole point. If Trump is really going to go after Fauci et. al., once in office he could not rescind Biden’s blanket pardons, if he was actually going to go after them in the first place. But once blanket pardons are issued, they cannot be overturned. Why wouldn’t Trump blanket pardon all the J6 convicts? He says he will. But those were for crimes already committed. Why stop there? Why not pardon everyone he appoints to his cabinet for possible crimes committed in office or in the future? Really, that’s going to be Biden’s precedent if the blanket pardons go through now.
The effect of Biden’s blanket pardons, if he does this, is to start a pardon war, where the only losers are the institutions we trust to run the government. Political lawfare, in general, doesn’t work, and it should be obvious by now that it’s a dumb course to plot against a populist demagogue like Trump.
The law, as applied naturally, does work. I’ve seen political lawfare used at the local level, and it’s ugly. I won’t mention the people involved because the memories are still painful. Courts have overturned unfair and politically motivated convictions and cleared the records of those persecuted. For many of the things Trump was charged, he deserved them, but in reality, those charges stemmed from a desire to make Trump go away, and he wouldn’t. Now there may be retribution. But let the courts do their job.
A pardon war and blanket pardons for people who haven’t been charged is only going to incite Trump and others to do the same. And those pardons can’t be undone. If they can be undone, then all pardons are at risk. There is really no good outcome to blanket pardons.
The most likely outcome is that everyone will be immune. Presidents will simply issue blanket pardons to everyone in their administration and enjoy immunity for doing so. It will be like ancient Rome, with presidential caesars handing out the fasces representing imperial power. Lawfare would be dead, but replaced with something far worse.
Biden’s most patriotic act may be to simply leave things be, and let the system work. It might be broken, but not completely broken. Blanket pardons for crimes not committed or charged will accelerate the breakdown of our legal system, possibly beyond repair. That’s a bad move for Biden, or any president.
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I've been convinced that this ship sailed with John Roberts' immunity ruling. If the pardon power is unreviewable by SCOTUS and the legislature, OF COURSE Trump will use it to immunize those working for him who might run afoul of the laws on the books.
Here's his Vice President:
"'Fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people,' Mr. Vance said on a podcast."
"He continued."
"'Then when the courts stop you, stand before the country like Andrew Jackson did,' Mr. Vance said, citing a (possibly apocryphal) quotation long attributed to America’s seventh president, 'and say: ‘The chief justice has made his ruling. Now let him enforce it.’'"
"In his U-turning path from anti-Trump author to MAGA-approved Ohio senator and running mate, Mr. Vance has developed a reputation for being ideologically pliable — open-minded, supporters say; core-less, critics counter."
"But he has been unswerving in recent years in his assessment of how Republicans should carry themselves when they win: Use every available lever of state, even if that means testing the bounds of the constitutional system."[1]
The advantage of a pre-emptive pardon over nakedly ignoring a SCOTUS ruling is that it gives cover to folks in the legislature to throw up their hands, express disapproval, but do nothing as Presidents have the pardon power, not Congress.
Not only are we getting blanket pardons for everyone who worked in the Trump administration (or at least for the folks that part on good terms) this cycle, we're also going to finally get the self-pardon, as Trump clears himself from any remaining legal liability, should he live longer than his tenure in office.
Again, the fault for this isn't Joe Biden, or even Donald Trump. It's John Roberts and his refusal to lead the judicial branch of the gov't as a co-equal part of our system, zealously guarding its power by holding the other two branches in check.
[1] https://www.nytimes.com/2024/08/03/us/politics/jd-vance-donald-trump-2024-campaign.html?unlocked_article_code=1.fU4.pLt0.HSYVgMtQWRQW&smid=url-share
Not going to talk about pardons but something else that bothers me (still related to this article):
Similar to the "elections are only valid if the GOP wins" is "prosecutions involving politicians are only valid if brought by the GOP".
This article plays into that a bit, not on the elections side of things but on how any attempt to have held Trump accountable - no matter how deserved - is ultimately political in nature and thus challenges the validity of the prosecution.
This itself is part of our problem, and we have to get over the idea of charging politicians with crimes as being unusual - especially when such crimes are blatant.
It's a damn shame that so many buy into this standard.