“It concerns me in terms of what kind of precedent it sets and how the rest of the world looks [at] us as a nation of laws.” So said President-elect Joe Biden in 2020, responding to rumors that Donald Trump planned to issue preemptive pardons of himself, members of his family, Bombay Sapphire Nosferatu Rudy Giuliani, etc. before leaving office. President Biden, in the final days of his political dotage, has taken a rather more open-handed approach.
There are legitimate competing concerns here, of course. Donald Trump really is a vindictive would-be caudillo who is going to have to be constrained by the courts on any number of fronts, and taking prosecutions off the table—of Anthony Fauci, of members of the January 6 committee of investigation, notably Liz Cheney, etc.—might save the republic some unwanted convulsions. But there are problems, too: Biden’s decision to pardon people who have not been investigated—much less charged with or convicted of—any crime has no obvious precedent in law. The president’s pardon powers are understood to be plenipotentiary, but the concept of a pardon or of legal clemency is not infinitely plastic.
This is a bigger sort of problem because Biden is a lesser sort of man. He is a man who was dishonest from the beginning of his political career to the end of it, including in the matter of pardons, famously averring that he would not extend clemency to his wayward son, Hunter, who was convicted—by Biden’s own Justice Department, not under the Trump administration—of tax and gun crimes. Biden did not pardon him of these only but instead offered a categorical cleansing.
Biden’s critics are not wrong to find that troubling: Hunter and other members of the Biden family very plainly were in the influence-peddling business, and they may have been in the influence-peddling business in a way that was criminal. Biden has added an extensive list of family members to those who now will enjoy immunity from prosecution.
I do not wish to see Liz Cheney or Mark Milley put through the legal wringer needlessly—these things can be ruinously expensive and consume people’s lives for years, no matter how meretricious the case—but Biden’s pardons do raise the question of whether we believe in our legal system or do not. I do believe in it, but I am not entirely confident it would endure the worst that Trump might do to it with an endless list of appointments of people such as Kash Patel, Pam Bondi, and Aileen Cannon, nor am I confident that the great legal minds of the Ivy League—Ted Cruz, J.D. Vance, etc.—have the robustness or any inclination at all to resist the corruption that is the price of admission to Donald Trump’s circle.
Ironically, Joe Biden here is flirting with a version of the Trumpian policy paradox, by which I mean Trump’s ability to take a good policy—say, more stringent enforcement at the border—and to pervert it through his own peculiar combination of cowardice, coprophagous stupidity, and viciousness. There are times when having the wrong champion can turn a good idea into a bad one or a reasonable policy into an unreasonable one. Biden may not be quite all the way there in this matter, but the preemptive pardons of Cheney, Milley, et al. would look very different coming from a man with some genuine credibility.
Instead, they are coming 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 the matters of “Borking” and gerrymandering, Democrats should be careful about the precedents they set: Republicans do not learn quickly or easily, but they—some of them, anyway—can learn. They got very, very good at gerrymandering over the years, and Mitch McConnell gave a master class in political hardball during the Merrick Garland saga. Biden is leaving Trump with an expanded model of executive power, broader discretion in clemency, and—as a final parting gift—the promise of an ability to wish a constitutional amendment into existence.
Which is to say, Biden just gave a loaded political gun to the guy who has bragged about his ability to get away with shooting strangers on Fifth Avenue in broad daylight.
Do you reckon he’ll try to use it? Do you think yesterday’s mass pardons and commutations of January 6 criminals will be the end of it?
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