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PaperclipPerfector  4mo ago (text post)   32092 thread views

Culture War Roundup for the week of December 2, 2024

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Politico says that Biden’s staffers are allegedly pushing for preemptive unilateral pardons for controversial figures in order to “inoculate” them in preparation for Trump’s DOJ & FBI. There are some real eyebrow-raisers in this article, so forgive me for this block-quote:

The White House officials, however, are carefully weighing the extraordinary step of handing out blanket pardons to those who’ve committed no crimes, both because it could suggest impropriety, only fueling Trump’s criticisms, and because those offered preemptive pardons may reject them. The deliberations touch on pardoning those currently in office, elected and appointed, as well as former officials who’ve angered Trump and his loyalists.

Those who could face exposure include such members of Congress’ Jan. 6 Committee as Sen.-elect Adam Schiff (D-Calif.) and former GOP Rep. Liz Cheney of Wyoming. Trump has previously said Cheney “should go to Jail along with the rest of the Unselect Committee!” Also mentioned by Biden’s aides for a pardon is Anthony Fauci, the former head of the National Institute of Allergy and Infectious Diseases who became a lightning rod for criticism from the right during the Covid-19 pandemic.

The West Wing deliberations have been organized by White House counsel Ed Siskel but include a range of other aides, including chief of staff Jeff Zients. The president himself, who was intensely focused on his son’s pardon, has not been brought into the broader pardon discussions yet, according to people familiar with the deliberations.

The conversations were spurred by Trump’s repeated threats and quiet lobbying by congressional Democrats, though not by those seeking pardons themselves. “The beneficiaries know nothing,” one well-connected Democrat told me about those who could receive pardons.

Emphasis mine. It’s not really surprising that Biden wouldn’t be brought into these discussions given how isolated he has been said to be in these last weeks, but the fact that his staffers see an opportunity to extend his personal clemency for his son to a general pardoning of anyone Trump dislikes (including those that might have committed legitimate crimes, like Fauci) seems to me to be another attempt to just have one final ‘fuck you’ against Trump as lashed out from Biden’s lame duck period. As mentioned in the article, one of the major weighing concerns in actually doing this would be the fact that the very instance of such pardons would seem to be indicative of actual foul play, and to add on it would seem to be reminiscent of the pardons Trump gave out in his last weeks as President even as in those cases the pardons weren’t sweepingly preemptive as these would be.

The very fact that Fauci of all people might get a pardon, despite the fact that entire governmental agencies as seen in the House & Senate reports believe that some fuckery might have been going on with gain-of-function research, seems to me to be a huge mistake to make; his pardon if done would have to specifically make clear the timeframe in which that research was going on to clear him for it (if any foul play occurred during that timeframe) if that’s what the Biden administration believes Trump will prosecute him for. This is just one example of a possible pardon and its disastrous implications, too, notwithstanding the other rumors of Biden pardoning SBF or whomever else (which would also be another thing that could be explosive given conflict-of-interest).

Can someone explain how exactly a preemptive pardon works? I'm struggling to understand how a legal system would allow someone to be forgiven for a crime they haven't been charged or found guilty of yet?

The American Presidential pardon is a Constitutional authority, which does not have Constitutional restrictions requiring charging or guilt.

Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Note that pardons and reprieves are two different concepts here. A reprieve is probably closer to your concept, but the rule of law issue is the lack of relevant restrictions to it's use.

In the American political tradition, due to Constitutional supremacy, Constitutional authorities can only be checked by other constitutional authorities. In areas of shared jursidiction this allows contestation (i.e. the President is the only constitutional authority to be the Commander in Chief of the military, but the Legislature has the constitutional authority to regulate the military), but in areas without shared Constitutional jurisdiction the branch without Constitutional authorization cannot infringe on the constitutional authority of the branch with it.

In this case, the Constitution clearly demonstrates there is a limit (cases of impeachment), and even an alternative (Reprieves), which indicates that the authors considered the merits of limits, but the limit of 'must be charged or found guilty' is not one of them. As the President doesn't have a constitutional limit on pardons, and the Constitution does not allow Congress to restrict pardons, there is no legal basis for restricting the execution of the highest law's explicit authority.

I don’t think the crime needs to be charged to be pardoned, but I do think it needs to be specified. Look at the text of the constitution, it refers to the pardoning of offenses, not the pardoning of persons. You should have to specify the offense.

It doesn't say the president has to state the particular offenses in question. And so he doesn't.

"Which offenses?" "All of them." Seems possible given how simple that statement in the Constitution is.

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