Biden must ignore pardon myths and protect Patel’s and Trump’s targets
"Patel issued unprecedented threats. Biden must respond.
Since President Joe Biden began seriously considering an amnesty for people at risk of retribution from President-elect Donald Trump and his FBI pick (who comes armed with an enemies list), the pearl clutching and myth-spinning about pardons have spread. Biden should pay attention to history and case law, not misinformed critics.
The first myth: A broad amnesty would unprecedented, an intrusion into the rule of law. That is categorically false. More than a dozen presidents dating back to George Washington have granted amnesty to a defined, large group of Americans. As legal scholar Frank O. Bowman III pointed out:
George Washington issued pardons in 1794 to defuse the lingering tensions of the defeated Whiskey Rebellion. President Andrew Johnson made extensive (and controversial) use of the pardon power to civilly rehabilitate former Confederates. A century later, Gerald Ford issued a conditional amnesty and Jimmy Carter a full pardon to Vietnam draft evaders.
Presidential amnesties for categories of people have been commonplace. After Washington, President John Adams issued a broad pardon for those involved in the Fries Rebellion in 1799 in Pennsylvania (i.e., prosecutions of “any person or persons by reason of their being concerned in the said insurrection”). With a small exception, President James Buchanan, for example, pardoned Brigham Young and his Mormon followers who had engaged in a conflict with the U.S. military. In the 19th century, Benjamin Harrison and Grover Clevelandalso issued pardons to Mormon polygamists.
The White House Historical Association recounts that presidents from Thomas Jefferson to Warren G. Harding granted amnesty to various groups of Americans — citizens convicted under the Alien and Sedition Acts for Jefferson, and 24 political prisoners (including Eugene V. Debs) for Harding.
Follow Jennifer Rubin
Moreover, the association explains, “As decided in Ex Parte Garland (1866), presidents may issue pardons at any time after the commission of a federal offense, even before federal charges have been filed or a sentence has been imposed.”)
What is entirely unique is that an incoming president and a would-be FBI director nominee have explicitly named people and groups (e.g., prosecutors) they want to go after. To meet that unique threat, Biden should issue amnesty to the most vulnerable group of Americans: witnesses against Trump whom Trump and Kash Patel have already threatened.
The second myth: Some people might not want amnesty. Again, this is not a valid reason to refuse to extend it to those who very much do want and need protection. Some individuals enjoy immunity from prosecution on other grounds so won’t need additional protection; they would be excluded from the amnesty. House members on the Jan. 6 committee immune under the speech and debate clause, along with and federal and state prosecutors operating under the color of law, almost certainly cannot be prosecuted.
But that leaves some ordinary Americans, primarily witnesses and those who provided material to courts, grand juries, Congress and federal investigators, to twist in the wind. It’s small comfort that such people would eventually be exonerated. Criminal trials and appeals can cost millions of dollars and ruin reputations as well as likely increase the physical threats many of these figures already face.
The third myth: Amnesty would not completely protect the recipients. It is correct that such an amnesty would not protect recipients from criminal investigation for future conduct, from civil suits or from IRS audits. It is an imperfect solution to the problem of a rogue, irresponsible president-elect empowering intended nominees to seek vengeance. However, by limiting the pardon to a discrete group of people, making clear this is essentially a witness protection program to insulate the recipients from Trump’s wrath, Biden can spare some conscientious citizens and alert the public to the dangers Trump and Patel pose.
The fourth myth: Accepting amnesty is an admission of guilt. This is false. The most recent case on the scope of pardons, 2021’s Lorance v. Commandant, held that the defendant’s acceptance of a full and unconditional presidential pardon did not amount to an admission of guilt, and therefore the defendant did not waive his habeas rights upon acceptingit.
Lorance also dealt with a common misperception concerning a Supreme Court case, 1915’s Burdick v. United States, which seemed to suggest that accepting a pardon constituted “a confession” of guilt. However, Lorance explained that that statement referred to how the pardon recipient might feel. In other words, though acceptance might make the recipient “look guilty” in the eyes of some, it does not make the recipient legally guilty.
Biden in his amnesty statement can underscore that acceptance is no admission of wrongdoing but rather confirmation that the incoming president poses extreme and unprecedented threats to political enemies — something indicative of an authoritarian regime, not a great democracy.
The fifth myth: This would open the door to pardon abuses by Trump and/or mar Biden’s legacy. The first is laughable given Trump’s pardon track record (e.g., Michael Flynn, Sheriff Joe Arpaio) and his plans to pardon those convicted of violent crimes on Jan. 6, 2021. He needs no excuse to flout democratic norms. (By the way, Biden might not have considered amnesty had not Trump recently repeated his threats and chosen Patel for FBI director with barely a whisper of complaint from Republicans. If Trump renounced revenge and found a fit nominee, none of this might be necessary.)
As for Biden, his Hunter Biden pardon statement explained that he acted because “raw politics has infected this process and it led to a miscarriage of justice.” It certainly follows that he should act to keep raw politics — unabashedly announced in advance — from leading to a miscarriage of justice.
If ordinary citizens face retribution for daring to testify against powerful bullies, few will do so. To preserve the justice system, to encourage people to provide evidence, Biden should grant them amnesty — in effect setting up a witness protection program. It is the least he can do for selfless Americans."
No comments:
Post a Comment