By Kevin D. Williamson
Tuesday, January 21, 2025
“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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