Pardon Me, Mister Presidents, This Is A Fine Pickle You Have Gotten Us Into …
I am not a constitutional attorney. However, I would love to play one on T.V. If given that role, I would argue to the President of the United States that the power to pardon is a double-edged weapon when used as a preemptive shield.
The U.S. Supreme Court validated the unlimited power of the president to pardon in its 1866 case Ex Party Garland. Three decades later they reaffirmed and clarified that a preemptive pardon is well within the president’s constitutional authority.
The devil, as they say, is in the details. And, it’s just these details that give us T.V. lawyers a reason to get up in the morning.
First, the Supremes have also ruled that acceptance of a presidential pardon is an admittance of guilt for the crimes for which the pardon is being granted. That is the setup for the second point. Up until President Gerald Ford pardoned the former President Richard Nixon, every other presidential pardon was granted for a specific crime for which the individual had been investigated, charged, or convicted. Ford’s ‘for any federal crime he may have committed’ was a first. Interestingly, the validity of such a blanket pardon for unspecified crimes has not been tested in the court. The constitution grants the president the power to pardon an individual for ‘every offense known to the law’. A preemptive pardon begs the questions, which crimes does the law know about and what constitutes knowledge - investigation, charge, conviction, or are unproven speculations enough?
This last assertion of knowledge seems to be the crux of the argument for preemptive pardons. Candidate Trump spouts accusations against the Biden family, lawmakers, and government employees. Former President Joe Biden grants a slew of preemptive pardons. All those who have been pardoned now face the decision to accept or reject the pardon.
To accept the pardon is acknowledgement of guilt of crimes. Which crimes? Yes, tell us, we are dying to know. Did the January 6th committee destroy the investigatory and evidentiary record in violation of House rules and federal law as Trump and House Republicans have claimed? Representative Adam Schiff’s acceptance of a pardon, if he does so, would be an admission that this is so. And if he wants to claim that the committee and him specifically did not commit these specific crimes he will then have to explain which crime he did commit and for which the pardon is applicable.
That is a tough, damned if you do damned if you don’t, position in which to put someone. A pickle, if you will. Thank you, President Biden.
A pardon such as the Biden preemptive pardons invite an ambitious, aggressive, and, frankly, angry, prosecutorial team to start an investigation on one or more of the pardon recipients to force them to come to court with pardon in hand, admit guilt, and ask the court for a cease and desist order. This would likely force a legal action testing the validity of the preemptive pardon. This puts the entire class of pardon recipients at risk, unnecessarily, I will add.
Oxygen is not the life blood of the political environment in Washington, D.C. No, its fuel is innuendo, accusation, rumor, and salacious speak. Down here on Main Street USA, ours is conspiracy theory.
The nation’s justice system, flawed as it might be, provides the means to investigate and, when warranted, adjudicate such innuendo, accusation, rumor, and conspiracy. I know, I am an idealist. Until recently, this was a system with rare instances of corruption. Hear me out. The accused had their day in court and based on the outcome could claim innocence or be branded as guilty. Either way, a statement of finality was possible.
The life that the presidential preemptive pardon recipients face is one in which adjudication has happened without investigation, presentation of evidence, and a ruling by a court of competent jurisdiction.
Good news for the political consultants, pundits, and future candidates. Thank you again, President Biden. We don’t have to wait for a lengthy court case. The Biden family was in collusion with the People’s Republic of China, used Joe Biden’s status to trade favors for money, and served as unregistered agents for foreign governments. Hunter Biden is guilty of all manner of deceit and debauchery, including sexual assault on a child. The January 6th Committee members are criminals. Good luck in your next campaigns. Anthony Fauci is guilty of contempt of congress, accepting bribes, running a biological weapons research facility, and intentionally releasing a weapon of mass destruction on the public. Not to mention the Beagles. You can see where this will lead.
Mr. Biden, these people had a better than fighting chance in the actual court system and in the court of public opinion. Not anymore. They are guilty - the Former President has said so. His statement that,“these pardons should not be mistaken as an acknowledgment that they engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense.”, is in direct conflict with the rulings of the U.S. Supreme Court. Sorry, former President Biden, you can’t have it both ways.
Tread cautiously into these waters, President Trump.