You Can’t Pardon America’s Way Out of Trump’s Assault on Rule of Law
The NYT has matched Jonathan Martin’s reporting that Biden’s aides are considering pardoning some subset of the people who will be targeted by Trump.
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.
Smart lefty commentators are embracing the concept.
With the possible exception of Mark Milley, I think this is an exceedingly stupid idea. It’s the kind of magical pony thinking that led people to demand Merrick Garland, with no effort from them, make Trump go away, thereby ceding the ground for Trump to claim he was prosecuted in a witch hunt.
And it won’t work.
Biden’s pardon won’t even save Hunter Biden
Start with the fact that Biden’s pardon won’t even save his own son.
Sure, it’ll save him from going to prison for the crimes for which he was convicted.
But it might not even insulate him and his team from further harassment. That’s true, first of all, because prosecutors have continued to pursue an investigation — no doubt facilitated by the House investigation into Hunter — into whether Kevin Morris’ support for Hunter in 2020, as he was trying to sustain sobriety, amounted to a campaign benefit for Joe Biden.
While pursuing the false allegations of foreign-influence wrongdoing led nowhere, the Special Counsel seems to have given in to other demands to expand his investigation of Hunter, his family, and those close to them. Throughout 2024, Special Counsel prosecutors have sought information about financial support Hunter received in 2020 and 2021 around the time of the 2020 presidential election and questioned whether such support could be deemed improper political contributions. This latest inquiry is the exact demand that the disgruntled IRS agents alluded to in their statements to congressional committees and the media.92 The results of this investigation expanding—the theory of which was rejected in the case of former Senator John Edwards93—are nevertheless likely to be a focal point of any final report the Special Counsel prepares for Congress, which will no doubt result in more demands for baseless charges against Hunter.
Nothing in Hunter’s pardon protects Morris or, through him, Abbe Lowell. Indeed, I expect this prong of the investigation is one reason prosecutors fought to terminate Hunter’s prosecution, rather than dismiss the indictment: because it would make it easier to use the prosecution to show some benefit.
Plus, as far as I know, David Weiss will still have his Special Counsel report to write up, and because Alexander Smirnov has his existing false statement charge and a new tax indictment ahead of him (to say nothing of an appeal of David Weiss’ Special Counsel appointment under the same argument via which Trump got his own documents case dismissed), the report will go to Pam Bondi and not Merrick Garland. So Hunter can expect to be dirtied up some more in that report.
More importantly, House Republicans have already floated bringing Hunter in for more testimony. In recent years, the House GOP has spun entirely free of gravity and facts, so it would (and did, particularly in their referral of Hunter’s uncle Jim) take little to refer Hunter for prosecution on false statements.
Nothing about Hunter’s pardon will prevent Republicans from inventing new crimes going forward.
That’s true of anyone on a list. If you pardon Anthony Fauci, nothing prevents Congress from calling him to testify again to invent some new reason to prosecute him.
There are too many targets to play whack-a-mole
Another reason pardoning your way out of this problem won’t work is because there is an infinite supply of potential targets, but a finite attention span with which to protect them. As I noted, the Kash Patel enemies list on which the discussion is focused is dated; it excludes three of the names — Jack Smith, Liz Cheney, and (even!) Anthony Fauci — that, per NYT, are at the center of the discussion (Adam Schiff and Mark Milley are on there). Mike Flynn has his own list. Random mobs of MAGAts also have their own.
Olivia Troye, Kash’s current focus, is (as far as I know) on none of them.
Much of this discussion simply disappears most of the people who’ve already gone though this, who will continue to be targeted so long as there’s utility to it.
Importantly, the more invisible or easily dehumanized targets are, the easier they will be to take down.
Jack Smith, Liz Cheney, Anthony Fauci, Adam Schiff, Mark Milley? They’re all people that some very powerful people will fight for, or at the very least be discomforted as they watch passively. Those would be the easiest cases to defend.
There are legal privileges to protect
One reason, for example, that Adam Schiff”s targeting might discomfort those who absolutely loathe him is because, to punish him for his imagined sin — speaking openly of Trump’s “collusion” with Russia in 2016 and daring to pursue him in impeachment after impeachment — would solidly be protected by Speech and Debate. The same is true of Liz Cheney.
To go after Adam Schiff for his imagined crimes, you’d have to rely on litigation approaches that might make — say — Mitch McConnell queasy.
Which may be one reason Schiff told Politico he thinks the whole idea is unnecessary.
“I would urge the president not to do that,” Schiff said. “I think it would seem defensive and unnecessary.”
Plus, the opinion via which Scott Perry protected many of the communications from his phone was signed by Karen Henderson, Greg Katsas, and Neomi Rao, the latter of whom are Trump appointees.
The same is true for Jack Smith (or Jay Bratt, whom Republicans also want to target). As prosecutors, they have broad immunity for their actions. That may have its drawbacks. But a whole lot of people who would be reporting to Pam Bondi have a lot invested in defending them.
If you pardon the easiest, highest profile, easily defended targets, you’ll leave weaker targets unprotected.
It would forestall the long overdue defense of rule of law
There’s this fantasy — assisted by shoddy legacy media coverage — that this kind of retaliation didn’t happen in the first Trump Administration.
Peter Strzok and Lisa Page would beg to differ with you.
Andrew McCabe would beg to differ with you.
Marie Yovanovitch would beg to differ with you.
Alexander Vindman would beg to differ with you.
Michael Cohen would beg to differ with you.
Michael Sussmann would beg to differ with you.
Igor Danchenko would beg to differ with you.
Dis- and misinformation researchers would beg to differ with you.
51 spooks who exercised their First Amendment rights would beg to differ with you.
John Bolton would beg to differ with you.
Hunter Biden would beg to differ with you.
Some of these cases got a lot of attention. Michael Cohen has done a superb job of making himself the center of attention; he knows what he’s dealing with. Many got the wrong kind of attention; certain outlets sent rabid packs of 20 journalists to cover the Hunter Biden legal case, without sending a single journalist interested in rule of law.
But Trump’s efforts have been most successful when they didn’t, when all the same people screaming we need to do pardons looked away.
What this moment requires is not a magical pony, some gimmick that will protect the strongest targets while ceding moral high ground, but a return to the work of actually defending rule of law day to day, especially those who are easy to isolate or demonize. This moment also requires actual journalism. I shouldn’t be the only one who cares about Hunter Biden’s due process rights more than his ickiness.
And yes, I realize that means that people will continue to get hurt, just as they’ve been getting hurt going back to 2017. Trust me, like many other people, I’m doing my own risk mitigation for the days ahead.
Pardoning the highest profile likely current targets of Trump capitulates to Trump’s narrative that there is no rule of law, there’s just one party against another. Instead defending the conduct of the people Trump targets takes a lot more work, a lot more courage. But without that work, Trump has won the fight.
Mark Milley’s defense of the Constitution
For most of the targets in question, the story you’d tell would be precisely the one Trump wants you to tell. If you pardon Cheney and Schiff because they investigated Trump, for example, you condone his narrative that that’s a crime.
It’s not.
If you pardon Fauci because he made difficult health insurance according to the best — albeit imperfect — science, you condone the pack of cranks Trump plans to install in every health-related agency.
But Mark Milley is different.
He’s different because the reason why Republicans would target him is that he upheld the Constitution, rather than Trump.
He’s different because he did something crucial — reaching out to his counterparts overseas to deescalate threats of nuclear catastrophe. Republicans want to spin that vital work as treason.
He’s different because a prosecution of Milley will be used as an excuse to deprofessionalize the military officer corps.
And he’s different because Trump might try to target Milley via military justice or might seek penalties not on the table for his other targets.
I don’t know if Milley wants that protection or if, like Schiff, he would prefer to defend his own actions. That’s his business.
The point though is nothing Biden can do will eliminate the risk that Trump will keep doing what he has been doing for eight years. Someone or someones will be that target, and imagining we can make that risk go away, it’ll only lead people to look away again instead of giving the attention the focus that it has lacked.
If we don’t find the solution to that problem, if we seek instead a quick fix, then it’ll get continually harder to defend rule of law as Trump stacks the courts and guts the guardrails at DOJ.
You can’t pardon your way out of Trump’s attack on rule of law. It’s going to take much harder work than that.
Update: Ian Millhiser makes the same argument about the inefficacy of pardons, noting as well that pardons can’t prevent lawsuits or state retribution.
Excellent article. It’s difficult for many people to fathom how few restraints there are on the President (if they choose not to follow norms). The next administration is going to be terrible in a Coal Chamber kind of way, and some will have even more difficulty with that.
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Wow, another outstanding piece today!
You are on a roll today with a lot on your mind!
Please keep on keeping on!
Some of Donnie’s people are still after Vindman – they’re calling him a traitor.
Rep.-elect Eugene Vindman might be the next in the family to stand up and say “Here, right matters.” Perhaps even amended a bit: “Here, right *still* matters.”
And with the House GOP operating in gravity-free, fact-free mode, Eugene could become quite the voice in opposing whatever nonsense they spin up. It will be interesting to see which committees he lands on.
I agree that pardons are insufficient to protect the rule of law and do not provide total freedom from all forms of harassment.
But I do think pardons for predictable victims of Trump’s revenge and retribution campaign will eliminate some of the worst consequences (like going to jail and enormous legal fees) for some individuals. And, while there is a huge supply of potential victims for the revenge and retribution campaign, there is a more limited supply of high profile victims.
I’m concerned about the precedent of pre-emptive pardons. But I think the precedential value can be limited by pardon language that highlights the unprecedented and unconstitutional threats articulated by Trump, Patel and others. It is clear that the mainstream media will be in a frenzy of wringing hands unless the extreme threats are spelled out.
In short, pre-emptive pardons may be necessary but not sufficient.
LOLOL
You didn’t read my piece. Not at all.
There is NOTHING that pardoning someone does to prevent the GOP to invent the same crime they would already use to go after them. It’s useless.
And the targets will *still* be forced to hire expensive lawyers to defend them, for weeks and months and perhaps years.
There’s precedent — not exactly parallel but same in substance — to tell us you are right. The gummint spent over 20 years trying to make political communism a crime and mostly got egg on its face, especially in failed spy prosecutions.
The gummint did not give up, though, and eventually managed to massage the Smith Act into the instrument it wanted.
And both parties did it.
Unless a pardon is effective from “the beginning of time to the end of the world”, which opens a host of problems in itself
Since pardons only cover crimes that occur before the effective date and time of the pardon, that’s a non-starter.
I read your piece. I just don’t totally agree with it.
I would ask the potential recipients if they want a pardon. Contributing to their legal defense fund might be more effective.
You don’t agree that pardoning people for a non-crime will do nothing to prevent Republicans from inventing a new post=pardon non-crime to go after them with, leading to the same legal expenses and concerns? It’s already happening with Hunter.
re EW at 1:36pm:
And also giving Trump cover for issuing a grand pardon of everyone in his administration at 11:45am on Jan 20, 2029.
This is no way to run a democracy.
I don’t disagree.
But I think the people on the enemies list should be given the opportunity to accept or reject a pardon.
I agree that the MAGA party will not let a pardon stop their jihad. They are a lawless bunch. I think they are lawless enough to ignore court orders or verdicts, even those from the Supreme Court.
I think you’re half-right.
You’re correct that pardoning anyone Trump might want to go after is, at best, temporarily useful, and it doesn’t protect people from civil suits or use of state law (as opposed to federal.) However, I think doing this would make it much harder for Trump/GOP fanatics to go after people, particularly if the pardons were very wide-ranging in both their specific scopes and the people they included (ideally just about everyone in the US who’s not under active investigation.)
You’re also correct that journalists have done a piss-poor job of dealing with the GOP’s bullshit. (If I win the lottery I’m gonna start a no-bullshit online news service and offer you whatever high office you believe would do the most good!)
Where I think you’re wrong is in the general politics of the whole thing. Such pardons would be a very powerful message to everyone that opposing Trump was not wrong, and that a just system will not even think of prosecuting people like Liz Cheney or Mark Milley. It would constitute a huge endorsement of the idea that the rule of law should ideally continue and that fighting back against injustice and poor behavior is encouraged by the American political system.
In short, it’s not a ‘quick fix,’ rather it’s a powerful message about the limits we expect an American politician to operate under and the positive possibility of fighting back against injustice.
No. It says that opposing Trump is a crime.
Adding, the place to make the argument that it’s NOT a crime is with evidence.
I don’t need evidence to say that opposing a politician is not a crime. That’s what the First Amendment is for, and tons of precedent supports this. I think the big deal here would be how it’s presented. If Joe quietly pardons people it won’t change much. If he makes a big speech and talks about the importance of free speech and discusses clearly what Trump has promised to do that would make a difference. But a gigantic pardon (ideally for everyone who isn’t currently being investigated) is a huge obstacle. And if Mark Milley, for example, is in court and explains that he opposed Trump because the guy is scum and the orders he gave were illegal, that doesn’t help the other side much, does it?
“Such pardons would be a very powerful message to everyone that opposing Trump was not wrong”
I think (in agreement with Marcy) that you are deeply mistaken about this. Acceptance of a pardon implies acknowledgement of guilt, in the court of public opinion at the very least. Trump’s faithful will immediately crow that they were right, that Smith and Garland and Fauci and [insert list here] MUST have been doing something illegal, or else why would they need to be pardoned? A certain number of anti-Trump Republicans and independents – the very people whose support we need for the years ahead – will readily buy into this framing as well.
In short, ‘Damned if you do, damned if you don’t’. Sorry to say that sounds about right.
I think this is right. I mean, if the thought that drives the impulse to pardon is to spare innocent people from being victimized by the Trump vandals and loonies, that ship done sailed, and a pardon from Joe will be meaningless. What MIGHT give the vandals pause, though, is bringing a few high-profile cases where the facts (and a vigorous defense) hand them a resounding public defeat. Not sure any of the maggots are capable of being humiliated in this way, but one can hope.
I am personally assuming that it will be very difficult for Patel, Bondi, et. al. to get indictments approved by a grand jury in the first place. It’s possible that I am overly optimistic on this point. (FWIW: IANAL.)
We saw how well that worked with the documents case and the January 6th case.
“Trump’s faithful will immediately crow that they were right, that Smith and Garland and Fauci and [insert list here] MUST have been doing something illegal, or else why would they need to be pardoned?”
Who cares what they crow? Madge Greene, Matt Gaetz, and several other of the MAGAts all asked for pardons and you could barely hear the crickets.
I think it’s a problem too to overlook that a pardon waives Fifth Amendment protections. All the “enemies list” will be called to testify before a House committee and will have to answer questions. If their answers do not match what Bannon’s podcast, Alex Jones’ latest screed, or FOX News ‘reported’ second-hand from Newsmax, then the Committee would try to refer such persons for “perjury” as a way to criminally harass people [ambiguity intended].
I think your best argument, and I want to emphasize it by repeating it, is that the pardons would endorse Trump’s story.
We aren’t getting through this without a fight. We have to be involved. We have to ask ourselves what would get us out of our chairs and into the street. You can’t have a democracy without fighting to keep it. And fights involve pain. For us. Clearly the plan is for more pain for our opponent than for us, but one cannot expect to be untouched.
In Tim Snyder’s class on the history of Ukraine, there is a moment where a guest lecturer is discussing the Maidan (a revolutionary movement that pushed out Yanukovych. Yanukovych tried to intimidate some student protesters by sending thugs to beat them up in the middle of the night, figuring their parents would prohibit them from returning. Instead, the parents joined them. One student, when asked what his mother thought, said, “My mother is making Molotov cocktails”.
We need to be ready. We didn’t start this fight. Nevertheless we are in it. If some of these people need contributions to their defense funds, I’m for it.
Recent examples like the Maidan uprising and the response to the South Korean declaration of martial law both had fairly fresh memories of coups and repressions to fuel the response. I doubt there are enough Americans willing to hit the streets to prevent the ongoing shift to a MAGA oligopoly. Marcy is right – our democracy will either hold or fall by reinforcing the rule of law, not by adopting Republican tactics. Disinformation and media dumbdown have to be effectively addressed. Bluesky is a step in the right direction.
If you pardon Fauci because he made difficult health insurance according to the best — albeit imperfect — science, you condone the pack of cranks Trump plans to install in every health-related agency.
Was this supposed to be “difficult health decisions”?
Otherwise, great article. Our civil and criminal justice systems assumes people will operate in good faith. If they don’t, they can inflict all kinds of misery, even if they don’t get convictions.
Just ask Sussman.
This is a great article, and once again Dr. Wheeler has pointed out something that should be obvious, but that the political commentariat is getting totally wrong.
You can’t defend Rule of Law by trying to pardon people in advance—a pardon is about showing mercy after due process has been allowed to do its thing. To prevent the corruption of that process, journalists and other individuals have to dig into and shine light on every step of the process and reveal the corruption, and they have to explain it in terms that ordinary Americans can understand. Unfortunately this is difficult and time-consuming work.
We saw over the Hunter Biden gun trial that almost no journalists were interested in, and capable of, getting to the actual truth about inapropriate politicization of those cases and explaining how dangerous it was to Americans. Now we’re about to see 4+ years of that kind of abuse of gov’t power, on steroids. Will Americans notice? Will they understand what they see? Will any good journalists be able to explain it to them?
Over at TNR, Greg Sargent argues that media is going to be a primary target for MAGA harassment and retribution. I hope they try to do good journalism during MAGA Term 2, instead of just keeping their heads down.
I guess I should have attributed that idea that media will be a primary target, to Matt Gertz (who Sargent was interviewing).
Here’s the part of their discussion that I was referring to:
Personally, if I was on Trump’s ****-list, I would accept all means of protection, no matter how imperfect. Make them invent new charges. Take the 5th if subpoenaed. Make it hard on them.
But yes, we all need to do the hard work of defending the rule of law.
Folks looking for preemptive pardons aren’t wishing for a magic pony — they’re wishing for a herd of them.
And, most critically, Marcy is right: pardons like these would do little to protect these folks from harassment, impoverishment, and (perhaps) violence.
I agree with the overall gist of this post but must push back on this assertion:
“To go after Adam Schiff for his imagined crimes, you’d have to rely on litigation approaches that might make — say — Mitch McConnell queasy.”
Trump went after Mitch’s wife Elaine Chao in a very visible and overtly racist way and Mitch said absolutely nothing.
That’s just but one example — albeit the most close-to-home one — of Mitch’s multiples of mediocre mendacity in response to Trump. Just like every other Republican who bent their knee, he is never going to show any backbone, and we need to stop pretending otherwise.
Maybe what’s needed is a committee raising a whole lot of money to defend people that the Trump administration targets; a lot of money. If Trump’s targets, even down to the least and the littlest, can count on a legal defense, my guess would be that while the prosecutions would not stop, there would be (likely) a string of court defeats for Team Trump, along with a single voice to publicize the cases, and keep them front and centre in the news cycle.
Just spitballin’ here.
I’m on board with this. I would contribute. Every loss would make Trump look weaker, and he’d start making excuses for not pushing things. There’s also possibility of bringing defamation suits against Trump and Co.
A lot of these potential Patel targets have money, and connections, and all kinds of resources.
I’m not saying that they won’t need some help but I think the best use of the general public’s help with financial (and other) resources are the targets that aren’t public figures. Mass deportations are on the near horizon, and grassroots protesters (ie. “regular people”) are gonna need a lot more immediate help with resources.
My thought along those lines is: Isn’t it time for the country’s billionaires — beneficiaries of every privilege and immunity this country offers — to announce publicly that they will bankroll the legal defense of people the Administration harasses? More laudable than having your name on yet another building.
I’ve had in the back of my mind for some time, some sort of nationwide GoFundMe to fund legal defense for Trump’s, and his lackeys’, victims. If Baby Elon and the rest of the rightward oligarchs are willing to endlessly fund frivolous lawsuits as a way of breaking the Left (or breaking decency, as the case may be) we’re going to have to come up with something to fund appropriate legal responses. Left-leaning billionaires (assuming there are some) might well be sources of funds for such a thing, but I’m afraid the rest of us will have to bear the principal burden–yet another ‘substack subscription’ we send money to, only this time in defense of democracy. I for one am down with that.
Not that Marcy and others need my 2 cents worth, to establish that the magical pony pardons are likely to be ineffective, but also represents a horrible idea for a Democratic Republic based on the Rule of Law; but I have a couple of thoughts to add to the discussion, fwiw.
1 Pardons and commutations are derived from the Perogative of Mercy. That is to say, a step additional to the processes of law and its safeguards, to protect the recipient from penalties unjust in the particular known circumstances.
2 The intent of the advocates of magic pony pardons is to refashion the pardon as a device to confer broad immunity from both prosecution and investigation for crimes imagined during a broad period specified.
3 So it is intended to function as
i a retrospective
ii declaration of innocence
iii and immunity from prosecution
iv for any crime imaginable by their political enemies
A sort of time-travelling Carte Blance –
“That which *was done, *was done, *as if pursuant to my authority as President to delegate and command such a thing to *have been done in my name.”
4 This is beyond what Dumas imagined Cardinal Richelieu would have done, though I suppose Dumas would have had his fictional version of the Eminence Grise, falsify and backdate the signature on a Carte Blanche, to achieve the same effect, if a plot twist had so required.
5 A horrible contrivance in a fictional history of absolute Monarchy is no model for a Democracy.
Hadn’t thought of the Dumas analog, but it’s a good fit, and a good reason not to.
I think in some ways this is a matter, like so much in politics, of ‘not what you do, but how you do it.’ Pardon everyone – I mean literally everyone – who’s not currently under investigation and it either succeeds or fails depending on the myth Biden would/wouldn’t build around this gesture. The right speech (and right support*) seals the action as an appropriate attack on Trump’s dictatorial tendency. The wrong speech makes it seem like complete nonsense. But it’s possible to do this correctly if everyone on the Democratic side is determined to do so.
If there’s a real argument against pardoning everyone it’s that the Democrats don’t have a chance in Hell of executing the attack correctly!
The real arguments are
1 it is wrong in principle.
2 any contrivance of the pardon power attempting to effect the supposedly desirable objective, would hand a weapon to authoritarians to insulate their enablers from righteous accountability, both propagandistically and as a route map for conferring immunity and impunity.
3 It puts a litigation target on the backs of people you are trying to protect and creates a vehicle for vexatious litigation against them.
Every strategy has it’s good and bad points, but I’ll address your specific arguments.
1.) It’s not wrong to attempt to insulate those who are innocent of any crime against the horrible expense and stress of a criminal trial. This is, in fact, a moral thing to do.
2.) Pardon power already gives Trump the ability to insulate his followers from accountability, at least where the Federal courts are concerned. Trump and his followers already know this, and will happily use it regardless of what Biden does. At best Biden pardoning people gives them an excuse for what they’re going to do (and have already done – pardoning Flynn, for example.)
3.) Do you really think Biden’s actions in either direction will keep fascists from trying to hurt people via the courts? You can’t possibly be so naive.
The background to the problem we’re addressing is this:
First, we’ve gotten to our present pass because people have been unwilling to (and heavily propagandized against, by both parties) hold the Republican crooks to account, starting with Nixon and moving forward through both Bushes and Trump. Had prompt, effective action been taken against all these people we’d be in much better shape today.
Second: We’ve also come to the present pass because when the Republicans do something legal-but-shitty the Democrats don’t ever retaliate. For example, if after Moscow Mitch refused to allow a vote on Merrick Garland Obama had waited until the Senate recessed in January of 2017 and recess-appointed the most Liberal candidate imaginable to the Supreme Court, that would have given the U.S. two years of a pretty-liberal majority on the court, and every time the court made a decision that made conservative’s blood boil they’d remember they could have had a moderate Republican on the court, who would have sided with Roberts, Alito, etc., at least part of the time. Do that kind of thing often-enough and the lessons get learned. But Democrats refuse to kick the Republicans even when they badly deserve it.
The argument about not pre-pardoning people like Liz Cheney (or EVERYONE who’s not currently under investigation) is one more propagandistic attack against the idea the Democrats should do stuff that’s effective and I’m sick of that particular propaganda. Note that I’m not arguing that Democrats should do anything immoral, just that they shouldn’t let Republicans get away with their awful shit.
Troutwaxer
December 9, 2024 at 10:44 am
As a person with a serious heart condition I have slowly considered how best to respond.
l’ll keep it short.
I accept your good faith and good intentions.
I note your claim to
“address your specific arguments.
1.) It’s not wrong to attempt to insulate those who are innocent of any crime against the horrible expense and stress of a criminal trial. This is, in fact, a moral thing to do.”
This is not an argument based in sound moral, ethical, legal, or constitutional reasoning.
It may be ‘moral’ to ‘want to’ ‘protect others’ from constitutional abuses and vexatious investigations and litigation.
But such good intentions DO NOT convert any response you imagine might be effective, into a principled position achieved by adequate moral ethical legal and constitutional reasoning.
It is simply magical thinking spangled with saccharine sprinkles.
And very very far away from Legal Realism.
Unfortunately the same goes for the rest of your reply.
Troutwaxer
December 9, 2024 at 10:44 am
#2
Your final paragraph concerned as it is with rebutting —-
“not pre-pardoning people like Liz Cheney”—
serves to demonstrate a weak attachment to intellectual rigor.
Liz Cheney is protected by Speech&Debate either directly or derivatively for her J6 Committee work, and explanations of it and its consequences.
You have not acknowledged that; nor have you considered what if any gaps in that protection may need to be filled by some other means; nor whether a pardon contrivance would afford any such means.
Yeah, because the AG’s office under Trump is totally gonna respect the Speech and Debate clause. (One of the arguments for Biden pardoning everyone is that it (to some degree) prevents the Republicans from going after people by violating the Constitution.)
Troutwaxer
December 10, 2024 at 9:50 am
#3
“Yeah, because the AG’s office under Trump is totally gonna respect the Speech and Debate clause”
Have you replied off the cuff or does this represent the product of some thought of any kind?
Let us assume that the DC District Court in the first instance, are inclined towards avoiding the Constitution and jurisprudence on Speech and Debate, and say, allow the FBI to obtain and execute warrants and subpoenas, and to convene a grand jury to consider eg a conspiracy by Congress persons to initiate and conduct the J 6 investigation and hearing.
The FBI would have in view Congress persons and All their staff
If the S&D clause is so readily obviated, whither any contrived pardon?
Especially where there is the historical understanding that acceptance of a pardon implies an acceptance of guilt, and the claim of pardon defeats any resistance to a subpoena on grounds of 5A privilege.
A set of contrived pardons could cause more problems than it solves.
OOPs
If some one wants revenge they will get if they are committed to it. They will think up some false crime and go from there. A pardon does not avoid too much of anything, if Trump and his crew decide some one has to “pay” for the insults, etc.
If some one is given a pardon and it is not a crime, for which they are being pardoned, you’re in a manner saying what they did is a crime. Would a pardon avoid being sent to trial and jail, not really.
The last time I checked, with Law and Order, people needed to be arrested and then sent to trial and there a jury decides if some one is guilty or not guilty. It is still in the hands of citizens to make the final determination. Of course there could be the problem of being arrested and not being granted bail, But as I understand it that might well be something which could be addressed.
If Biden does go ahead with the pardons, it sets a precident for future pardoning.
It might be a good idea to protect General Milley and other military leaders because they could wind up in military court.
I appreciate EW’s insights but in a way it’s like learning I have the gene for an incurable disease. There’s an emotional cost to knowing the truth of what could happen. I’m not blaming EW, I’m just trying to figure out how to cope with the anxiety.
Dumping your anxiety here is not constructive for you or other readers. Frankly, it can be discouraging and demoralizing though we need to slog on because of the dearth of truth-telling in corporate media.
When you feel the urge to complain about anxiety, use the exit button first. Go do something constructive instead of dumping — anxiety/stress management exercises away from the keyboard, join a face-to-face group engaged in mutual aid, meet up with a book club, or take a class. Doing something with your hands like craftwork, repairs, cooking, so on can be very beneficial.
Sorry. You’re absolutely right. I do try to keep occupied. It’s just incredibly hard to keep learning day after day all the ways this guy finds to hurt people AND that millions love him for it. I am glad my parents aren’t alive to see it.
THANK YOU RAYNE. I am here standing on a chair saying the same. I got into a loud public argument with a friend who has a great radical analysis that I appreciate. I do not find all Democrats to be compromised to the degree that this type of analysis paints with a broad brush. I do understand why it happens.
I am trying to organize. I am not proscribing the causes we might take to a street fight, court battle, or corrupt construct, etc, on, and on. I am saying that one cannot be an island at this time. We must get organized.
The assassination of an insurance executive has, for a moment, generated a spark. It has helped to focus public attention on the grift writ large, that affects every person/familly who has interfaced with medical “insurance” in any significant way and at the most critical junctures of illness and treatment.
Whether one wants to join or lead in organizing is up to each individual and their capacity at any given time. But I am organizing. Did making a radical choice to vote 3rd party help the people of Gaza? All I know is that Harris would not be appointing a ChristoFascist to be the ambassador to Israel.
I cannot live without hope. It only takes a spark to light a prairie fire. What that spark will be I don’t know. But I am doing my best to be prepared to meet that moment.
When you take the red pill, anxiety goes with the territory. The other choice is…sub-optimal.
That sub-optimal choice appears to be a Magical Pony
Elie Mystal over at The Nation, has a good take on the pardon of Hunter Biden:
Suppose we’re about to find out if the wheels of justice move as slowly for Bondi as they do for Garland.
Sounds like many readers of the blog think that lady justice is blind. I’m more of the jaded view paraphrasing George Orwell, ‘everyone is equal under the law, but some are more equal than others’.
[Welcome back to emptywheel. Please use the SAME USERNAME and email address each time you comment so that community members get to know you. You attempted to publish this comment as “Xratgeezer” triggering auto-moderation; it has been edited to reflect your established username. Please check your browser’s cache and autofill; future comments may not publish if username does not match. /~Rayne]
How exactly does the abuse work? It’s just constant subpoenaing of the victims? If the invented crime is ridiculous enough, doesn’t that take off some of the worry?
Let’s not forget that the most important part of the wingnuts plan for retribution is performative. Actually sending Hunter to prison was not the primary goal. It was to have headlines and a national discourse dominated by a topic the wingnuts chose.
My belief is the only way to fight that is using the “they are just weird” framing that was very successful for about 2 weeks during the Harris campaign, until they stopped it because it’s not nice to call white people weird.
The best response to an accusation that Miley is guilty of treason is “man, that’s just a truely wacko thing to say”. At that point the discussion is no longer about Miley and treason, it’s about the wingnuttery, which is what we should be talking about.
I’m totally down with this. Mockery is incredibly powerful if used properly, and the nutcase far-right should be mocked with every joke and jape at our disposal.
Thank you, Marcy, for articulating what I was feeling.
The only way out of this is for rational people – presumably Dems – to win some elections.
Issuing preemptive pardons for crimes not committed would be spun endlessly as an admission of guilt by the shameless propagandists on the right. They would point to the “pardons” as supposed admissions of criming, even though they were nothing of the sort. And many of their voters would buy it.
If the MAGA radicals are going to press the case for non-existent crimes in the public square, that should be on them. The thoughtful segment of the electorate would be able to see that more clearly if the radicals are unable to use preemptive pardons as a distraction.
“And it won’t work.”
Hunter deserved a pardon and probably all those on death row, but anyone else mentioned above then No including General Milley.
“He’s different because the reason why Republicans would target him is that he upheld the Constitution, rather than Trump.”
Should we have that argument now instead of letting it fester?
Of course in this media environment there would not be an argument as the analysis is terrible….I am a little sickened by listening to the latest Political Gabfest after reading this post. I think John Dickerson really wants to scream sometimes, but maybe I am reading him incorrectly.
https://slate.com/podcasts/political-gabfest
I agree, Marcy. The cases that Bondi and friends may cook up will be frivolous on their face. In 2020, even Trump judges refused to allow cases concocted out of whole cloth to proceed. There is simply no way to craft an indictment against, for instance, Jack Smith that would survive a motion to dismiss before a judge other than Cannon in any conceivable venue. And even a Cannon ruling would not survive an interlocutory appeal, which can be taken as a matter of right because it would involve privilege defenses. Preemptive pardons would allow Trump to avoid the multiple black-eyes and bloody noses he would experience in court, if Bondi were stupid enough to commence criminal actions. It would also give him the opportunity to maintain that, if they were pardoned, they must have done something wrong. And it would make his massive pardons of the J6 goons look like business as usual. I am sure that there would be plenty of resources to defend these cases from people and entities that believe in the rule of law.
“Importantly, the more invisible or easily dehumanized targets are, the easier they will be to take down.”
This. The people at the top of these “enemies lists” are all rich and/or powerful. Liz Cheney, Jack Smith, Tony Fauci, etc. all have the resources to take care of themselves. The smaller fish, not so much. And if we’re going to have bullshit “show trials”, I want the most well-known public figures sitting at the defense table. Hunter Biden may have been dragged through a legal nightmare, but he’s not facing financial ruin.
Hunter Biden may have been dragged through a legal nightmare.
When cruelty is the point, the weaker, more vulnerable and isolated the target, the better.
I started reading Adam Serwer’s book right before the election, and it’s depressingly appropriate for what we’re seeing right now.
Perhaps the targets should worry because they committed crimes? Or is that automatically refuted by merely calling it political? Are the lawsuits and criminal cases against Trump, that are now getting dismissed or overturned politically motivated or are politics not part of it because it’s Trump? How about looking at the facts about the made up Russiagate nonsense or how the NY Judge grossly undervalued Mar a Lago to make the case or how a certain plaintiff couldn’t remember the year when the alleged assault occurred or how her story seems implausible given how busy the store probably was during the alleged incident or how she never reported it or how she didn’t go the hospital, etc., etc.? The public at large did and voted accordingly.
Trump had to endure all of these lawsuits and criminal cases to have them implode precisely because they were political, yet he needed to go through the exercise because certain delusional individuals made delusional claims. These people should be punished accordingly. Also, if it is as everyone here says, that St. Democrat is being unfairly persecuted, then show it and then let’s punish the political apparatchiks on the right for abusing the law.
Is it possible that both sides politicize the justice system and both sides should be duly punished for their conduct? Or is it just team democrat that wears the white hats?
[Moderator’s note: this user has now been added to blocklist for trolling and sockpuppeting. /~Rayne 13-DEC-2024]
Dude. You’re new here, aren’t you. That’s not even a question.
I’m leaving your bullshit first-time concern troll comment up only so readers here can examine a sample of bad faith arguments in close detail.
You should resume your exile, stat.
Solid piece Marcy.
Want to add that Kash Patel’s threat to Olivia Troy is a very public warning shot to anyone who might speak out. It’s not just about “crimes” real or made up; it’s about intimidation and at minimum causing undue financial hardship to anyone who challenges Trump’s version of reality with reality itself.
That he’s poised to run the FBI where he can create and run any fishing expedition or harassment as he likes is extremely dangerous and he’s making it clear just how dangerous ahead of time.
I imagine that people perceiving preemptive pardons as a good idea are responding to the track record of the media since 2016.
The media’s record of informing the public of the truth is dismal. Something like 75% of Republicans believe the election of 2020 was stolen, that Peter Strozk is a bad guy, that Vindman is a traitor, the people accused by the incoming Trump admin won’t recover their lives and reputations if they’re put through the wringer. They won’t. And it’s a problem.