Dem
47
GOP
53
The pardon power continues to be front and center, as is often the case in the waning months of a presidential administration.
To start, reporters have had time to go through the 1,500 or so pardons that Joe Biden issued last week, and they've found some... unpleasant things. One of the pardons went to Judge Michael Conahan, who sentenced kids to juvenile detention in exchange for kickbacks from the corporations running those facilities. Another went to Rita Crundwell, the city comptroller who looted the small town of Dixon, IL, to the tune of $54 million.
When pardons go to extremely dubious people like Conahan and Crundwell, the tendency is to smell a rat. In this case, however, there does not appear to be any corruption. This duo is not Marc Rich or Jeffrey Epstein; they're not in a position to write a fat check to a political party or to a particular politician. The facts are that moving thousands of white-collar offenders from federal prisons to house arrest 3-4 years ago served not only to protect inmates against the COVID pandemic, but also to reduce overcrowding. Sending these folks back, even with the pandemic in the rearview mirror, was not a great option, and they've all served some time in prison, and another 3-4 years under house arrest. That is to say, they've paid their debt, at least in part. The upshot is that the White House made an understandable decision, albeit one that still looks pretty bad.
Meanwhile, there is something of a public debate going on among high-profile Democrats, as to whether or not Biden should issue preemptive pardons to the "enemies" of Donald Trump. Sen. Bernie Sanders (I-VT) was on Meet the Press this weekend, and said that Biden should "consider that very seriously." On the other hand, Sen. Adam Schiff (D-CA) was on This Week, at very nearly the same time, and said that he's not interested in a pardon, as he stands by the work that he and the 1/6 Committee did, and he doesn't think that mass, blanket pardons would be a good precedent to set.
Both men have a good point. On one hand, if Trump goes full-on Night of the Long Knives, then Democrats are going to regret Biden's failure to seize this opportunity while he still had it. On the other hand, if Biden pardons anyone and everyone whom the Trump administration might look askance at, then "pardon everyone" almost certainly will become a new American tradition. And that, in turn, would mean that the lawlessness that a president is now empowered to get away with would potentially extend to his whole administration.
It is pretty clear, at this point, that there are some serious problems with the pardon power. Unfortunately, they are probably not fixable. Since the pardon power is in the Constitution, a change would require an amendment, which is not likely to happen. Further, even if there was an amendment, it's hard to see an approach that would not trade one set of problems for another. The pardon power exists to correct injustices, and also to give a president a bargaining chip in times of crisis (e.g., the Whiskey Rebellion). If the power is watered down, or is partly given over to some sort of pardons board, then the original purpose would be partly or wholly lost, while the process would almost certainly become even more politicized.
And actually, the biggest problem here is not the pardon power. Yes, that's a problem, but it's not as big a problem as the fact that an unscrupulous president can weaponize the Justice Department against his enemies. For 250 years of U.S. history, excepting a few years in the 1970s and a few more in the 2010s, custom and presidential scruples kept that from happening. But it sure looks like those guardrails are in danger of failing, for at least 4 years. We don't foresee reform anytime in the near future, but if you want to hope and rally for something that is at least plausible, and within the power of Congress, hope and rally for the Department of Justice to be spun off as a quasi-public agency, along the lines of the Federal Reserve. (Z)