It’s a time to think about pardons, even if we’re not in a forgiving mood.
Joe Biden pardoned his son, Hunter, for a major scandal, or perhaps a petty violation. The father said the son was prosecuted for actions that would have been ignored for anyone else. One of those crimes was falsely denying he used drugs on a mandatory gun-purchase form.
Even some conservatives with a low opinion of both Bidens questioned the gun charges. If every pot-smoker who lies on that form were convicted for it, prisons would be full. Many Second Amendment fans believe anyone can have any gun any time in any situation, as long they you don’t shoot anyone — and that applies even to an enemy like Hunter.
Meanwhile, Biden defenders say Donald Trump made even worse pardons in 2020. A leading candidate for worst pardon is Trump’s father-in-law, Charles Kushner, who was convicted of tax evasion and witness tampering. Other competitors include Roger Stone, Michael Flynn, Paul Manafort and Stephen Bannon.
On the other hand, Biden pardoned the “kids-for-cash” judge who took kickbacks from detention centers in exchange for sending them juvenile offenders. Bill Clinton pardoned Marc Rich, a fugitive who had contributed to Clinton’s campaign. Jimmy Carter pardoned Vietnam draft dodgers. And in the most famous pardon in American history, Gerald Ford pardoned Richard Nixon.
Trump has said he will pardon convicted Jan. 6 rioters. It seems unfair that the minions would rot in jail while their leader walks free. Some of us would prefer that leader and followers were in the same cell, but since the American people have pardoned Trump, he would be a cad to refuse to pardon those who followed his suggestions.
Speaking of unfair pardons, how about the WNMU Board of Regents? I’m not talking about the $1.9 million separation contract or the $200,000 yearly remote-teaching salary. Those can wait for a future column. I’m only referring to the clause in his separation agreement that says “the University agrees to defend, indemnify, and hold harmless Dr. Shepard against any claims arising out of or relating to any actions taken by Dr. Shepard in his capacity as President of the University.” They’ll even pay his legal fees if the attorney general sues him.
In other words, they’re giving him a preemptive pardon. But do the regents have that power? The president of the United States can give immunity and pardons, however bad, because the Constitution says so. But we’ll see whether the regents have similar power.
You might well ask if the whole idea of pardons is a mistake. Shouldn’t the law take its course, so that convicts serve the punishment given through a legal process? I think the Founders did the right thing in giving the executive pardon power. The law is often too strict, and occasionally plain wrong. A little well-placed mercy can be a good thing.
The one Trump pardon I agree with was for Susan B. Anthony, the women’s suffrage reformer whose birthday I am honored to share. She was arrested for voting while female in 1872. Sure, the pardon is symbolic only, but symbolism is better than nothing, although real action would be better.
For example, in every congressional session since 2017, Rep. Steve Cohen, a Democrat from Tennessee, has proposed a constitutional amendment to reform presidential pardon powers. His amendment would eliminate corrupt pardons, including pardons for family members, officials of the administration, campaign employees and, of course, the president. I would add a provision against lame duck pardons by presidents who lost or did not run for reelection.
“The pardon power is supposed to be a safety valve against injustice,” Cohen said. “It is not supposed to be a way for presidents to put themselves, their families, members of their administration and campaign staff above the law.”
The Constitution says the president “shall have Power to grant Reprieves and Pardons for Offences against the United States. …” That’s pretty broad. It doesn’t even rule out self-pardons. Imagine the president holds a press conference, shoots an opposition reporter and then pardons himself. We’d only know whether that was constitutional if a president tried it.
It’s fine to complain about bad pardons, as I am doing here, but it would be even better to prevent them. But, of course, constitutional amendments are almost impossible. Cohen’s repeated proposals have gone nowhere.
If the president and the governor have pardon powers, why shouldn’t the mayor? And indeed, the Silver City Charter says the mayor “shall have power to remit fines and forfeitures, and grant reprieves and pardons in all cases arising under the ordinances of said town.” I’ve never heard of our mayor issuing a pardon, but it doesn’t hurt to be nice to him — just in case.
