A Few Thoughts On Resistance And Pardons

Today's an appropriate on to think about the role of suffering in change

Photo by SLT

My and James’s posts on today’s pardons have sparked a range of reactions. I don’t think there were necessarily any real surprises (we all have pretty well-established axes that we like to grind). Reading through them was helpful for me to advance my thinking on why I don’t support the decision to pardon Fauci, Miley, and others. After a bit of reflection, I decided that this potentially takes the conversation in a different enough direction that it’s worth a separate post.

Let me begin by identifying a point of agreement. I understand the argument that we should pardon these people to protect them from malicious prosecution. James captures that sentiment well:

The incoming President has vowed revenge on these people and, as Biden implies, simply having to defend oneself against scurrilous charges can be ruinous.

This is an entirely defensible position on all levels. I don’t think anyone is wrong for holding it. Heck, I also totally understand the named folks accepting the pardon and the protections that come from it.

Like with most things in the world, there is often more than one entirely defensible position available to us. So, given today’s celebration of the life of Dr. Martin Luther King Jr, I want to explore what I believe to be also an entirely defensible position: that the pardons are ultimately a gift to the Trump administration.

Since Trump’s election late last year, a common phrase you hear is “don’t obey in advance.” It got brought up when Jack Smith chose to resign versus be fired by Trump. It’s come up regarding discussions about which Trump appointees Democrats should allow to go through to concentrate resistance on others. And it’s something that we’ll be hearing a lot of in the coming weeks and months.

I think it also applies here.

Proactively pardoning these people theoretically removes prosecutions from the table. Even noted Trump-supporting commenter @JKB said earlier that such prosecutions “would likely have been divisive.” Prosecuting Fauci, for example, would have been challenging for more moderate and traditional rule-of-law Republicans. At the same time, not prosecuting Fauci could have created real issues with the MAGA base. All of this could also have thrown the FBI and DoJ into chaos, which in turn would have created other challenges for the administration. No matter what, there would have been prices for the new Administration and its allies to pay.

Admittedly, there would have been steep prices for the subjects of the investigations and potential prosecutions to pay. Being investigated by law enforcement can be, and is often, ruinous for individuals–especially when things drag on. There is a lot of pain on the subject of the investigation, as well as their families and friends.

As such, I understand the desire to protect people from that pain and suffering–especially if you think they broke no law in the fulfillment of their duty.

And I also believe this type of thinking can be at odds with the “resistance” values folks often discuss wanting to embrace. Generally speaking, the only types of resistance that mean a damn are ones in which you are exposing yourself to potential suffering.* That, to me, is a critical lesson from MLK and the civil rights movement (among others).

The moral power, for example, of “Letter from a Birmingham Jail” was the fact that King was willing to go through the indignities of incarceration to demonstrate his point. Part of John Lewis’s power came from having put his body on the line to engage in civil disobedience (coming close to death as a result). And the fallout from their and other actions also brought their loved ones into danger. We also know the specific price King paid.

Now I realize that some may say, “well they consented to that treatment by putting themselves in those situations.” This is true. But that doesn’t change the fact that they were also ordinary people who chose to walk those paths.

That virtue of ordinary people choosing to walk a more arduous path and suffer as a result is part of our national mythology–going back to stories of our founders who didn’t want to fight a war with England but still did it anyway. Both sides of the Civil War claim the other one “forced them” into the conflict.

And yet, at the same time people are calling for active resistance, why are so many also calling to help others avoid the price of real resistance?

As I write this, it looks like Dr. Fauci, at least, will take the pardon. I don’t begrudge him that.

At the same time, if someone as relatively privileged and protected as Fauci isn’t willing to endure suffering for change, perhaps we need to reexamine our own commitments to the idea of resistance. Likewise, if you’re position is “these blanket pardons are the correct thing to do in our broken system” then you may want to think a little bit more deeply about what “don’t obey in advance” means and why it doesn’t apply to this situation.

* – I am open to the potential of little acts of resistance–ones in which someone accepts mild inconveniences in order to demonstrate a point–having some impact. But I can’t think of any example where that has really led to any sustainable systems change.


Personal reflection on the topic of resistance:

In recent years, my professional work has led me to interact with a lot of organizers. These are normal folks who often have turned down far more lucrative careers to focus on bringing changes to their neighborhoods and communities. I’ve seen the crap that they have to go through to show up each day and do that work.

I also became an “accidental” labor organizer and watched people put their jobs on the line to go against management to form a union and bargain a first contract. I know the challenges they faced in that directly confrontational process–I was literally sitting right next to them.

In my own civic work, I find myself returning to Letter from a Birmingham Jail and in particular, the often cited portion:

I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.

This lives rent free in my head, especially as, by nature, I tend to be a moderate and in large degree an incrementalist. I’m also in a significantly better paying job that most of the people I work with. I get to go home to a middle class suburban community. I don’t have to live alongside the challenges I’m working to change, day in and day out.

All of those complex feelings and experiences color my thinking on this. To me, issuing a preemptive pardon isn’t confronting the issue head-on. It’s acknowledging that the system is unjust rather than making your opponent show the unjustness through action.

Again, I realize it’s not my role to determine who should suffer. And I’m also inspired by those around me to at least think about what I am willing to suffer for a better world.

FILED UNDER: 2024 Election, Crime, Law and the Courts, Policing, The Presidency, US Constitution, , , ,
Matt Bernius
About Matt Bernius
Matt Bernius is a design researcher working to create more equitable government systems and experiences. He's currently a Principal User Researcher on Code for America's "GetCalFresh" program, helping people apply for SNAP food benefits in California. Prior to joining CfA, he worked at Measures for Justice and at Effective, a UX agency. Matt has an MA from the University of Chicago.

Comments

  1. Paine says:

    I just don’t see how Biden can feel the need to issue all these preemptive pardons while at the same welcoming Trump back to the White House and have tea with the guy. Is he an authoritarian monster or not? A commitment to comity, maturity, and principle is a good thing, but at a certain point you are simply enabling bad behavior.

    Losing the election was bad enough but watching the Dems just roll over is completely disheartening.

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  2. Moosebreath says:

    “Prosecuting Fauci, for example, would have been challenging for more moderate and traditional rule-of-law Republicans.”

    Not unless you think it is a challenge for them to furrow their brow before they elect to do nothing. As they have ever since Trump first declared for the Presidency.

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  3. Bobert says:

    Serious question,
    Would you encourage your son or daughter to work towards a career with the National Institute of Allergies and Infectious Disease?
    Or any other agency that may run afoul of the a President’s wishful thinking?

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  4. Matt Bernius says:

    @Bobert:
    First, to try and be consistent in my interactions, what you are asking appears to be a complete non-sequitur and doesn’t speak to this post.

    Would you encourage your son or daughter to work towards a career with the National Institute of Allergies and Infectious Disease?
    Or any other agency that may run afoul of the a President’s wishful thinking?

    In complete transparency, I don’t have kids and most likely have missed out on punching that particular part of my life card.

    I have encouraged people to consider working in the Federal Government, including agencies that fall under the executive branch in the past. I will probably do so again in the next 4 years.

    I’ll also share that up until the election, I seriously thought that my next step could be to join the Federal Service in a group like US Digital Services (which is an extension of the Executive Branch). I still might go through with that, but I am waiting to see how things shake out.

    So yes, I actually have known people whose work ran afoul of the a President in the past. That’s a weakness of our political system. I am unsure how granting preemptive pardons in any way has an impact on changing that unfortunate reality.

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  5. Matt Bernius says:

    @Paine:
    FWIW, you are expressing something I’m still trying to work through my thinking on. There is a significant bit of cognitive dissonance in the behavior you call out.

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  6. Matt Bernius says:

    @Moosebreath:

    Not unless you think it is a challenge for them to furrow their brow before they elect to do nothing.

    That is a potential outcome, without a doubt.

    I humbly also submit the case of Matt Gaetz’s Attorney General Nomination to suggest that there are, in fact, some limits to their support of lawless actions.

  7. @Paine:

    A commitment to comity, maturity, and principle is a good thing, but at a certain point you are simply enabling bad behavior.

    BTW: agreed. It would have been possible to be an adult about the situation without pretending like all of this is normal.

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  8. drj says:

    And yet, at the same time people are calling for active resistance, why are so many also calling to help others avoid the price of real resistance?

    Because the choice whether (and how) to resist is something that people should decide for themselves, not something that gets shoved down their throats after the fact.

    The latter is both unfair and ineffective. Not everyone is capable of heroics. Assuming differently will have you run of volunteers soon.

    By the way, the civil rights movement picked its fights, too.

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  9. Moosebreath says:

    @Matt Bernius:

    “I humbly also submit the case of Matt Gaetz’s Attorney General Nomination to suggest that there are, in fact, some limits to their support of lawless actions.”

    Or alternatively, a large number of Republican members of Congress who dislike Gaetz on a personal level.

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  10. mattbernius says:

    @drj:

    By the way, the civil rights movement picked its fights, too.

    Wait, you mean Rosa Parks wasn’t some innocent little old lady pushed to the breaking point because she was so tired from work? Say it ain’t so?!

    There’s another article in here about the civil rights movement and what it means to be an activist while living, day to day, under the conditions you are fighting that I may get to (and further complicates the civil rights story). But today isn’t that day.

    It’s great that the pardons will allow certain people to escape suffering. Like I said, I totally appreciate that point and think it’s morally defensible.

  11. gVOR10 says:

    First, exactly what norm has been breached by today’s pardons? Preemptive pardons in the absence of charges? Ford pardoned Nixon for “all crimes against the United States”, known or not. Pardoning a family member? Carter pardoned his half-brother Roger, Trump pardoned Ivanka’s father-in-law and now he’s appointing the guy ambassador to France. FOX/GOP will claim Biden is pardoning Hunter and other family members who could testify against Biden, which is BS. In the real world HW pardoned Iran-Contra co-conspirators who might have testified against him.

    I expect that Bennie Thompson and the other members of the J6 committee were lobbying Biden for these pardons. Given that no liberal guardian angel has pledged funds to defend these people and that investigation and charges can bankrupt innocent defendants, it would have been hard to argue they should be exposed to being martyrs for the cause of maybe, but likely not, somehow embarrassing Trump with the voters.

    I haven’t even tried to game this pardon business out, but in a general way it’s past time for Dems to adopt a policy that when they go low, we knee them in the face.

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  12. dazedandconfused says:

    Matt, Paine, et al,

    Richard Pryor was once, amazingly, given a children’s show to produce. First episode was how to cope with bullies that have practically unlimited powers, it’s out there on the web somewhere.

    Richard grew up in some of the roughest neighborhoods there are and knew the BS that kids were being fed by the uninitiated was that bullies always have to be directly confronted because they (of course!) always back down is silly. Richard knows this is feel-good bullshit and damn near every kid does too. Truth is you have to swallow your fear and anger so you can thoughtfully, carefully pick your spots.

    Edit: here it is.

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  13. Mu Yixiao says:

    “Generally speaking, the only types of resistance that mean a damn are ones in which you are exposing yourself to potential suffering.”

    Then you’re going to eliminate the majority of your allies.

    I lived in China for 6 years. Unlike most people here, I have first-hand experience in living in an authoritarian country–I grok.

    First of all, there is absolutely no “resistance” that doesn’t include some degree of “potential suffering”–depending on how you define “suffering”.

    Based on your reference to Dr. King’s writing, I’m assuming you mean “significant disruption of one’s life” or worse.

    Are you saying that the “only meaningful” way for my Chinese friends and colleagues to resists is to go out and protest? Like Tienanmen Square? That using a VPN to bypass the Great Firewall and access unapproved news, cultures, and societal engagement is worthless? The “sacrifice” is tiny. What about engaging in friendly political debates over a few beers? That can have a significant impact in shifting attitudes–but comes with very little risk.

    Resistance can be slow, quiet, and insidious and still have incredible power and make massive changes.

    If you expect resistance to only take a form where a person needs to paint a target on their head, expect very few people to resist. And very little change to happen.

    The few who are willing to step up and take that burden should be supported and revered. But for every person charging the battlements, sword in hand, there are thousands digging away at the foundations with spoons and plausible deniability. You do them a great disservice.

    I don’t read the comment here anymore. If you’d like to respond directly, you can do so via e-mail.

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  14. DK says:

    @gVOR10:

    First, exactly what norm has been breached by today’s pardons?

    The norm that Trump and Republicans get to do whatever they want without consequence, while liberals and Democrats are obligated to respond with weakness, passivity, and timidity.

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  15. Barry says:

    Matt, in the end you took a poor position, offering lip service to *former* norms while not acknowledging that they are *former*, and offering up *other* people.

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  16. Rob1 says:

    @Matt Bernius

    It is unfair to saddle Fauci, Miley and the rest of the pardoned with the high bar of MLK’s spiritual quest and personal sacrifice. They never signed up for that rock and bramble strewn path. They took positions in our government under long established norms insulating those roles from political persecution.

    Biden was right to offer them the pardons, and they are free to consider how they will use those pardons, if at all.

    Having said that, “not obeying in advance” is a worthy decision. Force the Trump administration to defend every one of its asinine, malevolent, anti-democratic impulses in the light public’s glare. Force them to defend themselves, in reverse. And hope to hell, the legal structures hold. It is a gamble.

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  17. Rob1 says:

    Another thought on “resistance” —

    Shove the Presidency Down Trump’s Throat

    [Jonathan V. Last] who wrote, “The job of the Democratic party comes in two parts. First: Do not help Republicans. Not in any way. Second: Make Donald Trump own every bad outcome that happens, anywhere in the world.

    [..] I think that Last is on to something when he suggests that Trump’s opposition should force him to “own every bad outcome that happens, anywhere in the world.” I’d actually take this a step further. Rather than exert so much energy trying to thrust Trump out of the presidency, liberals would be well served to spend their time thrusting the presidency upon Donald Trump.

    [..] Trump has historically faltered when he’s been forced to contend with the actual pressure of the presidency and its myriad responsibilities (see also: the Covid-19 pandemic) because his ideas are bad and he doesn’t have a deep and abiding interest in public service to really make a sustained effort to confront, let alone solve, the biggest problems we face.

    https://newrepublic.com/post/190337/trump-second-term-democrats-respond

    Sounds like a plan. Reality has a way of dispensing with bloviated rationalizations.

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