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.
