Biden Pardons Fauci, Milley, And Others

Going out on another unforced error

In one of his last official actions as President, Joe Biden made the understandable and still poor decision to pardon several people who all but certainly have committed no crimes. Details from AP:

President Joe Biden has pardoned Dr. Anthony Fauci, retired Gen. Mark Milley and members of the House committee that investigated the Jan. 6 attack on the Capitol, using the extraordinary powers of his office in his final hours to guard against potential “revenge” by the incoming Trump administration.

The decision by Biden comes after Donald Trump warned of an enemies list filled with those who have crossed him politically or sought to hold him accountable for his attempt to overturn his 2020 election loss and his role in the storming of the U.S. Capitol on Jan. 6, 2021. Trump has selected Cabinet nominees who backed his election lies and who have pledged to punish those involved in efforts to investigate him.

The story is still developing. Some accounts I’ve read stated that the pardon also includes members of the DC and Capitol police who testified in front of the January 6th commmittee.

On the one hand, this is understandable. On the campaign trail and via surrogates, the Trump Campaign made it clear that the were more than “open” to the idea of prosecution Fauci and others. To that point, only yesterday, one of the Truth Social accounts controlled by the incoming President posted the following “poll:”

https://twitter.com/TrumpDailyPolls/status/1881101519971651926

For those who are unaware, that is Capitol Police Officer Lt. Michael Byrd, who shot and killed Ashli Babbitt during the January 6th Capitol riot. It was an action that was investigated and deemed “lawful and within Department policy” and “potentially saved Members (of Congress) and staff from serious injury and possible death”. And yet, we have the soon-to-be President of the United States (or at least one of his close staffers) asking the mob if Byrd should be prosecuted.

There’s going to be a lot of this in the days to come. And from that perspective, the decision to issue blanket pardons can be seen as understandable.

But that doesn’t make it right. Or a good idea from a political process.

From a logical standpoint, presumptive pardons don’t make sense. First and foremost, a law must be broken (or, if you are a pedant, someone must have been convicted of a crime) for a pardon to exist. Outside of fringe theorists, none of these individuals appear to have committed any crimes related to the activities for which they are being pardoned.

There is then the legal question of whether or not accepting a pardon is a binding admission of guilt. At MSNBC, former Prosecutor Jordan Rubin writes that in his opinion this is legally an unsettled matter:

In 1915’s Burdick v. United States, the Supreme Court said that a pardon “carries an imputation of guilt and acceptance of a confession of it.” At first glance, that language would seem to answer your question in the affirmative. But the question in Burdick wasn’t whether accepting a pardon means admitting guilt. Instead, that appeal asked whether a person could turn down a pardon (the high court’s answer was “yes”).

The court’s observation about guilt in Burdick is known as “dicta” — meaning language that’s unnecessary to an opinion — as opposed to the case’s “holding,” which announces the binding rule for the future in our common law system of precedent. At least, a federal appeals court said so a few years back when it rejected a broad reading of that Burdick language and said that “not every acceptance of a pardon constitutes a confession of guilt.” Of course, whether opinion language counts as dicta or binding law can be the subject of litigation — as we saw in Trump’s classified documents case — and we don’t know what the Supreme Court would say if the issue were presented to the justices today.

So it is possible to say, from a legal standard, that Fauci and others can accept these pardons without inherently accepting any guilt.

We also know that concepts of “guilt” exist beyond the legal sphere and, in many cases, can carry more weight. From political and public perception perspectives, it’s easy to see how accepting this pardon will be interpreted as admitting guilt. Heck, I expect that in this post’s comment thread, some people will take the existence of these pardons as definitive proof that crimes were committed–even if the recipients decide not to take them.

I understand some readers will not be moved by the “perception of guilt” argument. I understand that anyone who seriously believes “Fauci is a criminal” will not be motivated by any counter-facts.

At the same time, I’m still enough of a l believer that the rule of law is an important thing, even if I don’t necessarily agree with all the laws, that these presumptive pardons are bad from a system perspective.

I think that by issuing these pardons, Biden is essentially legitimizing the lawless prosecution theories that they are tied to. It’s acknowledging that it would be possible to prosecute Fauci, Milley, and these others and that said prosecutions have a strong possibility of making it through our legal system, leading to convictions.

Given that position, any purchase is toxic to our criminal and civil legal systems, as it gets to the idea that the concept of breaking the law no longer matters for purposes of prosecution. Accepting that idea really takes us to Putin’s Russia-style “show trials” that MAGA supporters have accused the Democrats of.*


Addendum 2: As expected, I see a lot of folks are disappointed in this take and think that this is the only “rational” thing to do. I want to press back that after weeks of talking about “don’t obey in advance,” this is (to me) a very clear case of obeying in advance. If it works, it will essentially spare the Trump Administration any negative political fallout from prosecuting (or, with its base, NOT prosecuting) these people. That’s pretty much the opposite of resistance.

It’s doubly problematic as it appears that some of the people pardoned were not planning to “obey in advance” and were prepared to be prosecuted. So it’s also not respecting their wishes either.

Addendum 1: None of the above should be taken as a denial of the deep pain and hardship created when someone is unfairly prosecuted for a crime. Heck, I’m even prepared to talk about the deep pain and hardship created when ANYONE is prosecuted for a crime. I’m also not moved by the idea that we should risk sacrificing our overall legal systems to protect people who–for the most part–are already in positions of great power and privilege. If you want to make this argument, I’d start with the Capital Police Officers rather than Dr Fauci.


* – I am sure some commentator will bring up the NY State Conviction of Donald Trump as an example. This is a flawed comparison for many reasons, not the least of which is that there were laws that the prosecutors were able to convince a jury that Trump broke. BTW, a “Trump can’t get a fair trial anywhere” isn’t a great defense unless, of course, you are willing to follow it as a broader attack on the jury-of-peers system–unless you want to have a serious talk about the composition of juries (and the manipulation of said composition) in all cases.

FILED UNDER: 2024 Election, Congress, Crime, Democracy, Law and the Courts, Policing, Political Theory, Supreme Court, 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. just nutha says:

    It’s acknowledging that it would be possible to prosecute Fauci, Milley, and these others and that said prosecutions have a strong possibility of making it through our legal system, leading to convictions.

    Given that position, any purchase is toxic to our criminal and civil legal systems, as it gets to the idea that the concept of breaking the law no longer matters for purposes of prosecution. Accepting that idea really takes us to Putin’s Russia-style “show trials” that MAGA supporters have accused the Democrats of.*

    Yes. We have arrived at this train stop. I’m sorry. I can’t fix this and wish that Biden hadn’t felt it necessary to do, but I won’t second guess him.

    15
  2. SC_Birdflyte says:

    I likewise think this was a bad decision. When Agent Orange and his minions started rumbling about prosecuting Fauci, Milley, Cheney et al, it would have been appropriate for someone (perhaps a notorious criminal like George Soros /s) to announce a fund to defend anyone who became the target of a political prosecution. Trump can bloviate all he wants about “they oughta be jailed” but he can’t compel guilty verdicts and and he can step into deep shit by trying such antics.

    2
  3. Jen says:

    I think that by issuing these pardons, Biden is essentially legitimizing the lawless prosecution theories that they are tied to. It’s acknowledging that it would be possible to prosecute Fauci, Milley, and these others and that said prosecutions have a strong possibility of making it through our legal system, leading to convictions.

    Even stupid claims cost money to defend. Putting these people through the EXPENSE and STRESS of dumb-ass claims has both an actual and emotional cost.

    It’s easy to sit here on the sidelines saying that these pardons legitimize the claims, but we aren’t the ones who have to, say, start a GoFundMe or cash in 401Ks to pay lawyers.

    15
  4. mattbernius says:

    @Jen:
    I attempted to address that in an addendum that I suspect went live after you wrote that commment. Here’s that addendum again:

    Addendum: None of the above should be taken as a denial of the deep pain and hardship created when someone is unfairly prosecuted for a crime. Heck, I’m even prepared to talk about the deep pain and hardship created when ANYONE is prosecuted for a crime. I’m also not moved by the idea that we should risk sacrificing our overall legal systems to protect people who–for the most part–are already in positions of great power and privilege. If you want to make this argument, I’d start with the Capital Police Officers rather than Dr Fauci.

    I definitely understand where you are coming from with this position. And I also know it’s easy for me to say it doesn’t matter when this isn’t happening to me.

    That said, like the Thomas More in A Man For All Seasons, I don’t believe that cutting down the law to save the law is a strategy anyone should employ.

  5. drj says:

    [Biden is] acknowledging that it would be possible to prosecute Fauci, Milley, and these others and that said prosecutions have a strong possibility of making it through our legal system, leading to convictions.

    He is not wrong, IMO.

    Parts of the judicial system are very openly corrupt (Alito, Thomas, Cannon, Kacsmaryk, just to name few).

    12
  6. Not the IT Dept. says:

    I think that in normal times it would be a bad decision. But we no longer live in normal times, and the reality is that Trump is totally capable of setting show trials for people he’s deemed his enemies or who the MAGA-verse wants to see prosecuted. James Comer was interviewed the other day saying he’s investigating how his committee can get around Hunter Biden’s pardon and still go after him. Your post shows how his people are polling whether a black man who allegedly shot a white woman should be prosecuted. (Notice that the black man is in a suit and not in the uniform he wore on January 6.) Any guesses how that poll is going to turn out?

    And what you should be considering is that even Biden knows the pardons aren’t going to work – at best, they can only slow things down on the road to the show trials. Fauci, Milley et al would be best advised to get the hell out of the country.

    7
  7. Paul L. says:

    It was an action that was investigated and deemed “lawful and within Department policy” and “potentially saved Members (of Congress) and staff from serious injury and possible death”

    Nothing warms my black cold heart more than Police and their defenders pulling off the mask and saying out loud that Policy, Protocol, Procedure, Process and Practice are more important than the law or constitutional rights.
    “We investigated ourselves and found we did nothing wrong but keep the public safe.”

    While we deeply regret any distress or inconvenience caused …, our officers acted under the assumption that they were intervening in an emergency, with the safety of the community at the forefront of their actions. This was a decision made in good faith, with the intention of preventing further harm.

    We are committed to transparency and accountability in all matters, including this incident, and will defend this new lawsuit. Our priority remains ensuring the safety and security of all individuals in our community, while also ensuring our officers are equipped with the appropriate training and guidance to handle challenging situations with professionalism.

    We ask for understanding as we navigate this process and remain dedicated to upholding the trust and safety of the public we serve.”

    1
  8. Not the IT Dept. says:

    @mattbernius: ..like the Thomas More in A Man For All Seasons..

    LOL. AMFAS is fiction, as was the characterization of Thomas More in it. The real More was a lot more flexible in terms of the law and spent a few years helping Henry VIII break it, especially when it came time to executing proto-Protestants. He only stood up to Henry when the king set himself up as head of the Church in England and executing Catholics instead. That was finally a step too far. No, I wouldn’t cite a fictional character as some kind of authority.

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  9. JKB says:

    The fun part is that now the individuals cannot take the 5th in answering questions about incidents for which they have been pardoned as they now have no legal liability.

    And lower level people do not have to worry about these individuals being at risk of prosecution sparked by descriptions of events in their many books to likely come out.

    In any case, criminal investigation/prosecutions of the “pardoned” individuals would likely have been divisive, but now fact findings can be conducted without that aspect. It is more important we develop the record of the events in public than it is to seek prosecutions, which naturally leaves evidence withheld from public disclosure until the trial.

    1
  10. Charley in Cleveland says:

    Another example of how Trump is a one man wrecking ball of the country’s norms, procedures and institutions. No one ever wondered if a president could pardon himself until Trump came along. No one ever believed someone who couldn’t pass a security test would become president, and no one ever believed a president could foment a riot and steal classified documents and not be held accountable. Biden’s issuance of pardons is not the problem….the fact that a lawless, immoral man who is assuming the presidency and has named an equally lawless and immoral man to head the FBI, and a pliant, partisan hack to be Attorney General is the problem underlying the erosion of our system of law and sense of justice.

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  11. Fortune says:

    These will fly under the radar. People hate the pardons for the rich and connected. Anyway, Biden’s pardon legacy is already set with Hunter.

    1
  12. Lucysfootball says:

    Sometimes there are no good choices, I think Biden made the right call. As someone said earlier these aren’t normal times. The nominee for the head of the FBI literally put together an enemies list. GoFundme for these people? What happens if Comer decides to have four years of investigations of Fauci, Cheney, etc? Their legal bills could be in the millions. How many millions have been spent on the Biden investigation? The Republicans DON’T CARE how much they spend or how ridiculous the investigations are. They play only to their base, and they do it 100% of the time.
    And if anyone thinks that the general public eventually will be outraged at how absurd the prosecutions would be, I would remind them that the Maga crowd has in some cases specifically gone after the Capitol police and the general public responds with a great big yawn.

    11
  13. Moosebreath says:

    “I think that by issuing these pardons, Biden is essentially legitimizing the lawless prosecution theories that they are tied to. It’s acknowledging that it would be possible to prosecute Fauci, Milley, and these others and that said prosecutions have a strong possibility of making it through our legal system, leading to convictions.”

    The fact that a person can regularly state his intent to prosecute those people, be cheered on for doing so, and be elected President is the most simple refutation to your argument. The American people chose to elect a person who was elected to bring lawless prosecutions, and pardoning the most likely defendants is damage control which strengthens the system. Allowing the lawless prosecutions to proceed would be weakening the system.

    10
  14. Sleeping Dog says:

    Matt, you and @james are attempting to uphold and defend the norms that have allowed this country to function, alas we are in a post norm moment and, unfortunately, we need to adjust and react at variance to our preferred behaviors.

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  15. Bobert says:

    It’s acknowledging that it would be possible to prosecute Fauci, Milley, and these others and that said prosecutions have a strong possibility of making it through our legal system, leading to convictions.

    I take exception. If you mean to say ” It’s acknowledging that it would be possible to investigate Faici, Milley, and others by executive directive.” . I could agree with that.
    But, it’s WAY premature to suggest (as you have) that there could be successful convictions. Can you tell us what crimes?

    2
  16. Pete S says:

    @JKB:

    I think you might be wrong here- Comer’s announcement that he is looking for a workaround of Hunter Biden’s pardon probably has opened up taking the fifth as a legal option for all of this group. I doubt they would, but I think they now could

    3
  17. Barry says:

    Matt, people who demand obedience to shattered norms are not helping restore those norms.

    10
  18. Joe says:

    @Paul L.: On cue.

    2
  19. just nutha says:

    @JKB: I’m really curious: what do you imagine that Fauci, Milley, et al. would be “taking the 5th” about in your fever dreams?

    5
  20. Kathy says:

    Within a rule of law framework, prosecuting any of these people would be a waste of time, money, resources, and effort, much better employed in literally anything else. though, as Jen and others note, it would be expensive and unpleasant for the targets involved, as well as many of their friends, family, and associates.

    In a framework that disregards the rule of law but pretend to observe the forms and legal niceties, cases could drag on for years while pursuing a vague set of charges, as laws are misinterpreted, on purpose, in novel and ridiculous ways. This could result in convictions, and good luck getting those overturned by the courts that placed the felon above the law.

    If they do away with appearances entirely, you may find Fauci ro Milley dead of some mystery illness defintiely not caused by a chemical warfare agent, or Cheney experiencing a fall out of a four story window for some reason.

    The last wouldn’t be protected by a pardon, though.

    2
  21. MarkedMan says:

    @Barry:

    Matt, people who demand obedience to shattered norms are not helping restore those norms.

    Ditto.

    @Matt – I usually like your stuff, but your take here is naive, bordering on pearl clutching. We have a corrupt, degenerate, criminal in total control of the Executive and the House, and effective control over the Senate and the Supreme Court. And you’re saying Biden is wrong to use every legal tool available to fight the depravity. Give me an F’ing break!

    5
  22. Sleeping Dog says:

    @Jen:
    @Kathy:

    It should be noted that veterans of the first trump admin are strongly urging those who are joining the second, to buy legal insurance, in the same way that you have health and property-casualty insurance.

    It has been the felons history to pursue hopeless lawsuits against those that have opposed him, in order the place cost on the opposition. That’s his plan for the DoJ, so yes, pardon any that maybe a target.

    5
  23. Matt Bernius says:

    @Paul L.:

    Police and their defenders pulling off the mask and saying out loud that Policy, Protocol, Procedure, Process and Practice are more important than the law or constitutional rights.

    Yes, as my long history of posts on the criminal legal system demonstrate, I’m a ride-or-die, back-the-blue defender of police. I’ll be right back, I need to go put up my thin-blue line American flag.

    @Not the IT Dept.:

    LOL. AMFAS is fiction, as was the characterization of Thomas More in it.

    As you note, I wrote: “like the Thomas More in A Man For All Seasons”

    As I originally wrote those words, I in fact asked myself, do I need to write ‘Robert Bolks’s fictitious creation Thomas More from that author’s Brechtian play A Man for All Seasions” to make sure people don’t think I think that said work of fiction was in fact so sort of rigorous historical record.

    At the time I thought to myself: “I should think more of this site’s readership… especially since I dropped that ‘the’ in front of Thomas More, which I though hinted at the idea that I saw that fictitious creation as separate that the historical Thomas More.

    I promise to do better in the next time. Just to check, do I need to append all references to works of fiction? For example do I need to write “the fictitious captain of a fictitious star ship” if I refer to a James T. Kirk quote in the future?

    The next thing you’ll tell me is Werner Herzog documentaries aren’t really documentaries.

    @JKB:

    In any case, criminal investigation/prosecutions of the “pardoned” individuals would likely have been divisive, but now fact findings can be conducted without that aspect.

    Two thoughts here. I have no process issue with Congressional investigations into COVID-19, January 6th, or any other topics that the Republicans wish to launch. I think they will ultimately be wastes of time much like the Biden Impeachment investigations. But they are within their rights to do them.

    And I also think you are correct that “criminal investigation/prosecutions of the “pardoned” individuals would likely have been divisive.” It’s exactly for those reasons that I think they should not have been short circuited by pardons. If the Trump administration wanted to use DoJ to go after those folks at all costs, they should have done that and paid the costs. Taking them off the plate only continues the slow slide into accepting unacceptable behavior.

    @Bobert:

    But, it’s WAY premature to suggest (as you have) that there could be successful convictions. Can you tell us what crimes?

    It’s almost like that’s my point overall point. How can you pardon if you don’t know what crimes someone is being accused of. And further what happens if no crimes were committed.

    Perhaps the strongest argument is this prevents one of the most common crimes that comes out of Federal Prosecutions–lying to the FBI–that easily can come out of a motivated investigation.

    @Barry:

    Matt, people who demand obedience to shattered norms are not helping restore those norms.

    One of the things I’ve seen thrown around here and elsewhere in resistance circles is “don’t obey in advance.” I’m applying that thinking to this situation.

    Issuing pardons in advance, and not making the government take the actual actions of criminally investigating these people, is in fact obeying in advance–it’s accepting that those prosecutions will happen and then preventing them from happening (and preventing the Trump administration from suffering any negative impact from those actions).

    1
  24. Thomm says:

    This whole piece and the feelings behind it are why squishy moderate-liberalism tends to crumble in the face of true fascism.

    3
  25. just nutha says:

    @Matt Bernius:

    As I originally wrote those words, I in fact asked myself, do I need to write ‘Robert Bolks’s fictitious creation Thomas More from that author’s Brechtian play A Man for All Seasions” to make sure people don’t think I think that said work of fiction was in fact so[me] sort of rigorous historical record.

    Regrettably, maybe, in this case, because

    This whole piece and the feelings behind it are why squishy moderate-liberalism tends to crumble in the face of true fascism.

    3
  26. Andy says:

    I agree with the thrust of your post. Between this and the sweeping pardon of his son, Biden has done more to expand the scope and norms of the pardon power (and, by extension, Executive Power) than any modern President – and in a bad way.

    It also plays into all the themes that Trump and his allies have pushed about a rigged system. In the Hunter pardon, Biden said the justice system – meaning his own DoJ – was politically biased against his son in his prosecution, never mind that Hunter had already pled guilty at that point. What an admission it is to say the DoJ which you control cannot be trust to prosecute fairly?

    This latest round of preemptive pardons just reinforces the argument that the justice system is rigged, because otherwise, why would anyone take these extraordinary steps of using the pardon power in such an ahistorical dubious way? If one doesn’t believe the justice system can work, and lawfare is how things operate, then it makes sense to do preemptive pardons for political allies and family members. So I guess we have to conclude that’s what Biden believes, even when it comes to his own DoJ. But that is quite a shift for Democrats and Biden to do a 180 on that. If Democrats no longer believe in the justice system (at least when it comes to political allies), then where are we at?

    Of course, the Biden administration has also stated that if the Jan. 6th defendants accept pardons, that is an admission of guilt. But it isn’t an admission of guilt for Biden’s preemptive pardons because…reasons.

    The long-term effects are the most concerning to me. Biden has set a new, very low norm for how future presidents will use the pardon power and what we know from history and the expansion of Executive power is that future Presidents will take advantage of norms broken by previous Presidents. Biden’s criteria are quite weak and wishy-washy—using it to prevent potential unjustified future prosecutions of political allies and family members. Convenient the President gets to solely decide which potential future prosecutions would be unjustified and which aren’t.

    Hard to see how that turns out well!

    And to the people who say he had no choice, he did have a choice. To the extent that a Trump DoJ would/will conduct politically motivated prosecutions, the best way to combat those is not preemption by dubious pardons, but by showing just how baseless claims are in court. Yes, could be an unpleasant and expensive experience for those involved – assuming the worst-case plays out (more on that in a minute), which is why there are things like criminal defense funds. Democrats have a lot of rich people in their tent who could ensure that any individual subject to a political prosecution from the Trump admin would have their expenses paid. And furthermore, since these would be baseless prosecutions, they would fail, and decisively so. This idea that a baseless political prosecution can go on forever is not how things work. By preempting the process, Trump and allies can argue that they are all actually guilty, provably so since they accepted pardons, which, by the Biden administration’s own standard in every other instance, is a de facto admission of guilt. The people pardoned will never be able to definitively show that the accusations against them are bullshit.

    Finally, this is a good example of the danger and stupidity of “worst-case” thinking. These pardons are justified solely based on a ” worst-case” view of potential future actions, and proponents and supporters of this move do not consider or openly dismiss the idea that the worst case isn’t the only case or even the most likely case. The problem is that worst-case scenarios are easy to imagine, and they ultimately justify extreme, dumb, and counter-productive responses. It results in burning down the village to save it. The justification for the Iraq Invasion in 2003 is, perhaps, the most vivid example of worst-case thinking going awry – the idea that deposing the Iraq regime was necessary to prevent WMD attacks on the US and allies. I realize we are in for another four years of the most vociferous Trump-haters worst-casing absolutely everything and presenting it as fact or near-fact, but I would really encourage people not to do that and apply a bit more rigor to analysis.

    3
  27. Matt Bernius says:

    @just nutha:

    This whole piece and the feelings behind it are why squishy moderate-liberalism tends to crumble in the face of true fascism.

    How is “if the Trump administration really wants to prosecute these individuals make them go through the pain of doing so” squishy moderate-liberalism?

    Personally I see “let’s just make this problem go away without conflict via a pardon” far more squishy. More thoughts on that here:
    https://outsidethebeltway.com/a-few-thoughts-on-resistance-and-pardons/

    2
  28. Jim Brown 32 says:

    @SC_Birdflyte: But they didn’t because Trump owns the IRS. No Billionaire is going the publicly risk challenging him for that reason alone.

    What Matt is missing is that the RW slime machine has been trashing Millie, Faucci, and Cheney for years now. The mob wants heads–but they won’t get THESE heads. Democrats stand a much better chance of making sham prosecutions blow up in Trump’s face with smaller profile victims than with the 3 pardon.

    It’s is hard to convey with words how much Red America hates these people. I have watched the visage on otherwise normal, Sunday-school wingnuts (people not even known for being confrontation) turn into Frankenstein when discussing Faucci and Milley.

    It cannot be estimated how, given a couple of years, the ecosystem can completely crystalize anger and rage against almost any target (see Biden, Hunter).

    It don’t see the point in destroying these three just to prove some point. Make them reset and find new Targets–and dare them the entire way.

    Frankly, Biden should have pardoned the non-violent J6ers as well. You starve a fire of fuel.

    4
  29. Kevin says:

    Equally problematic, or possibly more so, has been what’s happened with TikTok. Whatever you think about the wisdom of the law, or the Supreme Court’s decision, it’s the law. Yet Biden said he wasn’t going to enforce it, and Trump says he’s going to issue an executive order to make the problem go away, something he can’t, under the law, do unless he’s certifying there’s a sale underway, which there isn’t.

    So TikTok will operate with a sword of Damocles over its head, needing to keep Trump happy, and it’s clear that Apple and Google don’t take the threat the law poses lightly, as the apps are not back in the app stores. And it should be pointed out that there’s a 5 year statute of limitations on the fines, so even if Trump declines to levy any, a future administration could. The whole thing is a huge mess.

    3
  30. Lucysfootball says:

    Here’s an oldie but a goodie:
    With his term soon to expire, on this day in 1992, President George H.W. Bush pardoned Caspar Weinberger, the former secretary of Defense, and five others, absolving them from any further punishment for their illegal dealings in the Reagan-era Iran-Contra scandal.
    And the country yawned. Maybe this was the moment that the Republicans decided to do anything they wanted because they knew they could get away with it.
    Trump will ruin people’s live on his revenge tour. Anthony Fauci has devoted a large portion of his life to serving the public, and Trump wants to see if he can destroy his remaining years. Fauci made a calculated decision to accept the pardon. It’s not just the inevitable prosecution, it might also be the fear that a maga-type will harm him or his family.
    Screw the norms. there are no norms as long as Trump is president.

    5
  31. Jim Brown 32 says:

    @mattbernius: Congress can also pass legislation to prevent future POTUSES from engaging in this.

    Democrats need to stop demanding Dem Presidents take the high road when Republicans show no such deference. This is a national of laws, primary passed by legislatures. Presidents and Governors need to take every legal measure to escalate and curb bad behavior–while pressuring Congress to pass legislation to curb Executive abuse.

    7
  32. Jim Brown 32 says:

    @Paul L.: Snow White got smoked for thuggin in the People’s House snowflake.

    Before she got iced–I got the impression that the Po Po only smoked thugs that deserved it. Now she’s part of the thug club.

    The End.

    5
  33. mattbernius says:

    @Kevin:
    For the record, I have been meaning to write that article. Totally agree. If he wasn’t going to enforce it, he should have vetoed it.

    I meant to write something on that but didn’t have much more of a take than that (and that I think the underlying legislation is based because it doesn’t address the underlying issue).

  34. Jen says:

    And let’s remember that the Tik-Tok ban *was literally Trump’s idea in the first place.*

    If someone pushes you into the pond, they really shouldn’t just get credit for pulling you out, but I guess we’re allowing collective amnesia to dictate.

    Which brings us back to the wisdom of pardons.

    Trump’s MO, his entire career, has been taking people to court to drain them of their resources, or push them into submission, knowing that he had more power than most of those he victimized.

    Of course he’d do the same thing here, and I find it a tiny bit annoying that we’re even discussing the wisdom of preemptive pardons. Everything in Trump’s history absolutely screams that this was necessary.

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  35. Paul L. says:

    @Kevin:
    Trump has discretion on what laws to enforce (just like prosecutors).

    he can’t reverse it but allegedly he’s claimed he’s gonna ignore it he’ll he’ll work with Tik Tock
    to do it or he might just flat out ignore I kind of think that’s what’s gonna happen because remember it’s up to him to enforce it well if he doesn’t enforce it you can’t really go to the Supreme Court and say enforce the law because Supreme Court’s gonna say that’s his purview it’s his job and if he doesn’t want to enforce it you know we we like we saw with immigration law I don’t want to enforce it yeah supreme court goes oh well that’s his choice

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  36. Fortune says:

    @Fortune: I was wrong, these pardons and the family ones look bad.

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  37. Kevin says:

    Having thought about this, I agree with Matt.

    First, I do want to say I empathize with Joe Biden wanting to protect his family and others. I wrote him this summer, thanking him for his service and suggesting that he pardon Hunter one way or the other. And I stand by that, because Hunter was being actively prosecuted and clearly due only to his name.

    In this case, and in the case of Biden‘s family, however I disagree with preemptive pardons for three reasons. First, it doesn’t really protect them, legally. Second, it empowers Trump. And third, if anything it puts them in real physical danger.

    In terms of legal protection, if we’re assuming norms are gone, why assume the pardon norm will hold? Why assume that the Trump justice department won’t force the people in question to take the pardon to the Supreme Court? Why assume the Supreme Court won’t find some reason they aren’t valid? And pardons are backward looking. Who’s to say Liz Cheney isn’t currently committing tax fraud, or is somehow involved in sex trafficking? Better investigate her.

    Second, it empowers Trump. He gets all the benefits of having enemies who have committed real crimes, with none of the burdens of having to prove it. He can still point to them as criminals; “my justice department would have them in jail if it wasn’t for those pardons,” with no risk of them being exonerated and him being embarrassed.

    And third, it doesn’t protect them; if anything, it endangers them. We live in a time where someone showed up at a pizza parlor with a rifle, convinced there was a pedophile ring in the non-existent basement. Where parents of murdered children can be forced to move because they’re being stalked by people who are convinced they’re crisis actors. And as the recent CEO murder shows, when people feel the system is failing them, they turn to more extreme measures. So now you have people who must have been guilty of some horrible things to have been pardoned, and a lot of armed nuts.

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  38. Kevin says:

    @Paul L.: That maybe works for TikTok, as a foreign company with an existential problem. It doesn’t work for Apple, Google, or Oracle, who are headquartered in the US and have US shareholders. Were I an Oracle shareholder, I’d be preparing a lawsuit right now (assuming they’re still hosting the TikTok data) as they’ve just opened themselves to huge fines. Trump says he won’t enforce the law, but who’s to say he doesn’t change his mind? And who’s to say the next president won’t decide to enforce the fines, given a five year statute of limitations? I can’t believe any competent general counsel would sign off on working with TilTok right now.

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  39. Paul L. says:

    @Kevin:
    Same goes for the ATF and gun owners. But the ATF doesn’t go to Congress. The ATF just makes up the law and the DC circuit agrees.

  40. Just nutha ignint cracker says:

    @Matt Bernius: I’m going to recast your sentence. If I am doing it a disservice, ignore and shun me like the troll I am.

    “if the Trump administration really wants to prosecute these individuals, make them go through the pain of doing so”

    What I am reading here (adding a comma for clarity) is probably a pronoun referent fault* (the Trump administration being an it not a they), but strikes me as a cavalier attitude given the overall ease that even you in past times have admitted governments using the force of law/the justice system possesses to levy persecution against individuals. The Trump administration will haul people into court repeatedly without even breaking a sweat. Remember, this is the guy who sues the little guy because “it costs me nothing and bankrupts him.” The idea of the little guy taking on corrupt government and bringing it to its knees is a fantasy–very often a liberal one, though conservatives like it, too. Be better.

    It’s related to squishy moderate-ness in the whole appeal to “the rule of law.” I simply disagree with modern blather about the rule of law and have made my opinions known frequently, so I won’t belabor the point except that to the extent that you believe that Trumping up charges (pun intended) to harass people who have done nothing–and Republicans will, count on it–will result in some sort of vindication of the rule of law, I want what you’re smoking. I’ll use it as an additive to cu[drug crime discussion, deleted].

    Moving on. If, in fact, there is no pronoun fault, “they” will refer to the people who will be accused. I hope you’re not advocating that people who have not broken laws should “go through the pain” of prosecution, but with the basic convention (that the pronoun usually refers to the most recently named noun of the correct count) I can’t rule it out. Sorry. 🙁

    Again, if you think I’m trolling you, by all means shun me. I’ve been shunned by experts and am bound to be again in the future. Always was an acquired taste, still am.

    *As always, grammar matters (and it’s always a schwa or a pronoun–they are the villains of spelling and clarity).

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  41. Just nutha ignint cracker says:

    @Jim Brown 32:

    Frankly, Biden should have pardoned the non-violent J6ers as well. You starve a fire of fuel.

    I’ll agree with you, but as far as the rest of the gang here goes, I expect that the anonymity of the internet is your friend on this point. I’ve found that hating on your enemies is one of the things that both sides do equally well.

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