Of Lame Ducks and Honey Badgers
Eleven weeks with no accountability.
Via Memeorandum, I see that President Biden has again used his pardon power on his way out of office.
The White House, “Statement from President Joe Biden on Federal Death Row Commutations“
I’ve dedicated my career to reducing violent crime and ensuring a fair and effective justice system.
Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole. These commutations are consistent with the moratorium my Administration has imposed on federal executions, in cases other than terrorism and hate-motivated mass murder.
Make no mistake: I condemn these murderers, grieve for the victims of their despicable acts, and ache for all the families who have suffered unimaginable and irreparable loss.
But guided by my conscience and my experience as a public defender, chairman of the Senate Judiciary Committee, Vice President, and now President, I am more convinced than ever that we must stop the use of the death penalty at the federal level. In good conscience, I cannot stand back and let a new administration resume executions that I halted.
Unlike the blanket pardon of his own son for any crime he’s ever committed, there is no personal benefit to him in this action. It seems perfectly noble and in spirit of the reason the pardon power exists to begin with. Further, I think it’s good public policy.
That said, this strikes me as yet another example of the problem of having someone hold the awesome powers of the presidency for two and a half months after a new President has been elected. Having been repudiated at the ballot box, Biden has nothing to lose. Like the honey badger, he don’t care. He’s able to do things in the lame duck period that he wouldn’t have dared do while he was still vying for re-election of trying to maintain a good working relationship with Congress.
That I happen to like this particular action is really beside the point. It’s wildly undemocratic to have the party in power lose an election and then continue to govern for weeks with zero accountability.
Corrected version: “I see that President Biden has again used his pardon power during his lawful term of office.”
I’m not persuaded a timeframe lower than zero days would make a difference.
If the rules were changed to, say, one week after election the new president takes over, then the previous president would stage these events for that week, instead of Christmas week/spreading them across 11 weeks. Staff would spend months writing up the pardons ahead of election day, just in case the POTUS was not re-elected.
With Tulsi Gabbard staged to take over leadership of our intelligence community and the US Justice Department poised for lawless revenge prosecutions, this feels like a very small problem – somewhere above pot holes and below the existence of the Electoral College
If only he could, would use that awesome power of the Presidency to address the undemocratic means by which unrestrained money greased the skids to allow a decidedly undemocratic candidate to ascend to the halls of power by bending a system to his will, casting off guardrails, norms, morals, and accountability.
This is the Achilles heel of our democracy, that now has forced a consequential pivot point upon us: the honor system of our liberal democracy has provided an “open port” to authoritarian rule.
And a conundrum: the dissonance of authoritarian use of of power to thwart authoritarianism.
I fear we’re going to be wringing our hands over this for some time to come.
@Barry: The problem is that, in the period between the election and the transfer of the power, a President operates under considerably different constraints. He simply wouldn’t have done this if it were going to be subject to the judgment of the voters. The pardon power, in particular, simply shouldn’t exist during the lame duck period. He had nearly four years to do this; he didn’t precisely because it would have been controversial, if not wildly unpopular.
@Tony W: It would require a Constitutional amendment(s), so it’s not going to happen. But I would like to see the transition period considerably shortened (which would in turn require fixing our wildly inefficient system for counting votes) and for very limited (essentially, emergency-only) powers to exist during lame duck periods for both Presidents and the Congress.
@Rob1: I don’t know what the answer to that problem is. Democrats spent four years arguing that Trump was a threat to our democracy and half the country either didn’t believe it or didn’t care.
James, I think you are underestimating just how much public policy gets crafted by lame ducks, and while that can be a bad thing, it can also be a very good thing. A minor example of a good thing is Ben Cardin calling in his accumulated chits right before his retirement to keep Trump and the Republican toxic loons from screwing Baltimore, MD and the entire Northeast Corridor by tanking the Key Bridge funding. This would have been an ugly fight but for the fact that all involved know that Cardin won’t be around after December.
For a less good cause, I first realized the uses of being a lame duck back in the 80’s when my local newspaper used to publish the roll call vote on all major bills before the Congress. There was a lot of controversy at the time about Congressional pay raises and I saw that there was vote for such a raise, and about half of Congress Critters had voted against it, but it squeaked to a narrow victory. Then that vote was immediately followed by another one to repeal the previous one. The same Critters that had voted for it, were now voting to repeal it! Nevertheless, it went down to a very narrow defeat and Congress got their pay raise. Looking down the list I saw that for the critters that voted to raise the pay AND to not repeal it, there was an unusual number of ones that weren’t running for reelection. And sure enough, my local Congress Critters trumpeted their vote either against the pay raise, or to repeal it, saying nothing about their tactical switch. As far as I know, nobody ever called them out on it.
@James Joyner:
If there’s one thing this election resolved, it’s that the only actual constraint in US politics is “who’s going to stop me?”
Just because you want the Democratic party to embrace fighting with one arm behind their back in the name of your sense of aesthetics doesn’t obligated them to do so.
Having been repudiated at the ballot box, Biden has nothing to lose. Wow – repudiated. I don’t remember seeing Joe Biden’s name on the ballot, and the vaunted “half the country” turns out to be not quite half of the people who voted, so *maybe* it’s 29% who “repudiated” Joe Biden. If it’s not right to give a lame duck president the awesome power of the office for 11 weeks, what is it to give those powers to a disordered con artist – who won’t have to face the voters again – for 4 years?
A Festivus “airing of the grievances” post. How quaint. And if you can’t bring yourself to object to the action itself or its ramifications, you can always argue that it’s “a sin to do good on the Sabbath.” Well played, I guess…
(The one abiding principle remains that conservatives are against whatever liberals do. And Biden isn’t even all that liberal.)
@Charley in Cleveland: Nah… I gotta take Joyner’s side on the half the electorate debate. If your side only got 48.8% of the vote, that means 51.2% voted against you. More than that if you include the people who didn’t even register or go to the polls (current estimate ~20% of the total, IIRC).
Fortunately, you’ve got the right team coming in to argue for “alternate facts” for the point.
I think I’ma take the rest of the day off. I’ve trolled two consecutive comments and it’s only 6:30 a.m. PST.
James, you seem to be writing an awful lot of posts about the “impropriety” and “bad look” of Democrats using every legal means available to them to oppose the trashing of the country by a bunch of fascist and corrupt lunatics.
In Trump’s lame duck period he pardoned his accomplices, tried to get votes changed, launched a fake elector scheme, initiated several dozen meritless lawsuits, tried to suborn the VP from his Constitutional duty, and started a riot. That seems a far more cogent argument against a long lame duck period than this trivia. Perhaps the lesson isn’t that the lame duck period is bad, but that we shouldn’t elect assholes.
@James Joyner: “The pardon power, in particular, simply shouldn’t exist during the lame duck period. He had nearly four years to do this; he didn’t precisely because it would have been controversial, if not wildly unpopular.”
IMHO, that is not a good argument.
The argument that lame duck powers shouldn’t exist seems backwards in this day and age of political jellyfish. The majority public isn’t always right, something that The Federalist Papers were very clear about. Removing the pressure of running for reelection can allow a president to do what is right, rather than what is popular. I’d definitely add moving away from the death penalty to that list.
@James Joyner: Even with such restrictions, a POTUS could do all the stuff after the swing-state polls close on Election Day.
Pre-staged, this kind of activity can happen in a microsecond with the press of an “Enter” key.
@Jen:
The problem is that it allows presidents to do what it is wrong, rather than what is popular as well.
I am less caught up in the in the “Biden lost” part of James’ position, only insofar as he is still the president, operating in constitutionally created liminal space between the election and inauguration.
But, from a democratic theory POV, he is absolutely right to note that if a president or congress would not do X because they fear the electorate and will only act when the electorate is out of the picture, we have a problem of lack of democratic accountability.
This is not the case of asking the Dems to play nice, it is pointing out a real flaw in our system (one of many, and by no means the worst one). It is also one that is unlikely to get fixed.
FWIW, I agree with the outcome of Biden’s actions (as I would note, does James).
Note that one can have the above view about lame duck governance and still like the outcome, and think that it was clearly within Biden’s powers and prerogatives to have done it.
This presupposes that the only responsibility of those elected is to follow the dictates of the electorate. Essentially, that every action should be based on popular vote.
Oh, come now, we all know that Joe Biden isn’t doing these things. Hell, they may even be using the autopen to sign his name.
This is being done by the Democrats who have run his administration and they’ll do it again if they ever get back in a staff position.
There’s your “democracy” according to Democrats.
There are now four years to dissect who was actually running the country when Joe Biden was diminished and make that an issue in 2028.
@MarkedMan: No. It presupposes that officials are ultimately accountable to the voters. That they do what they do in the context of the constitutional order, including things that are unpopular and they will have to justify to the voters, and then the voters render judgment at the ballot box.
It is fundamental to the very notion of representative democracy.
It is quite different than having a plebiscitary democracy wherein each item is up for a vote.
JKB, it’s good to see Republicans finally openly admit that “democracy according to Republicans” is only done by unelected bureaucrats. Be your true self!
Musk is actually doing more for Republicans than Republicans ever fantasized George Soros was doing for Democrats.
Fun to see that all the intentional lying about Soros on Fox these past many years was intended to bothsides the issue so that Republicans could do the same whenever they had a chance. They didn’t believe a word of it. The difference, of course, is that Democrats never actually did any of those things that Republicans are now openly cheering.
@Steven L. Taylor:
While I agree that the reality is quite different, the standard you are attempting to impose isn’t: An elected official should only engage in actions if they think the voters would agree with them. In contrast, I think that an elected official should do what is right, and I don’t see the problem with them waiting to do that until they are not standing for election, if they know it might result in the loss of the election.
And contrary to your implied opinion, I don’t believe that tying the hands of those attempting to do good will also tie the hands of the corrupt and malignant.
@JKB:
Why not make that an issue now? This is BS, but c’mon, JKB, step up and explain how your conspiracy theory should be a problem for the country yesterday, today, or 4 years from now.
If I were consider the worse case scenario under your theory, a diminished Joe Biden was propped up his entire 4 year term by his VP, his cabinet, his staff, and, if we want to be really conspiratorial, some mysterious unelected moneymen.
What’s the scandal?
That the Biden Administration lied to the American people? You support the GOP, so we know you don’t give a damn about lying. If Republicans, especially Trump, couldn’t lie without consequence they’d be mute.
Was it weakened leadership? While so diminished, Joe’s shadow presidency strengthened NATO to stand against Russia’s invasion of Ukraine, spearheaded the passage of major legislation like the CHIPS and Science Act and the Inflation Reduction Act, was the best presidency for labor in my lifetime, and pulled whatever strings possible to a soft landing from the COVID economy. To name a few. You only wish Trump had been/could be that effective.
Or was it that there was an unknown puppet master unaccountable to the norms of the office? You don’t want to upset Elon now, do you?
Diminished? I don’t see the evidence. More importantly, I don’t see the results.
@Gavin:
Completely correct. And yet another stark illustration of the degree to which our political system, our media, and our national consciousness has been utterly deformed by the malevolence of the reactionary right.
So it looks like Biden commuted the sentences of all federal death row prisoners except for three:
– Dylann Roof, who killed nine Black church members
– Dzhokhar Tsarnaev, Boston marathon bomber
– Robert Bowers, who killed 11 Jewish Synagogue members
I’m directionally against the death penalty as a matter of principle, but it’s easy to see why those three were not commuted.
Anyway, regarding the topic of the post, I don’t think this is a big deal. Lame duck pardons have a long and controversial tradition. A shorter transition period won’t stop them from happening. Biden’s sweeping pardon of his son is much more problematic from a norms perspective.
As far as a long transition goes, it’s normal, and people are used to it. Furthermore, to the extent that people want a strong, complex, and large Executive branch, a non-trivial amount of time is required for a transition. The alternatives comes with a lot of significant tradeoffs. If you want to keep a powerful Executive branch, but reduce transition time, then you need to reduce the burden of staffing and confirmations. That comes with tradeoffs, some of which are undemocratic.
Although it didn’t happen this year, our era of close elections and states like California that take a month or more to count votes in the best case and certify results means that time must be built to allow for that.
We are not a parliamentary system with a shadow government in place and ready to go on short notice. To the extent what you identify is a problem, it’s one that is not easily fixed without resorting to pie-in-the-sky solutions – is that juice really worth the squeeze?
@Steven L. Taylor:
Every second-term President and every President who chooses not to run (like Biden) is in a position during the transition where they were not even a choice on the ballot. Why is that problematic from a democratic accountability POV?
As soon as a President wins a second term (including Trump as President-elect), they are a “lame duck” and democratic accountability from voters is over except for the normal systemic restraints on Presidential authority because they will never face the voters again. I fail to see why it suddenly becomes a problem in the last two months of the term of office. That’s the way the system works with term limits.
Big news locally is that Dzhohkar Tsarnaev, the surviving Boston Marathon bomber, is one of three federal death row inmates whose sentence was not commuted by Biden.
So, when does a lame duck become a lame duck, exactly? Republicans did not allow Obama to replace Justice Scalia because it was an election year, and this politicized the Supreme Court and led to many dire consequences for our democracy.
Please, move on. I can help with some issues of more immediate importance:
Setting up oligarchy though appointment of wealthy supporters
Using the military for martial control of domestic matters
Using political threats to thwart bipartisan legislation
The president having immigrant grandparents and an immigrant wife while threatening mass deportation
Having an unelected billionaire as his co-president (the Mumps)
And then there is Congress and the Senate. Is everything they do during the transition also illegitimate, like passing bills to keep the government running? The Senate will be controlled by the GoP in the coming year – is it problematic that the current Dem-controlled Senate is still working on judicial confirmations for Biden?
I was curious whose sentence wasn’t commuted. Per The Guardian,
What woke shit is this? Not pardoning the white supremacist Dylann Roof? Just because he’s white? It seems like the biggest crime in America is to be a white man. Bowers, also white.
And Tsaernov… eh, pretty light skinned. But raised Muslim. And still owes student debt. I think we’re waiting on Fox News and/or Elon Musk to decide how angry to be about that.
@Andy: Two thoughts:
1. You have hit on why I don’t like term limits as a general matter.
2. But even a second term President has an incentive to not damage their party in the mid-terms and in the presidential election (with the mid-terms having more personal salience). There is, therefore, far more democratic accountability in those circumstances than there is in the lame duck period between Election Day and Inauguration Day.
@Skookum:
The lame duck period can begin when the opposition party gains control of one of the houses of congress and the prez can’t run for reelection. It is an issue of political power.
@Andy:..And then there is the Congress and the Senate.
The Senate is the Congress. So is the House of Representatives!
Orwellian fake outrage. It’s actually wildly undemocratic to demand the unconstitutional temporal disenchantment of the record 81+ million Americans — a majority, unlike President Musk’s narrow plurality — who voted for Biden to serve as president from January 20, 2021 until January 20, 2025. It’s the opposite of undemocratic for a duly- and popularly-elected president to act legally while serving out his full term. As opposed to criming, staging a coup, stealing federal property, and inciting a terror attack like rapist Trump did.
If Biden does anything outrageously out-of-bounds the next regime can seek corrections starting Jan 21st, and the electorate can punish his party in Nov. 2026. (Sadly, if Biden were to commit crimes, he’s effectively immune thanks to the corrupt MAGA Court’s unilateral of the rewrite of constitution.)
Lame duck periods exist in every elected office, pardons and legacy-cementing final acts included. Biden’s lame duck actions are in line, not a crisis because just some have an odd fetish for inventing new double standards for Democrats only.
@Andy:
Now THAT could be problem as Trump and his Enablers already don’t care even a whit about “normal systemic restraints on Presidential authority.”
@Sleeping Dog:
I was being facetious, but according to your definition any 2nd-term president who does not enjoy control of both houses is a lame duck. Are you really saying that the opposing party should then call the shots? That negotiation and bi-partisanship is a fanciful notion? In that case, functional democracy in America is doomed.
@Andy: @Skookum: To me the “lame duck” period is strictly that time between the election and the transition to a new party.
@Andy: Congress should be able to respond to emergencies during the lame duck period. They should pass budgets during normal order, as required by the Constitution.
So here’s an actual argument for a very short transition period: It makes it harder for someone to organize a coup* attempt.
Here’s an argument for the long period that we have: Under normal circumstances it allows for an extended period of hand over, where the incoming officials and their aides can be brought up to speed. Given that the US invests more power than usual in appointees rather than career bureaucrats, this is especially important.
*I know there’s another word for an elected leader who refuses to cede power but five minutes of googling didn’t do me any good. “Auto-” something?
@MarkedMan: autogolpe
@James Joyner:
May I suggest that your argument is a form of “obeying in advance.” We don’t have a parliamentary system and not likely to have one. I am not opposed to exploring lawful re-architecting of the transition period for the benefit of the American people, but I am adamantly opposed to tying the hands of the incumbent president when the incoming president torpedos bipartisan legislation though political intimidation.
Further, can you give me one example of when Trump was held accountable?
These are not normal times, Dr. Joyner.
@Skookum:
If you are an institutionalist, as I think Dr. Joyner clearly is, then you are going to raise debate with those who still honor the institutions of government – which is only the incumbent party in this moment. A home inspector doesn’t discuss potential improvements to building codes with the arsonist. I suspect this isn’t lost on Dr. Joyner.
@Skookum:
Yeah, one of the reason second term presidents focus on foreign affairs is they lack the leverage to get big things done unless their party has a trifecta.
It’s not a flip the switch condition, but gradual, the shorter the time frame to the next election, the less reason to tackle, difficult but not emergency issues, the President’s best staffers and political appointees in the cabinet, begin to leaving to take jobs outside of government.
Given current levels of partisanship and the closeness of the majorities in congress, trump may even be considered a lame duck after his first year in office. If in 2025 he doesn’t advance his program and the economy crashes, R congress critters are likely to begin ignoring him and pursuing their own agenda
@James Joyner:
Doc J, it’s long past time to stop skipping and tip-toeing around the one and only real reason Trump was elected again. There was no way America was going to elect a Black woman president. We are an acutely racist and misogynistic nation, domestically and via foreign import. America hates women and America hates Black people.
I don’t know which America hates more, though I’d guess it hates women more because, at least, the nation elected a Black man, once upon a time. This nation is psychologically screwed up, and there’s no sense beating around the bush about it.
@Scott F.:
Mmmm. A home inspector busy chastising the current occupant for using the wrong house paint, while said arsonist prepares to burn the whole house down, is maybe a wee bit blinkered in his triage of priorities.
To wit, per @Tony W:
And, @Skookum:
QFE. But sure, interesting small bore stuff is worthy of notice and mention. Light convo has a purpose, especially during the holidays.
I’m not sure, but I think a duck with a bum leg could still fly.
Obligatory lame duck joke:
An alien ship lands inside a military base in the US on January 22nd 2025. Several aliens come out and tell the nearest human, “Take us to your leader!”
The soldier replies, “Can you come back in four years?”
Sometimes I think Dr. Joyner desperately wants something normal to complain/post about, and that posts like these are just a side effect of when that happens.
But the lame duck period is a carefully crafted part of our government. A more honorable part of our constitutional order than states rights, and a less corrosive aspect than lifetime appointments to the Supreme Court.
And we should be careful to not elect people who will be immediately corrupted by the opportunity, or who arrive pre-corrupted.
Also, I would like Biden to lift the moratorium on federal executions, and his justice department to schedule the execution of Dylann Roof for late March. Use the federal government executing a white supremacist as a wedge issue between Trump and the Buggaboo boys in his base.
@Rob1: All democracies have the Achilles’ heel of electing a dictator, really. Government by committee can lock up, become ineffectual, and at some point We The Peoples will feel a need for a government that can get things done. There is truth in that old saw about committees being primarily about shedding accountability, and the is no shedding of accountability for one guy calling all the shots.
I have reluctantly come to believe the American people are near that point. Sad considering it is happening to a people as collectively well-off as any in history, but it is what it is. Most people don’t even know who their representative in Congress is according to some polls, but everybody knows who the POTUS is. The Euros are becoming dictator-curious too these days too, I suppose. RW fascists seem to constantly be making gains. Sometimes people have to re-learn the hard lessons the hard way.
Biden should sign the executive order banning the private ownership of Firearms by member of non warrior (law enforcement and military) castes that Glenn Kirschner says will be upheld by the DC circuit courts.
@dazedandconfused:
It almost makes one think the Roman Republic prescient when they instituted the office of dictator. This was a magistracy, but not like the others. A dictator could be appointed (by the Senate, I think, but am not sure), and he’d serve for six months. He had a great deal more power than a consul, and did not have to account for his actions. But at the end of his term, he had to step down and relinquish all power (and answer for misdeeds, if he committed any in office).
The idea was to use such office in case of grave emergency, when decisive action was required. Several men served this position well enough, and all stepped down as prescribed.
Except by the late republican period of Rome, the office was used by more ambitious men who wanted power without accountability, and they coerced te Senate into consenting to such an appointment. Nor did they step down at the end of their terms, because the terms were for life.
First Sulla, then Caesar. Arguably they were good men and had good intentions. One can argue their merits in the context of their times, and of ours, but in the end they hastened the fall of the republic and the institution of the empire.
The imperial period of Rome had several inept, corrupt, cruel, and repressive emperors in varying mixtures of these qualities. And they all reigned for life.
@MarkedMan:
That is not what I am saying. Am I really being that unclear? (A serious question).
@dazedandconfused:
All this re-learning is going to kill us. The time frame within which to collectively respond to our biggest threat(s) is narrowing.
@Kathy:
They may have been thinking about what happened to Athens in the older Greek republic, which they were attempting to copy. Fell to Sparta after being unable to get their act together for a serious war. We have tacitly granted dictatorial powers to POTUSes in wartime, as everybody could see time was of the essence.
Republics are terribly fragile things. Probably the reason the people writing the Constitution had to dig back nearly 1,500 years for something to draw from. Nevertheless it took broad hold in the Western culture in the 20th century. “If you can keep it”, as Franklin said. Btw, the Ken Burns pieces on Ben Franklin are worth the time. That guy was special.
@Steven L. Taylor: Not unclear, but I think your position inevitably leads to such an outcome.
Let me ask this: a town council realizes that they will have a revenue shortfall and so vote to increase the water rate, but do so on the last meeting just before Christmas. In your eyes, by seeking to have it make the least political impact possible are they eschewing democratic accountability?