Democrats lived by lawfare. They not only failed to take Trump out, they helped get him elected. Now, they are living with the consequences.
I don’t believe President Biden is done quite yet with his gross abuse of the pardon power. As this is written, there are still about three hours left in his presidency — plenty of time to pardon key players in the Biden family business of selling Ol’ Joe’s political influence to the Chinese Communist Party, Ukrainian oligarchs, and other agents of corrupt and anti-American regimes. But the preemptive pardons announced this morning for the House January 6 Committee, Dr. Anthony Fauci, and General Milley (see our David Zimmermann’s report) continue the scandal.
To my mind, the interesting question is whether these public officials will accept the grants of clemency.
President Biden — or, I should say, Jill, Hunter, and whoever else on in the White House is actually exercising the powers of the chief executive of our government (another huge scandal) — highlighted the fraught question in today’s announcement, insisting: “The issuance of these pardons should not be mistaken as an acknowledgement that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense.”
But of course it will be construed that way, fairly or not. In its 1915 decision in Burdick v. United States, the Supreme Court ruled that a pardon must be accepted in order to have legal effect because of the “confession of guilt implied in the acceptance of a pardon.” The Court elaborated that, in terms of public shame, a pardon can involve “consequences of even greater significance than those from which it purports to relieve.”
I have never been persuaded by this reasoning, which was not necessary to the Court’s decision. Today, far more than in 1915, we live in an age of politicized prosecution, in which making the legal process punitive and humiliating is more the objective than even obtaining convictions. To my mind, it’s perfectly reasonable for people who believe they are innocent but fear being put through the wringer to accept a pardon. But that said, there is sure to be a public perception of culpability. And it must be noted that, because a presidential pardon provides immunity only from federal criminal liability, recipients can still be subjected to unpleasant parts of the federal criminal process (such as being forced to testify in the grand jury, since a pardoned person no longer has a Fifth Amendment privilege against self-incrimination), in addition to civil suits, administrative proceedings, and state criminal prosecution.
In considering whether to accept pardons, the members and staff of the irregular and deeply politicized House January 6 Committee are ill-positioned to complain about the perception of guilt attendant to them. To repeat what I said last month when the topic of preemptive pardons was broached:
[I]n some of the [Committee’s] slickly produced made-for-TV hearings, Vice Chairwoman Liz Cheney — a Republican with strong conservative national security credentials who decided to become the personification of Trump abhorrence — made a huge deal of testimony that, following the Capitol riot, several of her then-fellow House Republicans had made entreaties to the Trump White House about pardons.
These Republicans hadn’t broken any criminal laws. They had engaged in partisan, duplicitous behavior: playing along with Trump’s post–2020 election “stop the steal” mischief and soft coup attempt. They knew these stratagems had no possibility of reversing the election result, but they calculated that the performance would enhance their status as MAGA darlings. But then, as sometimes happens, things got out of hand: Trump supporters rioted at the Capitol. Suddenly, Trump’s House GOP allies were thinking that maybe they needed pardons because the Biden-Harris DOJ was surely going to make their lives miserable — actual indictments might be unlikely, but years of anxiety and legal fees loomed. Maybe if Trump would pardon them — especially if he was thinking of pardoning himself — that would discourage the onslaught. Naturally, Cheney portrayed her colleagues who had made pardon inquiries as having effectively confessed that they were felons.
Well, here we are.
As I said in the piece just excerpted, I believe Adam Schiff — the California Democrat and Trump nemesis who served on the January 6 Committee and is now in the Senate — was right in stating that preemptive pardons for public officials were a bad idea. No matter how much partisans are despised by their opponents, they didn’t break any criminal laws and, like the presidential immunity Trump established in litigation when he was charged with crimes, the law gives them analogous forms of immunity for official actions.
But these are bad times for the law, and bad times lead to bad decisions. Democrats decided to live by lawfare. Having failed in their aim to take Trump out — having, in fact, helped him get elected — they are living with the consequences.