Selective Outrage in the Battle of the Pardons

'Tyrannical' Trump v. Good Ol' Joe . . .

Mainstream Media and Leftist narratives about “Tyrant Trump” will certainly be fed by Trump’s recently-fulfilled campaign promise to pardon the J6 protestors. Predictably, such criticism is largely coming in the form of classic ‘DARVO’ accusations from the Mainstream Media, aiming not (only) to make Trump look bad but also to create a false comparison with their own norm-altering misdeeds. Indeed, the Left and the Media would have you believe that Trump’s J6 pardons are significantly worse than, or roughly equivalent to, Biden’s recent pre-emptive pardons of everyone and their mother… But is that really the case?

What are the Normal Boundaries of Presidential Pardon Power?

Firstly, lets think about the objective norms of pardon power. Quantitatively, there’s no hard rule for how many pardons is “too many.” This is fortunate for Joe Biden, who pardoned over 8,000 people in his single term—surpassing Obama, who pardoned 1900+ individuals across his two terms. Trump, meanwhile, pardoned a mere 237 people in his first term—less than nearly every other modern president. Luckily, we have a lot more commentary on the qualitative norms surrounding the pardon power—much of it from Democrats who, during Trump’s first term, engaged in fear mongering and wild speculation about Trump’s potential ‘abuse’ of the pardon power. Needless to say, these accusations haven’t aged well.

In 2020, the media and democratic leaders were decidedly unimpressed by Trump’s rumored pardons. The New Yorker speculated that Trump might pardon “associates in order to protect himself against snitching”, calling it “self-interested, rewarding political support and personal loyalty”; and Nancy Pelosi called pardoning associates “staggering corruption.” The House Judiciary Committee debated two bills and an amendment aimed at dissuading Presidents from abusing the pardon power, with Chairman Jerry Nadler taking the bold stance that “allowing complete immunity from criminal prosecution merely because of the office a person holds would make a mockery of the rule of law.” Further, House Intelligence Committee Chairman Adam Schiff argued that Congress should receive all case evidence whenever a President pardons himself or his family, because pardon power “is not unlimited, and was provided to remedy injustices, not to cover up for a president or shield him from potential criminal liability.” Most staggeringly, in a Biden and Harris joint interview with CNN, Biden specifically voiced his concern at how the rest of the world would view the U.S. “in terms of law and justice”, and his concern at the precedent that Trump would set for future presidents, if Trump were to pardon his children and family, and engaged in unprecedented preemptive pardons. He further vowed that we would not see that approach to pardons in his administration.

All this moral posturing, of course, did not stop Biden from being the first ever president to pardon his own family members and to engage in pre-emptive ‘blanket pardons’. Biden’s ‘pardon party’ really did cover all his bases, including pardons for pedophiles associated with international enemies/personal business partners, his own derelict son, as well as 11^th hour inauguration day pardons for the rest of his family and political supporters, like Dr. Fauci—who has already been proven a liar about basic COVID facts, including during a Congressional oversight hearing.

“Self-interested”? Check. “Rewarding political support and personal loyalty”? Check. Protecting himself from “snitching” and “potential criminal liability” and otherwise making a “mockery of the rule of law”? Check. Check. Check. In Biden’s own words, breaking a norm that would set a concerning precedent for all future Presidents? Check. This means that, like it or hate it, we have new norms for what constitutes appropriate use of pardon power—including pardoning political leaders without any investigation or transparency about crimes they might have committed.

At this point, Trump would have to do a whole lot to “tyrannically” break those norms any further. Biden smashed through them for himself and his party, and (as discussed here) he cannot just have his cake and eat it too. Especially if Biden’s only cover story for the pardons is that they are uniquely necessary to protect against Trump’s unique capacity for retaliation—which is a tough sell, considering that Trump never retaliated against anyone in his first term. If we want to contemplate new boundaries for pardon power because of Biden’s misconduct, and discuss bills and amendments to prevent what Biden did, that’s fair enough—but don’t let the media fashion Trump into a dictator for using the pardon power in a manner well within the norms set by the previous administration.

Whose Pardons Actually Let Criminals Off Scot-Free?

Secondly, whatever rhetoric gets thrown at this issue, we can still objectively look at whether criminals truly evaded Justice under Trump’s pardons compared to Biden’s pardons. To be clear: J6 was not a good day for America; Donald Trump could have done more to end the protest once things got out of hand (even if he only ever asked for them to peacefully protest in the first place); trespass on federal buildings is a security and safety threat; and violent, threatening behavior is never an acceptable form of protest. That being said, if you believe that Donald Trump ordered those people to initiate an insurrection at the capital and that these people were following the orders of the current POTUS, who they subjectively believed to be calling on them to protect democracy from a ‘sham election’. . . we at the very least have some equal protection issues, and possibly even some entrapment concerns.

Entrapment is a defense to criminal charges on the basis that the defendant only committed the crime because he was convinced to do so by a government agent, which shields individuals from liability for crimes that they would not committed if they were just left alone, and not pressured, coerced or tricked. The basic elements are that (1) a government agent induced a defendant to commit a crime; and (2) the defendant’s lack of predisposition or inclination to commit the crime otherwise. Fraud is a recognized means to coerce someone to commit a crime.

For example, it would be a decent entrapment case if (1) a government agent like the sitting U.S. President actually induced a group of people to commit crimes like trespass, obstruction and assault with a ‘fraudulent’, fear-inducing claim that doing so would patriotically “stop the steal” and save everyone from tyranny; and (2) these people were not generally predisposed to these crimes, and its more likely than not they would not have participated in them without those inducements. Similarly, it would be a decent entrapment case if it ultimately comes out that the ‘conspiracy theories’ are correct, that (1) government agents such as undercover agents and deep state politicians actually induced groups of people to commit crimes like trespass, obstruction and assault (such as by opening the doors and waving people into the capital, which there is confirmed video footage of, or by initiating physical altercations with them); and (2) these people were not predisposed, and just simply would have engaged in normal, constitutionally-protected protest absent such inducements.

In contrast, if you don’t believe at all that Trump ordered those people to attack the capital, and it would’ve been objectively wrong for the J6 protesters to think that . . . well, you’re probably right. But, distinctly, there are still very valid “equal justice” concerns for condemning all J6 protesters to their fate, just as a matter of fundamental fairness—namely, because the J6 protesters were imprisoned and condemned, while the ‘forgivably righteous’ 2020 BLM rioters could burn down private businesses and federal property without nearly the same consequences or public condemnation. Even if we can morally distinguish between the two, or prefer one cause over the other . . . it doesn’t really make sense to rage about the J6 protestors who didn’t suffer their ‘full penalties’ and shrug off all the constitutional concerns about their detainment, while being radio silent on whether BLM protestors went too far and even the most conservative of estimates on all the BLM damage and victims. Further, there are any number of other instances of Biden’s pardoning of “evil” people, who maybe didn’t deserve the leniency, which are getting basically no news coverage or public outcry—such as sentence commutations for 37 of 40 death row inmates (some of the worst killers in the world), including one for a murderer of two federal agents.

In any event: Trump’s 2024 election by popular vote, after campaigning on the promise of J6 pardons, means that a voting majority has at least given popular consent for his presidency (regardless of his J6 fault) and his intention for J6 pardons (regardless of their J6 fault).

Further, even if the most leftist, propagandistic perspective on J6 is taken on its face—and the new federal intelligence agencies do not conclusively prove any deep state orchestration of J6—it remains true that J6 pardons would extend to people that have already served years in jail. Although some J6 prisoners are accused of assault and property damage, and we can justly criticize the decision to pardon them, the vast majority already served years in jail for basic nonviolent trespass and obstruction offenses. Some have simply been languishing in solitary confinement, still awaiting trial—an egregious constitutional rights violation which requires any case against them be dismissed entirely. Pardoning all the prisoners now, after years in jail and unprecedented social, economic, and reputational injury, is not really letting them off without punishment. Especially if we compare such pardons with Biden’s largely preemptive pardons, explicitly aimed at ensuring his friends and associates avoid any investigation or punishment, and stay insulated from any reputational harm consistent with legal convictions or public knowledge of their crimes. After all, Trump could have issued a pardon for all these J6 prisoners any time between January 6^th and January 20^th of 2021, before Biden’s presidency and any opportunity to investigate and prosecute them. But, alas, Biden gets to be the only US President that passed historic inauguration day blanket pardons to insulate his supporters from justice—including pardons for testifying J6 police officers and J6 committee members, who may or may not have been involved in the alleged destruction of exculpatory evidence for the J6 protestors. How convenient . . .

In Conclusion . . .

When comparing Biden’s and Trump’s pardons of morally ambiguous characters, reasonable minds can certainly differ on the culpability and deservedness of those granted leniency. In fact, reasonable people could be forgiven for condemning all the pardons from these past couple months—both Trump’s and Biden’s. But only one of the two presidents is being labeled a “dictator” and being accused of heading a new American Oligarchy by mainstream news outlets and “bleeding heart” politicians. . . and it’s not the one that just gave decades-long preemptive and blanket pardons to friends, family and close business associates. Please, let’s put on our thinking caps.