Biden using the pardon power to thwart Trump is good, actually

Let’s not make Merrick Garland’s mistake again

Image: kenny, CC

Outgoing president Joe Biden pardoned his son, Hunter, to protect him from prosecution by a rabid and vengeful incoming President Donald Trump.

In response, a lot of pundits, and a lot of Democrats, denounced the action as nepotism, or as a clear abuse of the pardon power. Colorado Governor Jared Polis insisted, “This is a bad precedent that could be abused by later Presidents and will sadly tarnish his reputation.” Senator Peter Welch of Vermont said the pardon was “unwise.” Legal journalist and Brookings fellow Benjamin Wittes argued that the pardon was “self-dealing to a family member” and that it was “wildly broad” since it immunizes Hunter for any crimes he may have committed over the course of a decade.

You can argue back and forth here on the merits. But Tim Miller at the Bulwark makes a big picture argument; he worries that support for the Hunter Biden pardon is a sign of disintegrating norms and an erosion of faith in the rule of law among Democrats.

Trump was found liable for sexual assault, convicted of hush money payouts in the 2016 election, and of course led an insurrection in 2020. Nonetheless, he was reelected. Democrats, Miller says, are now following Republicans into nihilism; the Hunter pardon is Biden, and his supporters, insisting the LOL, nothing matters.

Miller then makes an appeal to decency and liberal values. We have to follow the rules and demand better of ourselves than of the opposition, he argues. “There is one thing that does matter in this life. And it’s the only thing you actually control: Acting in accordance with your own integrity. In a way that lets you feel good about yourself.”

That’s a stirring argument. But I think it’s one that can cut various ways. Because…does “acting in accordance with your own integrity” really have to mean putting a “kick me, fascists” sign on your face and then letting the fascists kick you? When Trump says he will use the vast powers of the presidency in unprecedented and violent ways to go after his personal enemies, do you just have so sit on your hands and say, “well, gee, that sucks, but at least I’m not dirtying myself by trying to stop him”?

Or, maybe, might integrity mean refusing to let Trump roll over you?

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Fight, for fuck’s sake

There are certainly some things Democrats shouldn’t do and shouldn’t countenance. Democrats should not, for example, agree to let fascists target trans people in order to get votes (not least because it won’t work). They shouldn’t let party leaders like Bob Menendez indulge in an orgy of corruption with impunity. They shouldn’t support a genocide in Gaza either. (Biden hasn’t done so well with that one.) There are lines you shouldn’t cross.

But when thinking about which norms matter, and what integrity entails, it’s also important to recognize that fascists like Trump count on the fact that liberal institutionalists are often conflict averse, and that they will sometimes even refuse to defend themselves for fear of the opinion of supposedly neutral arbiters like (say) Benjamin Wittes and Tim Miller.

The most egregious example here is Merrick Garland’s decision to slow walk or stymie prosecution of Donald Trump for his 2020 coup attempt. Garland didn’t want to prosecute Trump because he feared that such a prosecution would look partisan; he delayed for two years until revelations by the January 6^th commission and (I’d argue) revelations about Trump’s misuse of classified material post presidency forced him to belatedly recognize that Trump was not in fact going to disappear or stop criming. By then, it was too late, and Trump (with the help of the supine and criminal Republican party) was able to run out the clock.

Failures like this are enabled by the conventional Beltway/pundit wisdom that says that the real threat to democracy is partisanship—rather than, say, fascism. Garland (and presumably Biden in choosing a centrist equivocator for his AG) believed that you protect the Constitution by refusing to identify fascists as fascists or bad actors as bad actors. The goal is to be even-handed, and refuse to see the boot coming at your genitals. You avoid a constitutional crisis by pretending there is no constitutional crisis; as long as you pretend you can’t see them, then the emperor isn’t wearing jackboots. (Another disgusting variation on this is Congressman Jim Clyburn’s recent suggestion that Biden should pardon Trump.)

Again, this approach has worked very badly. It has not protected the integrity of Garland or of Biden. It has made them look like weak fools, and it has made it look like liberal institutions are unable to handle fascism or to protect vulnerable people from fascism.

Use the power you have

In contrast, Biden’s decision to pardon his son demonstrates, at least, that Democrats can in fact respond to and preempt fascist bad faith attacks on people who oppose them. Trump nominees have been boasting about going after Hunter as a way to harm Biden, and to frighten any Democratic pol who would dare oppose MAGA. Rather than just letting the fascists make an example of his son, Biden used the power he has to stop them.

Now, if Biden just uses the power to protect his son and no one else, that would obviously be awful. But Biden is in fact already considering pardoning a range of Trump targets, including former White House infectious disease specialist Anthony Fauci, former Vice President Mike Pence, former Congresswoman Liz Cheney, and people who served as witnesses in Trump trials (hopefully including Stormy Daniels)—all of whom have been threatened with prosecution by Trump officials.

And in my opinion, Biden should go much further. He should immunize every woman who has come forward to accuse Trump of sexual harassment and violence, including E. Jean Carroll, who won a judgement against Trump in a civil trial for sexual assault. He should immunize Ann Selzer, a pollster who’s poll of Iowa showed Harris ahead, and who Trump has threatened with investigation.

Biden should, in other words, cast his net as broadly as possible, protecting not just high-ranking politicos, but ordinary people who have defied Trump in any way. Trump has promised to use his power to revenge himself upon his supposed enemies. Biden should use his power as president to thwart fascist revenge, and to show people that when fascists come for you, the Democratic party has your back.

Did I mention you should use the power you have?

Simply immunizing those Trump wants to target isn’t enough though. Trump has made it clear that he has little regard for the rule of law, and that he intends to govern on the basis of bigotry and rage. His reckless promises to weaponize the justice system to harm outgroups—such as immigrants—and his demonization of Black and brown people throughout his career demonstrates that he absolutely cannot be trusted to administer justice impartially.

If you take the threat of fascism seriously, this is bad (to put it mildly). Biden is currently president, and he has the power to address at least some of the most egregious dangers of Trump’s criminal justice approach. There are forty people who are currently on federal death row. We know that Trump will not consider extenuating circumstances or try to see justice done; of the 16 federal executions since 1988, 13 of them occurred during Trump’s last term. Biden should commute all sentences for federal death row inmates to life imprisonment.

There are a lot of other people Biden should pardon—like for instance Native American activist Leonard Peltier. Biden should also take preemptive action to expand protection for asylum seekers and to shut down the worst detention centers to interfere with Trump’s efforts to target and torment undocumented people

Biden has so far been leery of granting pardons and clemency. That’s not surprising; he’s always been part of the pro police wing of the Democratic party. But with Trump incoming, the calculus should change. Democrats can’t stop Trump from taking power, but they can ensure that he does not have power over as many people by providing broad clemency for people under Trump’s thumb.

People are desperate for action

Some critics argue that blanket pardons would be challenged in court; they argue that Trump can always find someone else to persecute. They argue that Trump will use Biden’s pardons as an excuse to abuse the pardon power (which he already abused in this first term and has already promised to abuse in his second.)

It’s true that Biden’s pardons may not help everyone and may be overturned or blocked. It takes time to do that, though. And slowing the wheels of fascism is important. A lot of the next four years is going to be trying to stall Trump long enough to try to win the House in 2026, or eject Republicans in 2028. Every barrier we can throw up matters. And sweeping pardons would foil Trump, and quite possibly send him into a counterproductive rage spiral, leading him to abandon other (horrible) priorities in a desperate effort to prosecute people who have been immunized.

More than that, people are just desperate to see someone fighting for them. They wa t to hear Democrats like Biden say, “yes, Trump is a menace and we’re going to do what we can to stop him.” When governors in blue states do this, it’s heartening. When Biden seems to be trying to normalize Trump with friendly photo-ops, it’s…not heartening.

It’s not a display of integrity either. Too often, “integrity” is defined as “lying down so fascists can step on you.” It’s important not to just say, “LOL nothing matters.” But if Democrats want people to feel that things matter, they need to act like things matter—and that means modeling and embracing resistance.

Joe Biden is still president; he still has a great deal of power. If you’re arguing that he should refuse to use that power, you’ve lost the plot. Trump’s second presidency is going to be horrible. Democrats can help mitigate the worst harms. But not if they take the Merrick Garland path of supine failure.