President Biden Leaves Stage Left With A Few Final Moves

I provided some closing/opening thoughts about the change of the guard at the White House at my substack and won't repeat myself overall here.

Other than some words in honor of the passing of the previous head of Planned Parenthood, Cecile Richards, now former President Biden (to be consistent on labels) used his last hours to drop a few more pardons and commutations. 

He had earlier commuted around 2500 sentences involving non-violent drug offenses. A lot can be said about the need to expand the usage of the pardon power. Biden has still historically used it in comparison to others.  

[The Biden White House website is now down and replaced with the Trump White House website. You can find former presidents' pages archived and this one will be as well. So, no links yet.]  

For instance, Leonard Peltier will now serve the remainder of his sentence in home confinement. Peltier is a Native American activist convicted of murder of two FBI agents, who repeatedly has been the subject of political controversy. 

The commutation is justified thusly:

Tribal Nations, Nobel Peace laureates, former law enforcement officials (including the former U.S. Attorney whose office oversaw Mr. Peltier’s prosecution and appeal), dozens of lawmakers, and human rights organizations strongly support granting Mr. Peltier clemency, citing his advanced age, illnesses, his close ties to and leadership in the Native American community, and the substantial length of time he has already spent in prison.

More notably, Biden provided presumptive pardons to certain members of his family (not Jill or his daughter) and various others to guard against unjustified attacks. He argues that wrongdoing should not be inferred. 

Regarding the second set of people:

In certain cases, some have even been threatened with criminal prosecutions, including General Mark A. Milley, Dr. Anthony S. Fauci, and the members and staff of the Select Committee to Investigate the January 6th Attack on the United States Capitol. These public servants have served our nation with honor and distinction and do not deserve to be the targets of unjustified and politically motivated prosecutions.

You can read about a discussion of the constitutional usage of pardon power here. An early case (1915) is cited to show that a pardon "imputes guilt" but a later one (1927) argues pardons promote a public purpose. 

They are not just "acts of grace," that someone could simply reject. For instance, the pardon power could be used to promote public peace in cases of public disorder. Insurgents cannot hinder this effort by refusing the pardons.* 

Also, it is a bit absurd to say a pardon is always an imputation of guilt. Executive clemency is sometimes used because other means are not enough to address legal travesties. As an opinion that sometimes is wrongly cited to hold that there is no barrier to innocent people being executed stated:

Executive clemency has provided the "fail safe" in our criminal justice system. K. Moore, Pardons: Justice, Mercy, and the Public Interest 131 (1989). It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence.

Biden's actions here are a red flag of what the upcoming days will bring. As he argues:

I believe in the rule of law, and I am optimistic that the strength of our legal institutions will ultimately prevail over politics. But these are exceptional circumstances, and I cannot in good conscience do nothing. Baseless and politically motivated investigations wreak havoc on the lives, safety, and financial security of targeted individuals and their families. Even when individuals have done nothing wrong—and in fact have done the right thing—and will ultimately be exonerated, the mere fact of being investigated or prosecuted can irreparably damage reputations and finances.

There has been some pushback on the value of these pardons but I think it is an understandable attempt to do what he could. The people involved can still be investigated, called to testify (now with less Fifth Amendment immunity), and various methods used to go after them. 

But, criminal prosecutions are a serious matter.  

Linda Kerber in Federalists in Dissent noted:

The dream of establishing in the new world a republic whose ideals would be classical, grounded in civic virtue, trusting in the integrity of the public and in the capacity of men of good will and decency, was not mere rhetoric. Republicanism was a word loaded with meaning, and the care of the survival of the republic of virtue, the fear that it would succumb to the corruption to which all acknowledged it was vulnerable, was real.

A thought that came to mind today. 

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* One lawyer suggested to me that possibly a person could functionally reject a pardon if it is enforced by using it as a defense during a prosecution. 

I find this very questionable. A judge would have to accept the conviction. If they did so, they would effectively interfere with presidential pardon power. 

The pardon to me is self-executing and is a matter of law once the president acts unless it has strings (Biden could have required an admission of guilt!). Judges sometimes must on their own raise jurisdictional limits to their powers.

I do not know the specifics in all respects but in principle, something like this would apply here.