Despite much posturing by President Donald Trump and his supporters, it's increasingly likely that Joe Biden will be sworn in as the 46th president of the United States. In response, Republicans seem bent on petty vengeance in the form of non-cooperation with the new administration's transition team—an empty gesture that ruffles feathers while accomplishing nothing. But if the outgoing chief executive wants to leave office in a way that has a lasting impact (and yes, that will likely get under the new guy's skin) he can do so and benefit the country by using the presidential pardon power.
Article II, Section 2 of the United States Constitution specifies that the president "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." According to the U.S. Supreme Court, in Ex Parte Garland (1866), "with that exception the power is unlimited. It extends to every offence, and is intended to relieve the party who may have committed it or who may be charged with its commission, from all the punishments of every description that the law, at the time of the pardon, imposes."
The power can even be wielded preemptively, such as when President Gerald Ford pardoned his predecessor, Richard M. Nixon, for any crimes he may have committed.
Pardons, then, are powerful tools for offering relief to people who got on the wrong side of government officials. Such people include high-profile whistleblower Edward Snowden, who revealed U.S. government surveillance of its own population and the world beyond and was personally targeted by Joe Biden when he was vice president in the Obama administration.
"Every time one of these governments got close to opening their doors, the phone would ring in their foreign ministries and on the other end of the line would be a very senior American official," Edward Snowden told MSNBC in 2019 about the fate of his applications for asylum in multiple countries. "It was one of two people. Then-Secretary of State John Kerry or then-Vice President Joe Biden."
Snowden went on to paraphrase the resulting conversations: "But if you protect this man, if you let this guy out of Russia, there will be consequences. We're not going to say what they're going to be, but there will be a response."
In 2013, Ecuador's then-President Rafael Correa confirmed that Biden leaned on him to deny asylum to Snowden.
Another candidate for official mercy is Julian Assange, the digital journalist and WikiLeaks founder, who worked with Chelsea Manning to reveal bloody U.S. military missteps. He took refuge in Ecuador's London embassy while Sweden pursued sexual assault charges that were eventually dropped.
In 2016, WikiLeaks published embarrassing Democratic National Convention emails in a likely slap at the Obama administration that had targeted Assange.
There's been speculation that Biden might go easier on Assange, but that seems a stretch, given the emails and the then-veep's description of the journalist as "a high-tech terrorist." President Trump himself has never really taken to Assange, even though he arguably benefited from the DNC leak. But pardoning Assange would be a win for press freedom and a slap at the intelligence community with whom he has sparred.
Of course, if you're going to pardon Julian Assange, that calls for similar consideration for Manning, who did the heavy lifting in terms of sourcing military documents and diplomatic cables that were then published by WikiLeaks. She went to prison for her actions, and then was jailed again for refusing to testify about WikiLeaks.
Manning's sentence was commuted by then-President Obama at the end of his second term. But she still lives with a conviction and the resulting restrictions on her activities. While Trump has been harshly critical of Manning, this would be another opportunity to simultaneously do the right thing and needle the intelligence community.
While we're talking about whistleblowers, let's add Reality Winner to the mix. In 2017, she passed an NSA report about Russian attempts to fiddle with American voting software to The Intercept. Winner was arrested when the publication screwed up basic security precautions, revealing her identity.
Admittedly, this case is a tougher sell, since it happened on Trump's watch, and the soon-to-be-former president isn't known for his forgiving nature. It also involves a sore spot for him in the form of foreign election interference. But, even so, a pardon for Winner would be a sharp jab at the alphabet agencies.
On a different note is the case of Ross Ulbricht. He was convicted in 2015 of a variety of charges that all boil down to, in the guise of "the Dread Pirate Roberts," operating Silk Road, a darknet marketplace for the buying and selling of intoxicants disapproved by the powers-that-be. Two federal agents on his case were also convicted—of extortion and of stealing from Silk Road.
Ulbricht's case is near and dear to Reason writers because of the consensual nature of his "crimes," but also because the prosecutor in his case—Preet Bharara—later went after this publication and its readers. In 2017, Bharara picked a fight with the Trump administration and was fired from his position as a U.S. Attorney for his troubles. Pardoning Ulbricht might not yet be on Donald Trump's radar despite his supporters' best efforts, but it would be an impressive way to close this chapter while also doing the right thing by a guy who did no wrong.
But let's not rest all of our hope on the man who's leaving the White House. If Trump doesn't want to exercise his power of mercy on behalf of the people mentioned above—and so many other deserving victims of the carceral state—for whatever reason, perhaps his replacement might give it some thought.
Pardoning Snowden, Assange, Manning, Winner, Ulbricht, and many others who have run afoul of the criminal justice system would be an effective means for Joe Biden to rebrand a government that has gained a well-deserved reputation for brutality under officials of both major political parties. Given that he has a personal history with some of these individuals, it would also demonstrate a rare quality of forgiveness in an elected official.
Presidential pardons have been exercised over the years for a variety of reasons good, bad, and indifferent. If using that power now can bring about some justice and respect liberty, we shouldn't care too much about the motives.