Biden's Last-Minute Pardons

"I say to my friends on the other side of the aisle, you will regret this, and you may regret it a lot sooner than you think."

In 2013, Senator Harry Reid triggered the so-called "nuclear option," which eliminated the filibuster for lower court nominees. At the time, Senator Mitch McConnell stated, "I say to my friends on the other side of the aisle, you will regret this, and you may regret it a lot sooner than you think." McConnell was right. When Democrats filibustered Judge Gorsuch, Reid's decision paved the way for Republicans to eliminate the filibuster for Supreme Court nominees. Had Reid not nuked the filibuster, Roe v. Wade would still be good law. McConnell was right.

And McConnell's words are relevant the final day of the Biden presidency. Yesterday, Seth Barrett Tillman and I wrote, "Who knows what else the final few hours will bring?" Well, a lot. The President has issued a slew of pardons to people who have not been sentenced, who have not yet been convicted, who have not been indicted, who have not been charged, and who have not yet even been investigated!

Pardons were given to members of the January 6 committee (who otherwise have immunity under the Speech or Debate Clause), unnamed staff members, and unnamed police officers who testified before the committee. Another pardon was given to Mark Milley, for his service between January 1, 2014, and the present. And for good measure, Dr. Anthony Fauci was pardoned. Alas, others were left out. Alexander Vinman's wife feels betrayed her husband was not pardoned.

Moreover, Biden has issued pardons to his entire immediate family, following the pardon to his son. These pardons were announced about twenty minutes before noon, after Biden was already in the Rotunda. No public pardon has been announced for Jill Biden, and the President himself. Query if Biden signed a self-pardon, and one for his wife, which may become public later.

These precedents will be regretted very soon by Democrats.

Comments

[tylertusta]

I see some consternation from lawfare types today. Many remain so self-absorbed in the righteousness of their cause that they don't like the optics of receiving a pardon.

Given the grief they've caused the country over the past 8-9 years, it's a small consolation to see that they're tarred by a similar sort of brush that they used to wield against their political enemies.

[tylertusta]

Overall I think that these pardons are good for the country. Biden's biggest failure today was not pardoning Trump to try to reset the temperature in Washington. I am not fond of inflicting lawfare upon anyone because it encourages reprisals once the other side gets back into power.

I have one exception to my overall feelings on the pardons today: General Milley's pardon.

Regardless of what you think of Trump, Milley is, in my view, a mutineer who disrupted civilian control of our military. For those who are unaware, Milley allegedly inserted himself into the chain of command for nuclear weapons employment with the intention to deny the launch of nuclear weapons after January 6th.

The danger here is what if there was a legitimate use of our nuclear deterrent. We're fortunate that another nuclear power did not take advantage of the chaos in Washington after J6, 2021. Imagine would have have happened if Russia discovered that the US president was no longer in command of our nuclear deterrent. They may well have decided that this was a golden opportunity to turn the USA into ashes.

People of all stripes should never condone what Milley alleged did. In my view, he's a mutineer and deserved to be drummed out of the service in disgrace.

The bad optics of receiving a pardon is insufficient for the magnitude of what he allegedly did and risked our country for.

[David Nieporent]

I wonder how you feel about Schlesinger, who admitted that he issued an order in Nixon's final days that if Nixon ordered a nuclear strike, the military should not obey unless confirmed by either Schlesinger or Kissinger.

Also, your continued Tom Clancy fantasies not withstanding, the U.S. has a robust second strike capability. Russia was not going to nuke the U.S. just because there was an adult in the room with Trump.

(I'm also not sure what you think Milley did that constitutes "mutiny." He did not disobey an order.)

[tylertusta]

I was not familiar with Schlesinger, so I do not have thoughts on it. Perhaps you can point me to a source that writes about it?

Article 94 describes mutiny:

(a) Any person subject to this chapter who-

(1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;

Mark Milley allegedly suborned others in order to override the lawful commands of the commander in chief. That's textbook mutiny and conspiracy to commit mutiny.

Also, your continued Tom Clancy fantasies not withstanding

If you weren't poo-pooing the illegal actions of your anti-Trump heroes, then it wouldn't be you, David.

How far would you go to justify steps to stop Trump from being the President? Which other crimes would you forgive? We've already spoken about your forgiveness of mutiny, which when combined with nuclear weapons is about as big of a deal as it gets. How about actual, no-joke treason? Would you support that?

[Alpheus W Drinkwater]

By the text of the article you cited, it would seem that mutiny must involve refusing to obey an order, which Milley did not do. Is your argument that he created "a disturbance?" Seems a stretch.

The rest of your comment is merely strawmanning, since he said nothing in his comment about stopping Trump from being President.

[David Nieporent]

The rest of your comment is merely strawmanning, since he said nothing in his comment about stopping Trump from being President.

You are correct. But that having been said, if in fact Trump decided to unjustifiably start a nuclear WWIII on an irrational whim, I would be okay with military mutiny! I put legalities and norms ahead of most issues, but nuclear apocalypse isn't one of them.

[tylertusta]

And if it wasn't an irrational whim?

[Alpheus W Drinkwater]

A rational whim?

[tylertusta]

How about just being rational?

[tylertusta]

Mutiny is not just refusal to carry out orders once given. It can also be "refuses to ... otherwise do his duty."

Milley allegedly went into the actual chain of command and allegedly convinced the officers present to put Milley in that chain of command with the intention of denying nuclear launch authority to the President. That satisfies the prong of mutiny of "in concert with any other person" since it was those other persons who had the duty to carry out those orders. (1) of Article 94 makes suborning mutiny the same thing as mutiny.

The rest of your comment is merely strawmanning, since he said nothing in his comment about stopping Trump from being President.

David and I have spoken about this previously, so you're just stepping into our back-and-forth midway through. Suffice to say, I am attempting to find out the limits of David's perfidy.

...I have not found those limits yet.

[Alpheus W Drinkwater]

Still seems thin to me. I don't see how inserting himself into the chain of command qualifies as "refuses to...otherwise do his duty." But these things are always arguable, I guess.

[tylertusta]

Suborning others to mutiny is mutiny.

Nothing thin about it.

[Randal]

Contemplating disobeying an illegal order isn't mutiny.

Milley allegedly inserted himself into the chain of command for nuclear weapons employment...

He manifestly did not insert himself into the chain of command, since that would've required coordinating with his superiors i.e. Trump. He offered himself as a consultant as to the legality of any nuclear strike orders. I don't see how that can be construed as mutinous. We want our military to be mindful, yes?

[tylertusta]

Contemplating disobeying an illegal order isn't mutiny.

No one is suggesting that at all. What Milley allegedly did was to contemplate disobeying lawful orders, which is mutiny.

He manifestly did not insert himself into the chain of command

Incorrect buzzer noises.

When I said that General Milley "inserted himself" into the chain of command, I meant it literally.

Orders to launch nuclear weapons flow down from the President to the Secretary of Defense to USSTRATCOM. Nowhere in that chain is the Chairman of the Joint Chiefs of Staff.

General Milley allegedly met with officers in US Strategic Command (USSTRATCOM). He allegedly insisted that they go to him to verify any launch order before it can be executed. He also allegedly did this without orders.

Doing so without orders with the express intent of causing others to not perform their duties/refuse direct orders from superiors meets the very definition of mutiny.

He offered himself as a consultant as to the legality of any nuclear strike orders.

No, he wasn't. As recorded by Bob Woodward, General Milley said: "No matter what you are told, you do the procedure. You do the process. And I’m part of that procedure."

As I explained above, the Chairman of the Joint Chiefs is not someone who is part of nuclear launch procedure. By saying he was (when he was not), he inserted himself into the chain of command to ostensibly give himself veto authority over nuclear launch decisions.

[David Nieporent]

No one is suggesting that at all. What Milley allegedly did was to contemplate disobeying lawful orders, which is mutiny.

I am pretty sure that nothing in the UCMJ or Title 18 is so broad as to encompass "contemplating" anything.

[tylertusta]

And that's the best response you can make here?

Classic David.

[tylertusta]

Reports are that General Milley's portrait as Chairman of the Joint Chiefs of Staff has been taken down from the Pentagon.

I appreciate the symbolism.

https://x.com/sentdefender/status/1881430244479115333

[AtR]

Milley can still be demoted to private and dishonorably discharged.

[tylertusta]

How? To demote someone and discharge them dishonorably, you need to put them through a court martial and convict them.

He was pardoned for substantial alleged criminal conduct that we care about, plus any conduct he may have had surrounding his mutiny, such as Article 133 (Conduct unbecoming of an officer) or Article 134 (General article).

[Social Justice is neither]

Sorry but the pardons of the Biden crime syndicate and the treasonous scum on the J6 committee are nothing but Democrats spitting on the rule of law once again and nothing good can come of it.

[TextFirst]

I'm sure we'll find out a lot more about the Biden crime regency now that they're formally out of power and especially in a few years as the backstabbing and jockeying for new rackets begins. In its final days, it chose to position the Democrat party as the party that represents the interests of predators, grifters, and cop killers. It's astonishing how much damage it did it such a short period of time. God knows Trump has his foibles, but anybody sane should take mean tweets over this.

[tylertusta]

I'm sure we'll find out a lot more about the Biden crime regency...

We will, but only if politically convenient for Democrats. If embarrassing, expect any new revelations to be categorized as a "right wing conspiracy theory" by the trickle-truthing media class.

...in a few years as the backstabbing and jockeying for new rackets begins

I doubt that will happen. Biden is leaving the White House in disgrace and without influence.

[Commenter_XY]

Biden was corrupt AF. The pardons show it. Little wonder he leaves in disgrace.

[Jason Cavanaugh]

I eagerly await your silence about Trump again pardoning the criminals we actually know he conspired with as opposed to your evidence-free bullshit about Biden's alleged corruption.

You're a partisan, craven, vengeful cuck who deserves exactly what is on the horizon.

[VinniUSMC]

actually know he conspired with

Insanity, thy name is Jason. Enjoy the next 4 years.

You're a partisan, craven, vengeful cuck who deserves exactly what is on the horizon.

You're saying that to yourself in a mirror, right? Moron.

[RedheadedPharoh]

And what do you think is on the horizon?

[Commenter_XY]

I am quaking in my shoes contemplating his horizon. LMFAO.

[SimonP]

Hey, you can go fuck yourself.

You can't spend your free time gloating over the anticipated ass-raping of Democrats by the Trump administration, celebrating the opportunity to pursue politically-motivated prosecutions against your perceived political enemies, and then cry about it when Biden takes reasonable action to prevent exactly what it is you want to happen to him and his allies.

All you want, all you ever wanted, is to cause suffering. You don't give a shit about "corruption." It's just all lies, every day, different lies to suit whatever argument you're trying to win at the moment.

So you can eat all shit. I'm looking forward to these leopards eating your face, especially.

[Scooter]

Gee.....whatever happened to all the JOY!!!!!!!! from Camp Harris??????

LMFAO.

[jimc5499]

You're pissed off that Trump may play by the same rules as the Democrats have been for at least the last four years. Aw poor baby.

[Scooter]

It'd (D)ifferent when Simple Simon does it.

[Noscitur a sociis]

If, as is apparently the case, you think that the Democrats did something wrong, it would be very reasonable to be unhappy if Trump were to do the same thing, because (and I really feel like I shouldn’t have to explain this) it’s bad when the president does things that are wrong.

I must therefore once again implore you, jimc5499, to stop helping.

[Commenter_XY]

Take some more Midol for your brain cramp, SimonP.

[Martinned2]

https://www.amazon.com/exec/obidos/ASIN/B07DDR7VX6/reasonmagazinea-20/

[VinniUSMC]

Go kill yourself, fucking piece of shit Nazi scum.

[y81]

I don't take martinned2's point. Obviously, nobody did lock Hillary up or even try. No pardon was necessary. (In contrast, the Attorney General campaigned for office on an explicit vow to go after Trump and did so.)

[Martinned2]

https://www.nytimes.com/2023/05/22/us/politics/fbi-clinton-foundation.html

[Martinned2]

https://www.youtube.com/watch?v=DhfgYe1r-qs

[VinniUSMC]

Nazi, Nazi man. Go drink some draino, Nazi man.

[Longtobefree]

There must be a determination of "pardons" for other than convictions of a specific crime.
What happens when Trump issues pardons for "all acts that have been or may be committed for the lifetime of all members of the following organizations" and then lists all the groups the democrats hate?
What then?
Can anyone say that would be more, or less, legal than Joe's blanket get out of jail free cards?

[TextFirst]

I mean, why stop there. Some republicans don't like the income tax. If republicans utilized the presidency like democrats did, they could simply refuse to enforce it and/or settle all tax liabilities for $1. I think it would break the country if republicans were as lawless as the democrats, but the alternative right now is "heads, predators win, tails people lose" as democrats loot the nation.

[Stupid Government Tricks]

As far as I know, all Biden's blanket pardons are only for past crimes, not future crimes. I doubt the Supreme Court will want to rule on these blanket pardons not being valid for not listing specific crimes, but they probably would for pardoning future crimes.

[Longtobefree]

JOSEPH R. BIDEN, JR. President of the United States of America
TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETING: BE IT KNOWN, THAT THIS DAY, I, JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES, PURSUANT TO MY POWERS UNDER ARTICLE II, SECTION 2, CLAUSE 1, OF THE CONSTITUTION, HAVE GRANTED UNTO
JAMES B. BIDEN
SARA JONES BIDEN
VALERIE BIDEN OWENS
JOHN T. OWENS
FRANCIS W. BIDEN
A FULL AND UNCONDITIONAL PARDON

You see any dates in there?
Behold the ultimate carte blanche.

[David Nieporent]

You see any dates in there?

In what you wrote? No. In the actual pardon document? Yes.

[Stupid Government Tricks]

Well, nuts. Didn't know that. I still find it hard to believe even NYC courts would accept that or that it wouldn't be appealed and lose.

[Noscitur a sociis]

I mean, the only way there “must” be a determination is if one of the recipients gets prosecuted for a crime ostensibly covered by the pardon, which doesn’t strike me as especially likely.

[Voize of Reazon]

I suspect Pam Bondi is relieved she won't be expected to follow through with a lot of groundless prosecutions.

[not guilty]

There must be a determination of "pardons" for other than convictions of a specific crime.
What happens when Trump issues pardons for "all acts that have been or may be committed for the lifetime of all members of the following organizations" and then lists all the groups the democrats hate?
What then?
Can anyone say that would be more, or less, legal than Joe's blanket get out of jail free cards?

There is no authority for any pardon to operate prospectively. Whatever the pardon power may be, it is not Janus-faced. And your hypothetical pardon is not limited to federal offenses, so it exceeds federal authority in that respect.

[Martinned2]

https://www.aclu.org/news/civil-liberties/where-fbi-director-nominee-kash-patel-stands-on-civil-liberties

[VinniUSMC]

Hey Nazi boy, go jump off of a cliff onto a very long sharp pole.

[Randal]

Speaking of Nazi boys...

https://www.theguardian.com/technology/2025/jan/20/trump-elon-musk-salute

[Riva]

I wonder if the Big Guy pardoned himself?

[Ken Shultz]

I guess Joe didn't make Fauci pay Hunter for the pardon because if Joe had, he would have pardoned himself.

Either that or maybe he just forgot. He's not the Joe he used to be.

[tylertusta]

He might have pardoned himself but didn't make it public.

The only way to find out is if it gets leaked, or if he presents the pardon in a court of law.

[Commenter_XY]

Is it even possible to issue a secret self pardon?

[Brett Bellmore]

I don't see how he'd prove that it was issued while he was still President.

[tylertusta]

He would need some way to verify the authenticity and timing of the pardon.

He could have had witnesses who are sworn to secrecy but could later testify that the pardon was properly issued. I'm sure there are technical methods to achieve the same.

[Brett Bellmore]

If the Supreme court was at all inclined to frown at a self-pardon, a self-pardon without absolute proof of timing would just give them an excuse to rule against it without settling the issue.

[MikeFr]

Video of him signing it emailed to his gmail account.

[TwelveInchPianist]

For all those that doubted that Fauci was a criminal, I guess this proves it.

[Ken Shultz]

What's worse, if Fauci was a criminal or if everything he did was perfectly legal?

[MollyGodiva]

What do you think he did that was criminal? Be specific.

[LKB]

Lying under oath to Congress for starters.

[Randal]

Not specific enough.

[Brett Bellmore]

Conspired to violate the federal law prohibiting gain of function research.

[Randal]

Oh, is that a criminal statute? Researching gain-of-function in the second degree?

[MollyGodiva]

Uh no. Being given a pardon does not imply anything.

[LKB]

Not according to the Supreme Court:

"Granting, then, that the pardon was legally issued and was sufficient for immunity, it was Burdick's right to refuse it, as we have seen, and it therefore not becoming effective, his right under the Constitution to decline to testify remained to be asserted, and the reasons for his action were personal. . . . .
This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession."

Burdick v. United States, 236 U.S. 79, 94 (1915)

[JoeFromtheBronx]

Yes, that case notes there is some imputation of guilt.

The breadth of that principle, including how sound the opinion of that very case is, is open to question. See, e.g., Biddle v. Perovich (1927).

For instance, a person can be given a pardon after a travesty of justice that normal legal proceedings were unable to address. A pardon in that case need not be "an acceptance of guilt."

[Longtobefree]

Minor technically; that pardon doesn't cover state crimes (conspiracy to commit many things comes to mind), or crimes against humanity in the world court.

[Martinned2]

https://www.nbcnews.com/politics/politics-news/pam-bondi-attorney-general-justice-department-rcna181493

[VinniUSMC]

Fuck off Nazi scum.

[Martinned2]

I'm going to stop posting links now, I think I've made my point. The US is a banana republic, and it would be irresponsible for anyone to act like it isn't.

[Stupid Government Tricks]

Oh, go ahead, distract from all the self-dealing corrupt pardons with strawmen. You're not good for much else.

[Bob from Ohio]

"US is a banana republic"

You remain a jealous idiot.

[MollyGodiva]

A banana republic is where an outside company runs the government for its own profits. The US is not that. Corrupt, yes, run by unaccountable oligarchs, yes, a failed democracy, yes, banana republic, no.

[Scooter]

We were never a "democracy ".

Go back to school.

LMFAO

[Martinned2]

That's one definition of a banana republic, and one that may well prove apt. Would you accept a country run by *several* companies is a banana republic too?

[RedheadedPharoh]

You posted a bunch of links, you didn't make any point.

[VinniUSMC]

Nobody cares what you think non-American, Nazi piece of shit.

[Rossami]

I have no idea what point you think you were making but it's pretty clear you failed.

And, yes, the US is far from perfect. We're nevertheless considerably better than any of the current alternatives.

[Absaroka]

"These precedents will be regretted very soon by Democrats."

I hope that doesn't prove to be true. I think Biden deserves condemnation for these. I think similar actions in the future will also deserve condemnation. I hope this practice becomes an obscure historical footnote.

[Stupid Government Tricks]

Oh, grasshopper! Your naivete is so appealing!

[John F. Carr]

Democrats won't have reason to regret the pardons until Trump is out of office and they want to go after his people.

In my state pardons and judicial nominations need to go through an obscure elected committee that is left over from colonial times. The governor can not act on her own. When we rewrite the constitution we can require ratification of a pardon of a subordinate or family member by the President.

[MollyGodiva]

Given that Trump has promised to go after people based on revenge and not any actual wrongdoing, these pardons were proper. Let's not forget that Trump gave a pardon to a war criminal.

[RedheadedPharoh]

"Given that Trump has promised to go after people based on revenge and not any actual wrongdoing, "

That's a lie.

[Scooter]

Typical for that poster.

SSDD

[Randal]

Trump named a slew of specific people he planned to go after, without evidence of wrongdoing. In other words, fishing expeditions.

As we know with Hunter Biden, fishing expeditions often end up digging up something that can be charged, even if it wouldn't normally be, given the vast selection of broad federal criminal laws. I mean, isn't this essentially the Republican excuse for Trump's felony conviction?

So in that sense, Molly is right. Trump's enemies list is based on revenge, not wrongdoing, and he's going after them on that basis. Sure, he's doing it by fishing for wrongdoing, but we should be able to agree that fishing for crimes by one's political enemies is an abuse of power.

[Don Nico]

"run by unaccountable oligarchs"
as it has been since the robber barons of the late 19th and early 20th centuries.

[Bob from Ohio]

""run by unaccountable oligarchs as it has been since"

the founding

Southern planters and Northern mercahnts

[Stupid Government Tricks]

The corollary is that you think the US judicial system is so corrupted by now that such personal vendettas would be successful, thus justifying pre-emptive pardons for unspecified actions.

I wonder what has happened in the last four years to make you think that? You didn't think that way when Biden was inaugurated, so it must be something in the last four years. What could that be ...

[Armchair]

"Given that Trump has promised to go after people based on revenge and not any actual wrongdoing, these pardons were proper."

And? Let's say you're right.

There's a court system. There's a legal system. Systems that are well outside executive power, with clear lines of how a prosecution and case are supposed to go. If these people are innocent...then they go free. Because that's how our legal system works. Trump can't just throw them in prison. He can't even bring a case without probable cause.

What do these pardons say? Either...

1. We know the system can be abused. We know that "unique" charges can be brought on limited evidence that wouldn't normally be brought...because we've been doing it for the last 4 years in a campaign of lawfare. And damned if we're going to be subjected to the same abuse we subjected Trump and anyone associated with him to.

2. We're guilty as crap. We've been using the office of President and Vice President to get ourselves paid off real good and protect ourselves illegally. We should go to prison. But the pardon means...haha, we don't.

[Randal]

Let's assume you're right and Trump's prosecutions were horrible abuses of power by... someone.

Well, Trump has promised more of the same, which would of course have prompted even more viscious retribution by the next Democratic administration, and on and on. Maybe these pardons will divert us from that downward spiral.

[LKB]

Buried in the avalanche of pardons is that Biden also commuted the life sentence of Leonard Peltier (convicted of murdering two FBI agents in 1975).

But with all the pardons, don't forget that the Supreme Court has twice (Wilson v. US; Burdick v. US) held that pardons *can* be refused, and that acceptance of the pardon constitutes admission of guilt.

[Brett Bellmore]

I assume that, if you're in prison, "refusing" a pardon just converts it to a commutation? Because I can't see how they'd have any authority to hold you in prison after you were pardoned, regardless of whether or not you'd accepted it.

[LKB]

No. Refusing a pardon means just that, you refused it and so are stuck with the consequences. See Burdick v. United States.

A commutation doesn't erase guilt, it just lessens the penalty. See, e.g., all the felons Biden just released under his mass commutation.

[Social Justice is neither]

How would refusing a pardon be different from refusing a plea deal other than timing? I could see rejecting either if they come with an admission or guilt to any degree. Now, if you're convicted already and multiple appeals denied then don't understand why you wouldn't accept but that's a bit different.

[Noscitur a sociis]

But with all the pardons, don't forget that the Supreme Court has twice (Wilson v. US; Burdick v. US) held that pardons *can* be refused,

What would refusing the pardon even mean right now?

and that acceptance of the pardon constitutes admission of guilt.

That’s not what Burdick says. It says that accepting the pardon could be viewed that way.

[LKB]

Here's what Burdick says:

“This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession.”

Burdick v. United States, 236 U.S. 79, 94 (1915). I don't see a "could be viewed" in the third, declarative sentence.

[Noscitur a sociis]

You are correct that it doesn’t use those words,, which is why I didn’t put them in quotation marks. A lot of people have inexplicable difficulty understanding that passage, even though it doesn’t see, particularly obscure to me, so I paraphrased it to try to make it more comprehensible for you.

It appears I may not have succeeded.

[Scooter]

If Biden felt he should be released, why did he let him rot in prison for 4 years?

What a sad, pathetic fucking loser.

[David Nieporent]

Um, maybe he felt he should be released now, but not four years ago.

[Alpheus W Drinkwater]

Purportedly Bill Clinton strongly considered commuting Peltier's sentence in 2001, and was talked out of it by Louis Freeh. It's a fascinating case, and has generated tons of media, and a lot of music as well.

[Scooter]

Why? Did it take Peltier that long to come w/ "10% for the Big Guy"?

LMFAO

[Noscitur a sociis]

On the one hand, obviously that’s theoretically possible. On the other hand, come on.

[Noscitur a sociis]

Buried in the avalanche of pardons is that Biden also commuted the life sentence of Leonard Peltier (convicted of murdering two FBI agents in 1975).

More specifically, Biden directed that he spend the rest of his sentence on home confinement. Which raises a possible legal question:

Generally, home confinement isn’t an actual sentencing option: it’s a discretionary placement decision by the Bureau of Prisons. Biden thus had authority to direct Peltier’s release to home confinement, just as he could, had he been so inclined, directed him to be housed in a different prison. But can he make his placement decision irrevocable just be labeling it a “commmutation”? I doubt Trump will try, but the answer isn’t obvious to me. (It’s made more difficult by the fact that Peltier was sentenced before the Sentencing Reform Act: I don’t know enough about pre-1986 sentencing to have a good sense of how that might have affected things, nor do I find the question interesting enough to research it.)

[Bob from Ohio]

Hey sarcasto, any comment about norms here? Not an "abuse of thread" I think.

[RedheadedPharoh]

He only concern-trolls about "m'uh norms" when the other side isn't behaving to his liking.

[Commenter_XY]

He is busy changing into black clothes, to mourne.

[Alpheus W Drinkwater]

I am not he, but these pardons are an abomination. I honestly didn't think my opinion of Biden could sink any lower, but I was wrong.

Does the power to grant a pardon really confer on the President the power to grant immunity from any federal prosecution to someone who hasn't been charged or convicted of any crime? That sounds like something other than a "pardon," to me.

[JoeFromtheBronx]

Yes. President Ford constitutionally pardoned Nixon, who was not "charged or convicted of any crime."

More here:

https://verdict.justia.com/2025/01/20/bidens-preemptive-pardons-are-an-unprecedented-vote-of-no-confidence-in-the-new-administration

[Alpheus W Drinkwater]

Thanks for the link. The cited exchange between Luther Martin and James Wilson at the constitutional convention seems particularly relevant.

[Noscitur a sociis]

In fact, as the Burdick case mentioned above illustrates, that was a fairly routine use of the pardon power before the implementation of modern immunity statutes.

[vaadu]

Pardons don't prohibit investigations. Being pardoned stops Fauci and Bidens from invoking the 5th if questioned?

Does a pardon prohibit the government from using civil asset forfeiture of ill gotten gains?

[JoeFromtheBronx]

Yes, a pardon can lead to people being required to testify if they are no longer in jeopardy of criminal prosecution. Pardons leave open other non-criminal tools. Pardons do not stop investigations.

[RedheadedPharoh]

Get them before Congress. They will lie under oath, then they can get thrown into the slammer for perjury.

[Social Justice is neither]

Just like Hillary, Podesta, Holder and a host of other Democrats that lied shamelessly under oath?

[tylertusta]

They cannot invoke the 5th to protect themselves from federal criminal prosecution for the pardoned crimes because they are no longer under threat of prosecution.

However, they can invoke the 5th for protection against state crimes.

[Stupid Government Tricks]

As I recall, when this came up for Hunter's pardon, the consensus was that the 5th can still be taken in federal court or before Congress on the grounds that the self-incriminating evidence could still be used for state prosecutions.

[Michael P]

Most of the offenses by non-Bidens would be purely federal, because they're offenses of misgovernment at the federal level.

[tylertusta]

No, that isn't why it would matter.

If Hunter Biden lied on his federal returns, then he probably lied on his state returns as well.

[Stupid Government Tricks]

Interesting question! My karma take is that since the excuse is that the property's legality is being questioned, the former owner's pardon has no effect.

[snarling_dog]

We are finally unBidened by what has been. FJB.

[Currentsitguy]

I'm curious if a pardon relieves someone of civil liability. For example could someone still file a wrongful death suit against Anthony Fauci?

[Stupid Government Tricks]

Maybe in state court. It's only a federal pardon.

[Bob from Ohio]

A pardon has no effect on a civil case by a private individual.

[Currentsitguy]

Thanks. That's what I thought, but I wasn't sure.

[No One Of Consequence]

The pardon doesn't affect a civil suit, but federal employees generally have immunity from civil liability for acts within the scope of their office or employment. To the extent a wrongful death suit could be pursued at all, it would have to be against the government under the Federal Tort Claims Act. Any judgment would be paid by the taxpayers. Fauchi's in the clear.

See: https://www.justice.gov/archives/jm/civil-resource-manual-33-immunity-government-officers-sued-individuals

[not guilty]

"I'm curious if a pardon relieves someone of civil liability. For example could someone still file a wrongful death suit against Anthony Fauci?"

The pardon does not affect civil liability or the absence thereof. Good luck proving proximate cause in your hypothetical wrongful death suit, though. In all likelihood the United States would be substituted as a defendant under the Westfall Act.

[Hugh]

I'm happy to see that the Democrats have finally decided to bring a knife to a constitutional knife fight. I'm just sad Biden didn't die the Archivist and appointed a new one to declare the ERA is part of the Constitution.

It's also fun to see Professor Blackman clutching his pearls

[Bob from Ohio]

A pen knife. Trump will bring a Bowie knife.

[Longtobefree]

Trump would have radio communication with the F-16.

[Hugh]

As for "regrets," does anyone really think, after all we have seen, that Trump is restrained in any way by the norms of decency?

[Stupid Government Tricks]

You mean like showering with his own daughter?

[tylertusta]

We had to destroy the norms in order to save them.

Sincerely, Your Democratic Party

[Kleppe]

Well, he didn't pardon his own family on his way out the door four years ago, so...

[Swede425]

Since the genie is out of the bottle, Trump should just preemptively pardon his family, his cabinet, and anybody else he feels like pardoning right now.
Set the date from 20 years ago to 20 years from now.
Let's really give this thing a ride and see where it can go!

[Commenter_XY]

The pardoned can be subpoenaed to testify under oath. If they lie (of course they will) under oath, then they're toast; perjury, obstruction, whatever. If I were one of the pardoned not named Biden, I'd be looking for counsel next week. It won't be long.

I agree with a number of people on this topic: Sunlight is the best disinfectant.

[Armchair]

This is just garbage level corruption by Biden and comrades. Absolute garbage...

Trust in the legal system? Trust in America? Absolute garbage. Everything they accused Trump of, every scared up fear or threat....it's all projection.

Absolute garbage with this mass pardoning for unspecified crimes.

[SimonP]

Since no one is under any real illusion about what Trump is likely to do with his newfound presidential immunity, and has never been particularly careful about the pardons he's issued, I have no idea why Democrats ought to "regret" any "precedent" they could be said to have set here. The only possible regret would have arisen had they not taken these actions, and spent the next few years mired in expensive criminal prosecutions brought by a bunch of nutters in the DOJ.

But hey, you know? If Republicans really care about it, maybe they could impeach him after the fact.

[JoeFromtheBronx]

Surely though many Republican senators would not convict Biden since they already said they could not convict Trump once he left office.

[Michael P]

Impeach Joe Biden? To coin a phrase, what difference at this point does it make?

[The Margrave of Azilia]

I certainly won't defend the pardons, but I'll defend their constitutionality and reject the "pardoned people are guilty" retardation.

There isn't much precedent here except Ford's broad pardon of Nixon, but there *is* the text of the Constitution, where the only limit on the pardon power is that it can't be granted in impeachment cases. No requirement that the pardon directly or indirectly list the crimes for which the person is pardoned. No limitation on the the number of crimes which can be pardoned at one time.

And the idea that the Pres can't pardon innocent people - preemptively or otherwise - that would lead to the absurd result that only guilty people, or innocent people willing to make false confessions, can be pardoned. There are examples of pardons based on innocence, or doubt of guilt, both by Presidents and by governors. It would be absurd if protecting the innocent were considered an *abuse* of the pardon power rather than a wonderful rationale for that power.

Of course, I'm hardly saying that the people Biden pardoned are all innocent. But if they were it would be OK to pardon them.

With that out of the way, of course I think our former President greatly abused his power.

[F.D. Wolf]

The pardon power as known understood by the drafters of the Constitution, I imagine you would concede, would be, at most, analogous and coextensive with that possessed by the King of Great Britain. I suspect that few, if any, would argue that the Drafters meant to give the President MORE pardon power than the King had. The King, for centuries at the time of the Founding, did not have a general pardon power. To the contrary, the pardon was expected to have some particularities so the King would not inadvertently pardon an offense of which he was not aware.

Stetler's Case, 22 Fed. Cas. 1314 (C.C.E.D. Pa. 1852) (No. 13,380) involved a pardon from President Filmore.

Millard Fillmore, President of the United States of America, to all whom these presents shall come, greeting: Whereas, it appears that at the June term, 1850, of the United States district court for the Eastern district of Pennsylvania, Lewis George was convicted of counterfeiting the silver coin of the United States, and sentenced to be imprisoned for the term of one year; and whereas, it has been made satisfactorily to appear to me that the said George is a fit subject for the exercise of the executive clemency: Now, therefore, be it known that I, Millard Fill more, president of the United States of North America, in consideration of the premises, divers other good and sufficient reasons me therefore moving, have granted, and do hereby grant, unto him, the said Lewis George, a full and unconditional pardon, to take effect from and after the first day of July next. [Seal.] In witness, etc. Done at Washington, this fourth day of June, A. D. 1851, etc.

One of the contentions in the case was that, while the particular crime was stated in the preamble of the pardon, it was not restated in the body, and was thus an illegitimate general pardon, unknown in English or American law for a great many centuries. To this, the court said:

The second point of exception involves in its terms the question of a general pardon, the power to grant such a pardon, and its effect, if granted, on the legal competency of the convict. This power is one which can hardly be regarded as established in England, notwithstanding the numerous dicta in the ancient books (see the remarks of Sargeant Hawkins on the several cases, P. C. bk. 2, c. 37, § 9); and which, in our country, might admit of a less embarrassed dissention under the terms of the federal constitution. It is certain that such pardons have not been granted by the crown for some centuries past, and I am not aware that they have ever been known in the United States. But, at any rate, no question regarding them can arise upon the facts before the court. The pardon here is full and unconditional, but not general. Whatever may be the effect of the preamble reciting as it does a single offence, it must be held to limit, in some degree the general words of the grant.

at 1315

Make of that what you will, and I certainly don't present it as a definitive answer, as on questions of law I do not pretend the metaphysical certitude some here do, but I certainly think there is much authority to suggest that blanket "any offense" pardons are not valid, as well as, of course, possible contradictory authority.

[The Margrave of Azilia]

Sure, I could always be wrong. But I'm inclined to think that the remedy for an improper pardon is impeaching the President who granted the pardon, not undoing the pardon itself.

The problem of course is that the President is now out of office and impeachment has never worked for ex-officials and maybe shoudn't work.

[not guilty]

I am not thrilled with President Biden's eleventh hour pardons. The pardons of relatives are less justifiable than those issued to members of Congress, Congressional staff members and law enforcement personnel regarding the siege of the Capitol. The latter category includes folks as to whom Donald Trump and his lackeys had rattled sabers about prosecuting with no justification.

That having been said, I find these pardons less troubling than George H. W. Bush's pardons of Caspar Weinberger and other Iran-Contra defendants. Those were self-serving and likely were intended to cover up Bush's actions while serving as Vice-president in the Reagan White House.

[The Margrave of Azilia]

I suppose I'll have to reconsider my fervent support of George H. W. Bush. /sarc

[The Margrave of Azilia]

Just spitballing here, but if the question is how to protect people from being prosecuted for stuff they didn't do - there's should be ways to work for that goal without granting mass pardons. For instance, make prosecutors pay compensation, personally, to acquitted people. Let an acquittal prompt an automatic investigation of the prosecutor.

Encourage grand juries to make a more careful review of cases, rather than taking the ham sandwich approach. And if the grand jurors suspect the prosecutor hasn't been playing straight with them, the grand jury should be able to demand the appointment of a special prosecutor to investigate the first prosecutor. And so all the way down.

etc.

If we take Biden at his word that his way is the only way to protect the innocent, then he's admitting that the federal criminal justice system is rigged against innocent suspects who may happen to attract the unsympathetic attention of the government. Attorney General Robert Jackson admitted this:

"If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm-in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself."

Being a prosecutor himself, Jackson relied on the goodness of prosecutors to avoid this problem. But the Founders insisted on more than this, they insisted on basic rights to protect the innocent, not a pious hope that the government officials might be in a good mood.

[The Margrave of Azilia]

Jackson speech -

https://www.roberthjackson.org/speech-and-writing/the-federal-prosecutor/

[Noscitur a sociis]

A 100% conviction rate is generally viewed as a sign that there’s a problem, not an indicator that everything is going swimmingly.

[The Margrave of Azilia]

I'm trying to figure out if I seemed to be suggesting this was my aspiration...

[Noscitur a sociis]

I don’t know how to parse this:

For instance, make prosecutors pay compensation, personally, to acquitted people. Let an acquittal prompt an automatic investigation of the prosecutor.

any other way than that you believe an acquittal is at least prima facie evidence of misconduct by the prosecutor, which would in turn suggest that in a world where prosecutors never engaged in misconduct, you would expect them to never lose a case.

If you meant something else, I’d certainly be interested to hear more details.

[The Margrave of Azilia]

It would be the criminal equivalent of loser pays. Why *should* an acquitted person pay for his own legal expenses?

Maybe a jury which hands down an acquittal could, if it wanted to, simultaneously order an investigation of the prosecutor. So an investigation wouldn't be automatic.

But compensating acquitted people *should* be automatic. Maybe compensation out of tax money so the prosecutor won't have a *personal* incentive to seek conviction at all costs.

[Noscitur a sociis]

It would be the criminal equivalent of loser pays.

No it wouldn’t. In a loser pays system, the party that brought the case needs to pay attorneys fees. You specifically said that the lawyer for the prosecution should be personally liable for the costs.

That said, you’re clearly pretty smart and you can it does appear that you have spent a lot of time thinking about this stuff. If you have an actual system in mind for how this should work, or even just a sense of what the conviction rate should be in your ideal society and why, I’d love to read it.

[The Margrave of Azilia]

Thank you for the flattery, but I'm afraid I don't have a detailed proposal beyond what I admitted to be "spitballing."

Having the prosecutor pay acquitted defendants personally was a bad idea for me to put forward, because that threat would probably make prosecutors more likely to cut corners for convictions. So as you may have noticed I changed that to making the taxpayer fork over the compensation.

[Noscitur a sociis]

Fair enough on that last point. I would note that the government already pays the costs for the vast majority of criminal defendants, so I’m not sure that shifting things for the few people who actually can afford to underwrite their defense would change the way things operate very much.

I would repeat my question and be interested in your response: in a system functioning optimally, what kind of conviction rate would you expect to see?

[The Margrave of Azilia]

Answer: I'm not really sure, now that you mention it.

[David Nieporent]

Note that the government pays the legal costs for the vast majority of criminal defendants. (And 'loser pays' in general only applies to legal fees and expenses.) But the costs of being prosecuted are often far beyond those of just legal fees - loss of income is an obvious one, along with the concomitant costs such as loss of assets.

[Absaroka]

Just FWIW, an acquittal is phrased as 'not guilty', but that may not accurately describe what the jury thinks. In my stint as a juror we acquitted one of the defendants where juror opinions on the likelihood of his guilt were around 90%. We just didn't think 90% rose to 'beyond a reasonable doubt'.

In the unintended consequences department, if I was defendant where the jury was wrestling with whether the evidence was a little under or over their conviction, I don't think I'd want them thinking along the lines of 'he's probably almost but not quite above the BARD line, so we think he's a real sleaze, and if we acquit he not only gets off for this crime he very likely did, but gets a payday as well'.

That said, I think it might be interesting to have jury options be:
Guilty
Not Proven
Innocent
Innocent, and admonish the prosecutor
Innocent, and pay damages
maybe Guilty, and admonish the prosecutor as well 🙂

[The Margrave of Azilia]

Who knows - that might be a better idea (though I think it would need a constitutional amendment).

But loser pays is only a "payday" in the sense that it tries to reimburse the winner for the expenses of defending the case, not to give him walking-around money.

[Absaroka]

"But loser pays is only a "payday" in the sense that it tries to reimburse the winner for the expenses of defending the case, not to give him walking-around money."

Probably? Possibly? Does he get lost wages for sitting in jail? Especially since I think??? quite a few crooks have public defenders. I know ours did.

Still, though, if you're a juror thinking 'I think this guy is highly likely to be a horrible crook, juuuuust shy of BARD' it might tip you over the edge, even if unconsciously. Or not ... don't claim to be a psychologist.

[The Margrave of Azilia]

Well, you were on the jury and saw the evidence, so you'd know if your defendant was a crook. You sounded conscientious enough that you, at least, probably wouldn't want to stick an acquitted defendant with the bill for his own prosecution. And as for a juror less conscientious than yourself, who knows, maybe such a juror wouldn't lose sleep over who pays.

[David Nieporent]

Just FWIW, an acquittal is phrased as 'not guilty', but that may not accurately describe what the jury thinks.

Uh oh, the ghost of Arlen Specter has entered the building.

[DaveM]

I am going to judge people by how they react to these blanket, preemptive pardons of the Biden family. This is a shibboleth, a crossing of the Rubicon. We have to be able to agree on the obvious things staring us right in the face, like this corrupt act. If we can't do even that, what hope do we have of enjoying a reasonable conversation together? This isn't about red vs. blue. This is foundational.

I am utterly disinterested in the Realpolitik aspects of this act, or any hand-wringing excuses about what a Trump administration "might" do.

What we have in front of us is a clear corruption of the pardon powers, to the direct benefit of Biden's own family. He might as well have been caught stealing the silver from the White House.

[Randal]

I'd've rather he'd not've done these preemptive ones, both because they're unseemly and because I think it would've been better to force Trump to try and fail to prosecute them.

But I don't see how they're automatically corrupt.

[Kleppe]

Try them anyway. These "preemptive pardons" need to be tested in the courts. And even if they're legitimate and legal, nothing about a pardon precludes an investigation and trial; only punishment.

[Randal]

Generally courts don't allow prosecutions to continue if there are no remedial prospects. It's called mootness.

[David Nieporent]

nothing about a pardon precludes an investigation and trial; only punishment.

Defendant: "Motion to dismiss the indictment on the ground I've already received a pardon for this."
Prosecution: "Objection, Your Honor. We want to take up a year or more on your docket, empanel a jury, hold the whole trial, and if the jury finds him guilty, well, then, you can't punish him for it."
Judge: "AYFKM?"

[Kleppe]

One thing I will give to the Democrats is they know how to wield power. I hope Trump 47 not only learns from the mistakes of Trump 45 but also from the example of how Democrats operate while in office.

[Randal]

These precedents will be regretted very soon by Democrats.

As if. We learned long ago that Republicans don't feel constrained by norms and precedents. McConnell would've ended Supreme Court filibusters anyway. Trump's going to pardon pretty much anyone who bends the knee anyway. Sure, they'll find a way to blame Democrats. They also would've done that anyway.

[mulched]

Randal so close to seeing that it's his team consistently busting down norms. Still tries to push the blame off.

"The Republicans would have done it first, if we ever let them."

[Randal]

As I mentioned above, I'm no fan of the pardons... but not for this dumb reason. Will you criticize Trump's inevitable pardons, or will you justify them to yourself as some sort of unfortunate necessity? My money's on the latter.

[mulched]

Yeah, yeah. The other side's potential transgressions are always justification for your own side's real ones.

[Randal]

Your reading isn't so good is it. Nice self-own.