The Long Victory
Joe Biden, the pardon power, and the crumbling of democracy
I often have a hard time reconciling my own personal dislike of hypocrisy, with the way the voting public at large seems to shrug off hypocrisy, especially is the hypocrite is of the right political persuasion. I’ve long ago come to accept that hypocrisy is one of the costs of doing politics in a democracy; people are flawed and mistake-prone, we all change our minds all the time for a variety of reasons (some of them not very good), and there are bigger fish to fry than playing “gotcha!” with your garden-variety politician over some statement that was made years ago. I personally find that hypocrisy gets my blood boiling in a way other things don’t, but my own personal pet peeves, I must remind myself, do not define American politics. Most people just don’t find hypocrisy to be a deal breaker.
In some cases, though, I really do think we should take hypocrisy more seriously, especially as a person of the left who wants the left and liberals and progressives to take democracy, and its norms, much more seriously. (link to democracy piece here). President Biden’s blanket pardon of his son Hunter last week, and his hundreds of blanket and preemptive pardons earlier this week, is one of those times, especially considering the looming lawlessness and norm-busting of the second Trump administration we are just six short weeks away from. The Biden pardon is a test case for who is committed to democracy, and who is merely focused on winning this week’s political fight on Facebook or cable news. Hypocrisy matters when it means abandoning democratic norms.
Here’s the key point I’m trying to make today: Biden’s pardon of his son makes it impossible to argue from a place of integrity against Donald Trump’s abuses of things like the pardon power when he takes office. The point I’m not trying to make, crucially, is that condemning Biden’s actions here will somehow magically stop Trump from abusing the pardon. I am aware that Trump is going to do what he is going to do, regardless of Biden’s actions here. But, Biden’s use of the pardon power over the past weeks has displayed a shocking level of hypocrisy, and this instance of hypocrisy does more than just tarnish Biden’s integrity; it puts our democracy further at risk.
I understand the argument being made by Biden apologists and supporters that to not use the pardon in this way is to disarm unilaterally. Again, Trump and his cronies are going to abuse power to enrich themselves and their friends no matter what. The least Democrats can do is turn those same levers of power against Trump while they can, while they still hold any power. This is a powerful utilitarian argument for a nihilistic conception of power relations; it’s also a good argument to discredit the idea of a limited, constitutionally-bounded democracy.
Proponents of democracy should work really hard to avoid falling into a partisan trap on things like the pardon, and instead take a longer view of the battle we are waging here. We should be in favor of losing some battles to win the war for American democracy. And that may mean ceding this ground to Trump, letting him be the one to abuse power while we refuse to do so. Not all seized ground is good ground, after all.
The pardon power is one of the key norms within our constitutional democracy that helps hold in balance the necessary use of the police power by the state, and the way that police power can be overly punitive or misused. The Founders inserted this broad discretion into the powers given to the Executive Branch as a sort of check, not on other branches of government, but on the tendency of human nature to meet wrongdoing with a disproportionate response that could at time veer into injustice and wrongdoing itself. The Federalist Papers state, “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
The ability of courts to administer justice can and often does become used in a way that is undemocratic and unjust. Our constitutional order rests on the limited use of the power of the state in the lives of the people, and crucial to this is trust in the enforcement of laws. The pardon, beyond just its utility, is a symbol of justice, in that, when used well, it reminds people that our government can be just and fair, even if at first it was unjust and unfair. It’s a reminder that we are limited and flawed beings, and that at times, a reprieve should be granted and wrongs should be righted.
“Historically, a presidential pardon was designed to show mercy to a remorseful individual who had usually already paid some price for a crime of some sort. The most recent DOJ regulations, for example, reserve pardons for people who’ve waited at least five years after their conviction or release from prison. In theory, nothing qualifies the power but a president’s civic virtue; in practice, it is usually applied very narrowly.”
The way Donald Trump used the pardon power in his first term, and the way Joe Biden has responded here, strays far beyond the original intention of the pardon, and into territory that threatens the utility the pardon has in preserving democracy and justice. When the pardon is abused in this way, it undermines trust in our system of laws, and promotes the idea that government is a weapon to be wielded to get one’s way and assure one’s friends and family that they can act free of any worry that their fellow citizens will be able to check their rapaciousness, greed, and wrong doing.
Trump used the pardon to free those rightfully convicted by a jury of their peers; Biden has taken it even further in his use of the proactive pardon, effectively forgiving in advance any crimes someone may or may not commit in the future. This is a dangerous precedent to set. Here is Sullivan again:
“A pro-active pardon for criminality ordered by the president is, after all, another phrase for the categorical end of the rule of law. It means that a president’s flunkies — or anyone else in presidential favor — can commit any crime in the secure knowledge there will never be punishment. It thereby puts an entire class of people selected by the president effectively above the rule of law. It makes the president a king.”
Again, it is beyond a doubt Trump would have used the pardon in this way, regardless of what Biden did or did not do. He has promised explicitly time and time again that he was used preemptive pardons to assure that his appointees can act with impunity. He is taking advantage of a long-running strategy of the Republican Party to undermine the rule of law by refusing to ever admit that their partisans could be truly guilty of any wrong doing. But, by striking first, Biden has made it nearly impossible for the Democratic Party to respond with integrity to Trump’s misuse of this power, a key blow to the hopes of those who care about American democracy. This act undermines our constitutional system of government in favor of more unchecked power being given to the president.
One last time, I’ll defer to Andrew Sullivan:
“It means we could be moving incrementally from the rule of law to the rule of the executive — a system where those in government are above the law, and each president of either party operates on that understanding. Each POTUS will abuse the system to maximize his own side’s advantage; and then his or her successor will do the same in reverse. We simply alternate elected monarchs — just as the Founders intended!”
The victory of democracy over the anti-liberal, anti democratic forces embodied and empowered by Donald Trump and his cronies has to have a longer horizon of victory that the next news cycle, or even the next midterm election. This fight is not going to be won in the near future; it is to far tilted towards the other side of a quick victory. No, this is a long fight, that will carry across the coming decades, that will determine the fate of our democratic project. It will take a strong commitment to democratic norms, held fast to even when it seems like the immediate best move is to abandon those norms to counter the anti-democratic moves of the other side. The fight for democracy will be a long victory, the fruits of which will be enjoyed more by our children and grandchildren than us. Holding fast to our belief in things like the proper use of the pardon power, or the freedom of speech and the press, or the peaceful handover of power even to those we despise - these are the weapons we will use to win. Abandon them, and what are we even fighting for?
I wrote in the lead up to the election about my fears for the future of our democracy if Donald Trump won the election. Those fears still exist, with good cause, as Trump promises to undermine the rule of law and appoints bad actors across his incoming administration. The most terrifying part, however, is the choice by our sitting president and his partisan defenders to take up the anti-democratic reins themselves during their final days in office. America is in deep trouble, and there are very few willing to take notice.