The blogosphere is abuzz over President Biden’s pardon of his son, Hunter, with criticism ranging from regret to denunciation.
There is much to criticize, considering Biden’s previous vows not to intervene in the case. But facts change.
The prosecution, undertaken in about the same timeframe as Jack Smith’s legal pursuit of Donald Trump, was excessive — seeking imprisonment on charges that would have merited a fine at most for anyone other than the president’s son.
More important, however, was Trump’s vow earlier this week to appoint Kash Patel as FBI director — who he discussed installing after the 2020 election, but before the attempted insurrection on Jan. 6, a move blocked by then-Attorney General William Barr.
Trump’s latest move is curious. The FBI director position isn’t vacant, unlike Cabinet posts. Christopher Wray, who Trump appointed, served through the Biden administration and has a 10-year term through 2027.
Trump, after taking office, would have to fire Wray without cause, then ask the Senate to confirm Patel. That’s a double move likely to give pause even to Senate Republicans otherwise eager to confirm appointees, even those with scant qualifications.
Patel, unlike Wray, is an absolute Trump loyalist. Biden’s concern to avoid further harassment and vilification of his son is understandable.
And if pardons are the issue, we should consider one that Trump granted on Dec. 23, 2020, to son-in-law Jared Kushner’s father, Charles Kushner.
Charles Kushner served two years in federal prison on numerous charges, including tax evasion and witness tampering. The latter involved him hiring a prostitute to seduce his brother-in-law, who Kushner feared was talking to prosecutors.
He sent the resulting videotape to his sister, leading Republican U.S. Attorney Chris Christie, appointed by President George W. Bush, to call it “one of the most loathsome and disgusting crimes” he’d ever prosecuted.
Yet Kushner is Trump’s choice for ambassador to France. It’s a terrible fit for the historic role inaugurated by founder Benjamin Franklin, who as minister to France garnered vital support enabling the revolutionaries to defeat the forces of King George III and establish our independence.
The Kushner pardon, and those of other loyalists like Paul Manafort, Dinesh D’Souza, Roger Stone and Steve Bannon, doesn’t fit the usual understanding of pardons, which require contrition and acceptance of responsibility, as Hunter Biden has done.
Trump continues to explode the boundaries, written and unwritten, that govern political life. The main question is how soon resistance will begin, and how effective it will be.
How we came to this place begins with yet another pardon bestowed by President Gerald Ford in 1974 to his predecessor, Richard Nixon, for any crimes he might have committed during the Watergate scandal that sent many of his key aides to jail.
The pardon backstopped an earlier opinion from the Office of Legal Counsel that a sitting president couldn’t be indicted while in office — a finding untested in any court until after Trump’s first term, when it was treated as holy writ by the U.S. Supreme Court.
The next crisis of presidential conduct occurred in the 1980s when Ronald Reagan, astonishingly, provided arms to our sworn enemy, Iran, enabling it to stave off defeat against Iraq. The profits went to insurgents in Nicaragua, aid Congress had forbidden.
Reagan aides who were convicted also got their pardons from George H.W. Bush.
Now there’s Donald Trump, who effectively erased dozens of federal felony counts by winning back the White House on Nov. 5.
He might not have done so without unconditional support from Chief Justice John Roberts, who first sided with the court’s liberals to hear Trump’s appeal of Jan. 6 charges, then joined his fellow conservatives to deliver Trump v. U.S. in July.
It’s perhaps the most sweeping and perverse high court decision since Dred Scott v. Sandford in 1857 authorized slavery nationwide and helped bring on the Civil War.
Not only does the new decision grant “absolute immunity” for official actions, but exempts most unofficial acts from legal review. This despite the Constitution’s absence of any mention of immunity, and its specific authorization of both political penalties through impeachment and the legal sanctions of the criminal code.
There are gaping holes in the constitutional fabric as Trump readies his return. Yet most presidents overplay their hands, and Trump may have already done so.
Much depends on the willingness of independent-minded senators like Maine’s Angus King and Susan Collins to fulfill their own constitutional role on confirmations.
Even more lies with the new Senate majority leader, John Thune — not Trump’s choice — who will decide how and when to bring nominations to a vote come January.
As was written long ago, the world is watching.
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