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| Pix Credit: Brecht/Weill Three Penny Opera Production |
Presidents will be presidents. They must be; bodies giving life to an office the compulsions of which are unavoidable. They retain whatever the founders of the Republic thought useful to preserve from the Crown prerogative. Among these the pardon power. It was meant to be political in the sense that a president invoking it ought to be guided by conscience. . . and sometimes conscience is guided by all sorts of things in a Republic deeply divided along factional lines. It is not clear what value there is in trying to climb into the mind of a president exercising this intensely personal prerogative of office. And, to be quite clear, I have absolutely no opinion about how and with respect to whom the president exercises the pardon power. The fiercely personal character of the power is the essence of its nature. The political consequences of those choices may be significant, but that is the nature of the power and those consequences. The rest is for historians. For contemporaneous press opinions in the form of reporting see here, here, here, here, and here.
One way in, one can suppose, is through justification Statements delivered along with the pardons. Mr. Biden, true to the nature of the Presidency, has added his own personal touch to the ancient practice of "midnight" actions taken by an outgoing president (Governing A-Go-Go--The Busy End of Mr. Biden's Presidency and the Semiotics of Legacy). Bravo (but fair is fair and bravisimo to all past and future presidents indulging in the same practices altered to suit time and context). In his "Statement from President Joe Biden" reproduced below, and issued as Mr. Biden was overseeing the movers out of the White House (figuratively speaking of course), Mr. Biden sought to protect the "lifeblood of our democracy" (incarnated in those to be pardoned) against "ongoing threats and intimidation for faithfully discharging their duties" (Statement). Fair enough. Each of these persons, of course, have shown that in doing their duty as they saw it they did not become friends with the incoming President and members of his administration. Yet the "threats and intimidation" past may be more a reflection of the actions of the Administration of Mr. Biden and those of allies in State prosecutorial organs that, over the last four years, have honed the practices so feared to a knife's edge. That they failed against the person (and his entourage) who now moves into the White House does not mean that the President (and allies) who next wield this instrument might use them to better effect.
And thus the moral of the pardons may well be: It is always useful to keep in mind that litigation, like a hammer, has no ideology, and the techniques of both are indifferent to the objects against which they are directed.
20. FINALE OF THE THREE PENNY OPERA — MR. AND MRS. PEACHUM, POLLY, MACHEATH, BROWN AND CHORUS CHORUS — Listen! Listen! Listen! Listen! Listen! Listen! Listen! Who is coming? Listen! Who is coming? Listen! Who is coming? Listen! Who is coming? The royal messenger on horseback! Listen! Who is coming? The royal messenger on horseback! B. — In honor of her Coronation, the Queen commands that Captain Macheath shall be set free at once, and he is also to be raised to the ranks of the hereditary nobility, and be given the Castle Marmarel, and a pension of ten thousand pounds until the end of his life. And to the present bridal pair the Queen sends her royal wishes for happiness. (Brecht/Weill, Three Penny Opera, Libretto; opera video here; original German version here)
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| Pix credit NYT |
Postscript--it appears that while Mr and Mrs Trump were knocking on the door, Mr. Biden, last last also pardoned his siblings and their spouses (ABC News). The Department of Justice pardons list may be accessed here.
Statement from President Joe Biden
Our nation relies on dedicated, selfless public servants every day. They are the lifeblood of our democracy.
Yet alarmingly, public servants have been subjected to ongoing threats and intimidation for faithfully discharging their duties.
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.
General Milley served our nation for more than 40 years, serving in multiple command and leadership posts and deploying to some of the most dangerous parts of the world to protect and defend democracy. As Chairman of the Joint Chiefs of Staff, he guided our Armed Forces through complex global security threats and strengthened our existing alliances while forging new ones.
For more than half a century, Dr. Fauci served our country. He saved countless lives by managing the government’s response to pressing health crises, including HIV/AIDS, as well as the Ebola and Zika viruses. During his tenure as my Chief Medical Advisor, he helped the country tackle a once-in-a-century pandemic. The United States is safer and healthier because of him.
On January 6, 2021, American democracy was tested when a mob of insurrectionists attacked the Capitol in an attempt to overturn a fair and free election by force and violence. In light of the significance of that day, Congress established the bipartisan Select Committee to Investigate the January 6th Attack on the United States Capitol to investigate and report upon the facts, circumstances, and causes of the insurrection. The Select Committee fulfilled this mission with integrity and a commitment to discovering the truth. Rather than accept accountability, those who perpetrated the January 6th attack have taken every opportunity to undermine and intimidate those who participated in the Select Committee in an attempt to rewrite history, erase the stain of January 6th for partisan gain, and seek revenge, including by threatening criminal prosecutions.
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.
That is why I am exercising my authority under the Constitution to pardon General Mark A. Milley, Dr. Anthony S. Fauci, the Members of Congress and staff who served on the Select Committee, and the U.S. Capitol and D.C. Metropolitan police officers who testified before the Select Committee. The issuance of these pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense. Our nation owes these public servants a debt of gratitude for their tireless commitment to our country.
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