Protecting Trump’s enemies from prosecution only reinforces the idea of politics as retribution. Instead, Democrats should protect their most vulnerable targets.
President Joe Biden is heading to the West Wing in January 2023.
(Chip Somodevilla/Getty Images)
The pardon phase of a “lame duck” presidency is never pretty. Bill Clinton extended pardons to major donors such as Mark Rich and political allies such as Susan McDougall, Mel Reynolds and Dan Rostenkowski, as well as his brother Roger. George W. Bush was much more stingy with his pardon power, but still maximized the political payoff by pardoning former Republican Rep. Randy “Duke” Cunningham and commuting the sentence of former Dick Cheney aide Lewis “Scooter” Libby. Donald Trump’s first term has brought an abundance of pardons for his cronies and enablers, from Roger Stone and Michael Flynn to Dinesh D’Souza — and Scooter Libby, to be nice. Trump’s blatantly selfish use of executive pardons has indeed created a new category of prison devastation for legal analysts, it is “pardoning accomplices”.
In the final days of Biden’s presidency, the pardon power stretches again to potentially host a group of what might be called “imaginary henchmen” — lawmakers and officials considered enemies of the MAGA movement, such as Health Care Administrator Anthony Fauci, Adam Schiff, the newly elected senator who led Trump’s first impeachment in the House, former Speaker O Joint Chiefs of Staff Mark Milley and former Republican House Representative Liz Cheney. It follows Biden’s decision to pardon his son Hunter on gun and tax charges after he promised not to.
This series of preemptive pardons is also a response to Trump’s clear mission to exact revenge on his detractors during his second term. His nominee to head the FBI, Cash Patel, has repeatedly vowed to hunt down Trump’s critics for legal retribution, and his nominee for the Department of Justice, Pam Bondi, is another proven, if less publicized, Trump lackey. The threat of prosecution by such actors is far from idle—but using preemptive pardons to eliminate it is too passive in concept and too narrow in focus. Pardons, after all, have traditionally been extended to people who have been convicted of crimes, illegally or otherwise, and using pardons to protect people who raise legitimate concerns and criticize legitimately in the service of the public good promotes, rather than arrests, criminalization policies. , which all sides of our corrupt system claim to hate. Nor is it comforting to Trumpism’s lesser-known and politically connected foes, who cannot use their proximity to Biden as a shield against future prosecution. As with previous Trump and Clinton pardons, these pardon extensions will reinforce the impression that clemency from the Oval Office extends only to the American power elite.
So, let me make a modest suggestion: To buy the right to a pardon, Biden needs to hand it out everywhere. One obvious way to apply it, which would have major moral and political benefits, would be to grant preemptive amnesty to undocumented (and documented) immigrants who now face the prospect of indiscriminate mass deportation when Trump takes office next month – people who entered the country illegally within the last 20 years, who are currently awaiting an asylum decision, or under the age of 12 years. (This idea is not original with me, by the way, I came across it on Bluesky account (old friend Daniel Radosh.) Special attention should be paid to including legitimate Temporary Protected Status recipients, such as the Haitian community in Springfield, Ohio, relentlessly demonized by the Trump campaign—Trump will surely try to repeal the TPS program as he moves forward with mass deportations. If Democrats are serious about opposing progressive MAGA-fascism, this would be an effective way to create serious obstacles to its implementation from the start.
In the long run, this strategy may prove legally fruitless, particularly if Trump can rely on a decimated federal judiciary to bolster his bogus, jury-rigged argument that the immigrant “invasion” requires the executive branch to take expansive military emergency action. But the imminent plan to legally persecute and repatriate non-whites based on antisocial and violent traits ascribed to them on the basis of national origin is indeed a dramatic and incalculably damaging tilt toward fascism, and urgent and widespread use of executive power to thwart it is a political priority. necessity. This is especially true for the opposition party, which often cites MAGA’s authoritarian rule as a threat to democracy and the rule of law. Democrats sat disastrously on their hands when the first Trump White House created its own more modest but equally bogus agency to combat a non-existent wave of violent crime by immigrants; indeed, to its shame, the Biden White House left it untouched after the repeal of the executive order that created it. A mass amnesty for the immigrants threatened by this horrific escalation of Trump’s xenophobic predations would mark a long overdue clean break with the Democrats’ cowardly and worthless cooperation with draconian border policies designed to fuel unwarranted moral panics and fantasies of political revenge on the right. as a bastion of taxpayer support in this country under threat of brown shirt raids directed from Washington.
These are the moral arguments for mass preemptive pardoning of immigrants; the political is less relevant but equally compelling for the Democratic Party, which has driven itself into an electoral wilderness without a compass. The Harris-led party has never struck voters with a clear and compelling sense of purpose or identity, claiming to defend democracy and the interests of working Americans while allowing big donors to dictate its economic agenda and courting a never-sizable cohort of Never Never supporters. Trump. His message on immigration was particularly bleak and self-defeating when Harris promised to sign the brutal and regressive Republican border overhaul that Trump sabotaged to continue his campaign against immigration moral panic; meanwhile, Biden has did almost nothing to address the plight of immigrants in his final days in office.
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A bold attempt to move Trump’s mass deportation plan out of the gate in the White House will send an unequivocal signal that Democrats will go to great lengths to prevent the further spread of fascist rule and xenophobic lies by a cynical and morally bankrupt Republican Party. This would create roughly the same galvanizing effect for the anti-Trump opposition brigades of protesters and legal supporters who tried to block the Muslim ban in the early days of Trump’s first term.
Again, the legal basis for a mass immigrant pardon can be shaky; because “unlawful presence” is a civil offense, a presidential pardon that applies only to criminals is unlikely to prevent deportation in court. However, some immigration lawyers believe there is actually a strong case for clemency. “There’s really no reason why the broad constitutional provision that allows the president to pardon ‘Crimes Against the United States’ couldn’t include civil violations of the Immigration and Naturalization Act,” says Boston immigration attorney Matt Cameron, who argued: for pardon on your podcast Introductory word. “It’s never been used that way, but I agree it should be. I here NYU Law Review article it makes all the arguments for all of this, I think, convincingly.”
Cameron also notes that a mass pardon could also give immigrants a solid path to citizenship. “There is also a major side benefit of this full pardon that non-lawyers hardly think about: Penalties for periods of unlawful presence will not apply, which will immediately help every undocumented person married to a US citizen who would otherwise either will have to wait outside the US for 10 years, or go through an extremely long (and uncertain) hardship exemption process,” he says. “This is what the Biden Program Keeping Families Together, recently killed by a federal judge in Texastried to do.”
Legal precedent aside, it’s also true that the current list of potential pardon recipients currently being considered by the Biden White House have also committed no crimes — the theory behind the preemptive use of pardons is that Trump’s law enforcement thugs will find backlash criminalize political dissent. Why not extend the same logic used to protect the civil liberties of Biden’s political allies in the White House to a far more inescapable group of hard-working immigrants?
As Democrats have proven time and time again that they are afraid of their own shadows in pushing for truly just immigration reform, here’s a tantalizing burst of social democratic rhetoric to get the ball rolling: A mass immigration amnesty act “will greatly improve the lives of a class of people who now have to hide in shadows, without access to many of the benefits of a free and open society. Very soon, many of these men and women will be able to step out into the sunlight and ultimately, if they choose, they can become Americans.” It was the Republican household god Ronald Reagan when he signed the bill extended amnesty and a path to citizenship by 3 million undocumented immigrants in 1986. No doubt Joe Biden has shown courage and imagination on immigration justice too late — so let him invoke the old Beltway saw of bipartisan agreement on the immigration reform he voted for nearly 40 years ago. But most of all, may he use the long-discredited power of the pardon to democratically protect the vast numbers of workers willing to be unfairly demonized and driven out of the country in a fit of fascist retribution. And may the Democratic Party come back to life based on this bold precedent.
