Friday Round Up! 12/5/24

Finding the right balance between justice and mercy.

The quality of mercy is not strained;
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest;
It blesseth him that gives and him that takes:
'T is mightiest in the mightiest; it becomes
The throned monarch better than his crown:
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthronèd in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice.

—The Merchant of Venice, Act IV, Scene I

I have been thinking this week of the above Shakespearean monologue, which I know by heart since directing a production of The Merchant of Venice in my third year of law school (for credit!). Although in the play Portia is imploring Shylock not to enforce the letter of his contract that would allow him to extract a pound of flesh from his delinquent debtor, in our current moment it perfectly captures the awesome, God-like authority that comes with the power to pardon.

The pardon power is a bit of an anomaly in a Constitution that sought to curb and check executive authority; it’s one of the few, if not only, “royal prerogatives” that made its way into the document. In The Federalist No. 74, Alexander Hamilton argues that the ability to pardon acts as a safety valve and corrective to the injustices that might naturally occur in the course of the criminal justice system — and, importantly, that to be effective, the power should rest in one person:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. 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. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.

In short, Hamilton makes the same point as Portia on the need to “season” justice with mercy, especially when that justice has been particularly cruel.

It’s important to keep this in mind when looking at President Biden’s pardoning of his son, Hunter. The question that should be asked is: Does this pardon enhance justice and the rule of law, or undermine it? I would argue that in Hunter’s case it enhances it, by correcting for a severe and selective application of the law to a person who would otherwise not have been prosecuted but for his last name. And, although President Biden could have pardoned Hunter earlier and cut the prosecution off at the knees, he didn’t: He let justice take its course first.

The “blanket pardon” extending back to 2014 is a little trickier, since that preempts justice altogether. But we are not living in normal times, and we must consider that the latitude of the Justice Department and the FBI to engage in politically motivated, and even fabricated, investigations has been significantly expanded and sanctioned by the Supreme Court’s immunity decision. Clearly, President Biden knows that it will be very easy for a Trump administration to gin up an “investigation” into the right-wing Burisma conspiracy theories (you can read my deep dive into that rabbit hole here). The legality of a blanket pardon has not been tested (the only other real precedent is President Ford’s blanket pardon of Nixon), so Trump’s Justice Department could very well still try to investigate and prosecute Hunter and litigate this issue up to the Supreme Court. But this would still add a speed bump — “friction” — to that possibility.

As we look ahead to potentially having an FBI led by a man who has an “enemies list” and has explicitly vowed revenge against specific people¹ — including former members of congress, military officials, and government prosecutors — it’s worth asking how Biden can use the pardon power to create friction for others who may be unjustly targeted. A “protective pardon” to shield the people who tried to realize democratic (small “d”) ideals like transparency, accountability, and the rule of law, “seasons justice” by preventing the legal system from being weaponized against them.

Finally, in The Federalist No. 74, Hamilton addresses whether there should be an exception to the pardon power for treason, or at least left to the legislature in those instances. Hamilton presciently notes that this could be dangerous because in such cases, the legislature might actually be sympathetic to the causes which gave rise to the seditious behavior, and prematurely exonerate the guilty party (which is more or less what happened in Trump’s second impeachment trial). But, he notes, there are also reasons why a president may be best suited for determining when mercy is warranted even for a crime against the state:

[W]hen the sedition had proceeded from causes which had inflamed the resentments of the major party, [the legislature] might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency…. [I]n seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.

On that front, I’ll throw out a controversial take: I think President Biden should pardon Trump. I believe this would recognize the fact that the cases against him will never be fully realized (sorry folks, they are done), and give the “final word” on it to Biden, who could lay out the details of the crimes committed and why he bestowing grace on his predecessor/successor. Would Trump accept it? Perhaps not. But it would be a strong symbolic act demonstrating a willingness and need to close a chapter and move forward together. It would also highlight the vindictiveness of a Trump administration that continued to target after perceived “enemies” moving forward.

Renato and I took Thanksgiving off so I don’t have a podcast to post for this week but we discuss the pros and cons of the pardon issue in more detail in this coming week’s pod, so stay tuned!

Noteworthy clips from this week:

I discussed why Kash Patel is an outlier in the history of FBI Directors, and why that is a problem for the FBI (and for us). In case you missed it, I did a longer video explainer earlier this week which I hope you will check out.

Articles worth reading:

• This Atlantic article from April 2022 has been in my queue for a while but I am glad I am reading it now as it perfectly describes where we are now and what we need to fix going forward (there is an audio option at the top!)

• With all of the pardon talk, this throwback to my first New York Times op-ed (and my first op-ed ever) in 2001, right after I graduated from law school

Upcoming events:

• TBA: The Freedom Academy Virtual Holiday Happy Hour! NO Trump talk allowed! Everything is so heavy nowadays…I just want to have a fun, positive discussion as we close out the year. Likely the last week of December.

• Guest speaker Ruth Ben Ghiat, author of Strongmen: From Mussolini to the Present, on Sunday, January 5, at 8 p.m. EST. Ruth and I will springboard from our Brookings talk to take hard look at what lies ahead in the coming Trump administration, and how to prepare for the worst while remaining active and engaged. We promise to leave you with action steps and hope, so please join us!

• I am working on a Wine & Fries Club (founding member) guest/event so stay tuned…

I’ll be in Antigua next weekend so no round up, but I will try to send a shot of the beach!

1. It will be my policy moving forward not to name specific names on any “enemies list” as I believe that starts to normalize the idea that anyone so named belongs on such a list.