Tangle - SPECIAL EDITION: Biden and Trump show us the promise and peril of presidential clemency.

Episode Date: February 17, 2025

Editor's note: We are off for President's Day today, but have a special edition featuring a guest writer today.Core to our mission at Tangle is offering perspectives from influential and thoughtful voices from across the political spectrum. As we've grown, our ability to advance that mission has also grown, allowing us a broader reach and new ways to offer coverage of political news to our subscribers.Today, we are pleased to publish a thoughtful essay from Jacob Sullum, senior editor at Reason, about President Joe Biden's and President Donald Trump's recent acts of clemency.Jacob Sullum, a senior editor at Reason magazine, is the author of Beyond Control: Drug Prohibition, Gun Regulation, and the Search for Sensible Alternatives, forthcoming from Prometheus Books.Our Executive Editor and Founder is Isaac Saul. Our Executive Producer is Jon Lall. This podcast was recorded by Will Kaback and edited and engineered by Jon Lall. Music for the podcast was produced by Diet 75 and Jon Lall. Our newsletter is edited by Managing Editor Ari Weitzman, Senior Editor Will Kaback, Hunter Casperson, Kendall White, Bailey Saul, and Audrey Moorehead. Our logo was created by Magdalena Bokowa, Head of Partnerships and Socials.  Hosted on Acast. See acast.com/privacy for more information.

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Get tickets now at LiveNation.com. From executive producer Isaac Saul. This is Tangle. Good morning, good afternoon, and good evening. And welcome to the Tangle podcast, a place where you get views from across the political spectrum, some independent thinking, and a little bit of our take. I am your host, editor Will K. back wishing you a happy President's Day. We're off from our normal newsletter today, but we'll be back in your inbox tomorrow around noon Eastern and a little bit later in the afternoon for the podcast. However, today we have something really special that we're excited to share with the Tangle audience. That is a contributed piece from Reason editor Jacob Sullum, and for a little bit of background on how this

piece came to be, one of our main goals headed into 2025 was to solicit some contributions from writers across the political spectrum who aren't members of Tangle staff, but who we cite in the newsletter and think are really insightful writers and thinkers about animating issues in U.S. politics. So when we started to think about who would be a great person to kick this contributor series off, Jacob Sullum is somebody who came to mind. You may recognize his name from past editions, but for just a little bit of who he is, he's a senior editor at Reason and a nationally syndicated columnist. He's also an award-winning journalist who's covered issues like drug policy,

public health, gun control, civil liberties, and criminal justice for more than three decades. He's the author of two books, one saying yes in defense of drug use and the second, For Your Own Good, the Anti-Smoking Crusade and the Tyranny of Public Health. He's a syndicated column distributed by Creator Syndicate, and you might have seen him in the New York Post, the Chicago Sun Times, Los Angeles Daily News, Wall Street Journal, USA Today, New York Times, you name it. He's been all over the place. We love studying him in Tangle because we think he has some really deep and interesting observations

about some of the biggest issues that we write about. When we approached him about potentially writing a piece, he said he was interested in the idea of presidential pardon power and some of the clemency actions taken by former President Biden and President Trump at the end and beginning of their respective terms. Now, presidential clemency power may not be top of mind at the moment, but I think that his essay speaks to some really interesting constitutional questions and questions about how presidents have evolved and their use of this very unique executive authority in recent years. Sulem looks back at kind of the original historical purpose of this power and then how Biden and Trump each applied it for aims that may not have been in line with what the framers wanted.

So without further ado, here's my reading of Jacob Sulem's piece, the first in Tangle's 2025 Contributor Series. Biden and Trump show us the promise and peril of presidential clemency by Jacob Sulem. During his 2020 campaign, Joe Biden said he would, quote, use the president's clemency power to secure the release of individuals facing unduly long sentences for certain nonviolent and drug crimes, end quote. He ultimately delivered on that promise in a big way, commuting 4,165 sentences by the end of his term. That total far exceeded the previous record set by President Barack Obama,

who granted 1,715 commutations. During his 2024 presidential run, Donald Trump said he would free Silk Road founder Ross Ulbricht, who had received a life sentence for creating a website that connected drug buyers with drug sellers. Quote, he's already served 11 years, Trump said, we're going to get him home, end quote. Like Biden, Trump kept his promise, granting Ulbricht a full and unconditional pardon on the second day of his second term. Anyone who questions long prison sentences for nonviolent drug offenders should recognize

these actions as appropriate uses of presidential clemency, aimed at mitigating what each executive sees as an injustice caused by draconian criminal laws. However, Biden and Trump have also shown that presidents can abuse clemency in service of their personal interests. Biden did that on the way out the door, when he granted preemptive pardons to his relatives and allies. Trump did it hours later, when he approved blanket clemency for nearly 1,600 of his most enthusiastic supporters, all of whom had been charged with crimes related to the January

6, 2021 riot at the U.S. Capitol. Neither Biden nor Trump abused the Constitution through their grants of clemency. Instead, they undermined the rule of law that the framers seemed to have had in mind when they granted it. An abuse immune from legal penalties, but still very much subject to contemporary criticism and the judgment of history. And if presidents worried more about such consequences, they might be a bit more careful in exercising one of their broadest powers. Before going further, it's worth spelling out how Biden and Trump's actions are indeed legal and proper. The Constitution empowers the president to, quote,

grant reprieves and pardons for offenses against the United States, except in cases of impeachment, end quote. That clause only includes two explicit restrictions. Presidential clemency applies only to federal crimes, and it cannot be used to override congressional impeachments. The Supreme Court inferred a third limit in the 1866 case Ex parte Garland saying that clemency power quote extends to every offense known to the law and may be exercised at any time after its commission end quote which rules out pardons for future crimes but with those three exceptions the clemency power is usually described as plenary meaning it is absolute and cannot be second-guessed by anyone else. Some legal scholars argue that further limits

on clemency can be inferred from other parts of the Constitution, common law principles, or criminal statutes enacted by Congress. Those limits might, for example, include self-pardons or clemency in exchange for bribes. But even those arguable exceptions are not broad enough to exclude what Biden and Trump did from legality. Instead of just determining their constitutionality, it is more instructive to judge acts of clemency based on the original rationale for empowering presidents to block or mitigate criminal penalties. In 1788, Alexander Hamilton explained why, quote, the benign prerogative of pardoning

should be as little as possible fettered or embarrassed. benign prerogative of pardoning should be as little as possible fettered or embarrassed. He said, quote, 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 accountants to sanguinary and cruel, end quote. In other words, pardons allow someone in our system to make fair and merciful exceptions. Why entrust this power to one official? Well Hamilton wrote, as the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would most be 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 objective of its vengeance." End quote. Commutations for nonviolent drug offenders, a category of criminal unknown to Hamilton and his contemporaries, certainly seem like, quote, mitigation of the rigor of the law aimed at alleviating excessively cruel penalties. In Biden's case, they also look like partial penance for his long record of supporting harsh drug laws. Trump slammed that record during his 2020 and 2024 campaigns, faulting

Biden for championing legislation that had disproportionately hurt African-Americans. For his part, Trump commuted more than 60 drug sentences during his first term, starting with Alice Marie Johnson, a first-time offender who had received a life sentence for participating in a Memphis cocaine trafficking operation. Trump highlighted Johnson's case during his 2019 State of the Union address in a 2020 Super Bowl ad and at the 2020 Republican National Convention, where Johnson gave a grateful speech. Quote, you have many people like Mrs.

Johnson, Trump told Fox News in 2018. There are people in jail for really long terms. End quote. The solution, he added, had to go beyond clemency. Quote, there has to be a reform because it's very unfair right now. He said, it's very unfair to African-Americans and it's very unfair to everybody. End quote. True to his word, Trump

supported the First Step Act, a package of criminal justice reforms that he signed into law at the end of 2018. We'll be right back after this quick break. We'll be right back after this quick break. guaranteed winner by 11 p.m. every day. With the Fizz loyalty program, you get rewarded just for having a mobile plan. You know, for texting and stuff. And if you're not getting rewards like extra data and dollars off with your mobile plan, you know, for texting and stuff. And if you're not getting rewards like extra data and dollars off with your mobile plan, you're not with Fizz. Switch today, conditions apply, details at fizz.ca.

Now Trump's sincerity on this issue is open to question. He embraced sentencing reform based on the advice of his son-in-law, Jared Kushner, but later complained that he did not reap the political benefit he expected for it. Even as Trump decried very unfair drug penalties, he praised Philippine president Rodrigo Duterte, who likened himself to Adolf Hitler while urging the murder of drug users, something Trump has

also repeatedly recommended. Trump had difficulty reconciling that contradiction and his ambivalence may have helped explain why his commutation total of 94 paled next to Obama's or Biden's, although still an improvement over his Republican predecessors George W. Bush, only 11, George H.W. Bush, only 3, and Ronald Reagan, 13. Biden and Trump showed they could use that benign prerogative of mercy in a way that Hamilton might have approved. The same cannot be said of Biden's clemency for members of his own family, which began

with his December 1st pardon for his son. Hunter Biden had been convicted of federal tax and firearm felonies, and he was about to be sentenced for those crimes. His father had repeatedly said he would not intervene in those cases, but he reneged on his promise, claiming Hunter was a victim of politically motivated prosecution. That charge was puzzling since David Weiss, the special counsel who brought both cases, had been appointed by Biden's own attorney general. Biden argued that Hunter had been, quote, unfairly and, quote,

selectively prosecuted because he was the president's son. Biden said it was, quote, clear that, quote, Hunter was treated differently from similarly situated defendants, adding that, quote, the charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election." Even if Biden was wrong and Hunter had been prosecuted dispassionately and fairly, that does not necessarily mean that Hunter was a fit object of the law's vengeance, as Hamilton put

it. The gun charges at least were based on conduct that never should have been criminalized to begin with. Under the law, it is a felony for quote, an unlawful user of any controlled substance to receive or possess a firearm. Hunter, an admitted crack user, violated that law by purchasing a revolver from a Wilmington, Delaware gun shop in 2018. He also violated two other laws by falsely denying his drug use on the form that you have to complete when you buy a gun from a federally licensed dealer. Now this law is not limited to crack addicts. It also encompasses, for example, cannabis consumers, even if they live in a state where

marijuana is legal, and anyone who takes a medication prescribed for another person, such as someone who uses a relative's leftover Vicodin after suffering a back injury. The law does not distinguish between someone who handles guns while impaired or only when stone-cold sober. That policy, which is only a step removed from a blanket ban on gun possession by anyone who drinks alcohol, makes little sense and several federal courts have deemed those prosecutions under the law inconsistent with the Second Amendment. Hunter Biden tried that argument and the judge overseeing his case ruled that he would have to wait until after he was convicted to use it.

So Biden would have had a good reason to want to extend clemency to his son. Yet Joe Biden enthusiastically supports the law that his son violated, which his administration stubbornly defended against constitutional challenges by marijuana users. Biden even signed a law that increased the maximum sentence for his son's crime from 10 to 15 years and created another potential charge, likewise punishable by up to 15 years in prison, for drug users who obtain guns. All told, someone who did what Hunter did could face combined maximum penalties of nearly half a century under the current law. Biden seems to think that a drug user who buys a gun

is committing a grave crime that merits a stiff prison sentence, except when his son does it. It is true that violations of this law are rarely prosecuted. Although survey data on drug use and gun ownership suggest that potential defendants number in the tens of millions, the Justice Department prosecuted an average

of just 120 such cases a year from fiscal year 2008 to fiscal year 2017. But people who are unlucky enough to be caught can suffer severe punishment. In a case where a federal appeals court overturned a conviction under this law, a gun-owning marijuana user was sentenced to nearly four years in prison. Biden also complained that David Weiss threw the book at Hunter after a DOJ plea deal fell apart. Although Weiss initially brought a single charge that he was prepared to drop once Hunter had completed a diversion program, he added two more charges after Hunter insisted on going to trial, raising his potential sentence from zero to 25 years.

That sort of a hefty, quote, trial penalty, which coerces defendants into surrendering their Sixth Amendment rights is indeed troubling. But unfortunately, it is par for the course in a criminal justice system where nearly all convictions result from guilty pleas. Biden's pardon for Hunter, in short, featured several shades of hypocrisy, which the president justified by claiming the charges were driven by politics, sounding

very much like Trump, who claimed every civil and criminal case against him was invalid for similar reasons. And to guard against future charges against his son under the incoming Trump administration, Biden's pardon not only spared Hunter sentencing on the gun and tax charges, but also barred his prosecution for any federal crimes he may have committed from January 1, 2014 through December 1, 2024. Biden took the same sweeping approach and invoked the same excuse when he pardoned five other relatives on January 20th.

Quote, my family has been subject to unrelenting attacks and threats, motivated solely by a desire to hurt me, the worst kind of partisan politics," he said. Unfortunately, I have no reason to believe these attacks will end." Biden had in mind Trump's repeated threats to investigate the entire Biden quote, crime family based on vague suspicions of corruption. But as a result of Biden's pardons, those allegations will never be fleshed out or tested by investigators, prosecutors, judges or jurors.

While Trump's claims may be completely baseless, we will never know for sure, and the pardons carry an unavoidable implication of guilt. We'll be right back after this quick break. Fandu casino daily jackpots guaranteed to hit by 11pm with your chance at the number one feeling winning which beats even the 27th best feeling saying I do. Who wants this last parachute? I do. Daily jackpots a chance to win with every spin and a guaranteed winner by 11pm every day. 19 plus and physically located in Ontario. Gambling problem?

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An evening to transform your life. If you say the truth and nothing else, you'll have an immense adventure as a consequence. You won't know what's going to happen to you, but the truth will reveal the world the way it's intended to be revealed. And the consequence for you will be that you'll have the adventure of your life. Live at Scotiabank Arena, March 6th. Get tickets now at LiveNation.com. Biden granted similarly sweeping pardons to former Joint Chiefs of Staff Chairman Mark Milley, former COVID-19 adviser Anthony Fauci, and members of the House Select Committee that investigated the Capitol

riot. Quote, I believe in the rule of law, and I am optimistic that the strength of our legal institutions will ultimately prevail over politics, Biden said. 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 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, they have done the right thing,

and will ultimately be exonerated, the mere fact of being investigated or prosecuted can irreparably damage reputations and finances." End quote. Milley, a vocal Trump critic who has described his former boss as fascist to the core, seems to fall into the category of potential targets who have done nothing wrong, or at least nothing criminal. Trump said that Milly deserved to be executed

for calling his Chinese counterpart in 2020 and 2021 to assure him that rumors of an impending U.S. attack were baseless. Trump's threats against members of the January 6th committee likewise seem legally groundless. Now, Fauci's case is subject to more debate. Fauci, quote, flat out lied to Congress when he said that no, the federal government had not funded gain of function research at the Wuhan Institute for Virology. Senator Ted Cruz, a Republican from Texas, said during a December 2022 interview on Fox News. Although the National Institutes of Health later, quote, made clear that was a lie, Cruz complained,

Attorney General Merrick Garland won't prosecute him, end quote. In a July, 2021 letter to Garland, Senator Rand Paul, a Republican from Kentucky, suggested that Fauci had violated a law which applies to someone who makes, quote, any materially false, fictitious or fraudulent statement or representation regarding any matter within the jurisdiction of the executive legislative

or judicial branch, end quote. Thanks to Biden's pardon, we will never know if prosecutors could have proven that case beyond a reasonable doubt. Likewise for additional charges that Hunter Biden might have faced in connection with his income taxes or allegations of foreign lobbying. And while prosecuting legislators for doing their jobs would be plainly frivolous and probably unconstitutional, our political system would have been better served by making Trump put up or shut up rather than issue pardons that could be interpreted as validation of his wild allegations. At least two members of the January 6th committee

seem to recognize as much. Quote, I am guilty of nothing besides bringing the truth to the American people and in the process, embarrassing Donald Trump. Former rep Adam Kinzinger, a Republican from Illinois, said on CNN a couple of weeks before Biden's pardons. But Kinzinger worried that, quote, as soon as you take a pardon,

it looks like you're guilty of something, end quote. Representative Adam Schiff, a Democrat from California, meanwhile, noted the dangerous precedent that pardons like the one Biden ultimately granted would set, quote, I don't want to see each president hereafter on their way out the door, giving a broad category of pardons to members of the administration. Sarah Isker, an attorney who served as a Justice Department spokeswoman during Trump's first term, expressed the same concerns when she explained why she did not want a pardon, even though she had been affixed with the scarlet letter of a

quote, deep state conspirator against Trump. Isker wrote in the New York Times on December 12th, 2024, if we broke the law, we should be charged and convicted. If we didn't break the law, we should be charged and convicted. If we didn't break the law, we should be willing to show that we trust the fairness of the justice system that so many of us have defended, and we shouldn't give permission to future presidents to pardon political allies who may commit real crimes on their behalf." If presidents get in the habit of preemptively pardoning their underlings, impeachment will

be the only real remedy for executive branch officials who commit crimes, and that option is only available when their abuses come to light soon enough to complete the process. Coupled with the Supreme Court's broad understanding of presidential immunity from criminal prosecution for, quote, official acts, this is a recipe for impunity that belies Biden's avowed commitment to the rule of law. Trump likewise abandoned his supposed principles when he indiscriminately pardoned defendants who had rioted in his name, outraged by his stolen election fantasy.

JD Vance, now the vice president, said on January 12th, quote, if you committed violence on that day, obviously you shouldn't be pardoned. A week later, Trump drew no such distinction, pardoning Capitol rioters who had assaulted police officers along with people who had merely entered the building without permission. That was too much even for Trump's reliable supporters at the Fraternal Order of Police, who said they were deeply discouraged by his pardons. Trump's pardons contradicted that commitment, but they were consistent with his interest in minimizing the crimes of his supporters.

Although he once called the riot, quote, a heinous attack on the United States Capitol, end quote, he has more recently portrayed it as a, quote, day of love featuring heroes and patriots who were unjustly punished for expressing their views. The pardons, Trump claimed, were necessary to correct a, quote, grave national injustice and begin a process of national reconciliation, end quote. But such reconciliation is impossible when the president is willing to excuse political violence, as long as it is perpetrated by his supporters.

Hamilton thought the benign prerogative of pardoning would allow mercy and appropriate cases. Hamilton thought the benign prerogative of pardoning would allow mercy in appropriate cases. With the notable exceptions of Obama and Biden, we have not seen much of that in recent decades, although perhaps their examples will encourage future presidents to be less stingy. Hamilton also thought that entrusting a single person with the power of clemency would, quote, inspire scrupulousness and caution, and that the dread of being accused of weakness or connivance would foster circumspection.

Biden and Trump managed to dash that already beleaguered hope in a single day. All right, that is it for the contributed essay from Jacob Sullum, a senior editor at Reason Magazine. We hope you enjoyed the piece and if you have thoughts, feel free to write in to us. We're happy to pass on feedback to Jacob or answer any of your questions about the series or what we're trying to do with it more generally. For now, enjoy the rest of your day wherever you may be and we will be back with our normal newsletter tomorrow.

Bye, y'all. Our podcast is written by me, Isaac Saul and edited and engineered by John Wall. The script is edited by our managing editor, Ari Weitzman, Will Kedak, Bailey Saul, and Sean Brady. The logo for our podcast was designed by Magdalena Bacopa, who is also our social media manager. Music for the podcast was produced by Diet 75. If you're looking for more from Tangle, please go to www.reettangle.com and check out our website.

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