President Joe Biden should use his pardon power to proactively shield people President-elect Donald Trump and his FBI nominee Kash Patel have singled out for retribution — and ignore the "myths" people are promulgating to argue he should refrain from doing so, former conservative turned-anti GOP pundit Jennifer Rubin wrote for The Washington Post on Monday.
Her advice followed alarm bells over Patel's writings that target a number of government officials, even some Republicans, as "Deep State" actors to be taken care of.
For one thing, Rubin wrote, contrary to many people's claims, there is ample historical precedent for pardoning entire categories of people: "After Washington, President John Adams issued a broad pardon for those involved in the Fries Rebellion in 1799 in Pennsylvania (i.e., prosecutions of 'any person or persons by reason of their being concerned in the said insurrection'). With a small exception, President James Buchanan, for example, pardoned Brigham Young and his Mormon followers who had engaged in a conflict with the U.S. military. In the 19th century, Benjamin Harrison and Grover Cleveland also issued pardons to Mormon polygamists."
Likewise, she said, there have been preemptive pardons for people who haven't been charged with anything yet. The suggestion is that Biden can pardon those considered to be at threat, despite them not yet being charged with any crime.
Some others have voiced concerns that the pardon power wouldn't actually protect recipients fully, Rubin noted. "It is correct that such an amnesty would not protect recipients from criminal investigation for future conduct, from civil suits or from IRS audits.
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" ... However, by limiting the pardon to a discrete group of people, making clear this is essentially a witness protection program to insulate the recipients from Trump’s wrath, Biden can spare some conscientious citizens and alert the public to the dangers Trump and Patel pose."
Moreover, she wrote, it's also not true, as some people claim, that accepting a pardon is an admission of guilt: a federal appeals court refuted this in "2021’s Lorance v. Commandant, [where they] held that the defendant’s acceptance of a full and unconditional presidential pardon did not amount to an admission of guilt, and therefore the defendant did not waive his habeas rights upon accepting it."
Above all, she concluded, Trump is going to abuse the pardon power himself either way, no matter what Biden does — and the risk of withholding the pardons is far greater than any theoretical risk of granting them.
"If ordinary citizens face retribution for daring to testify against powerful bullies, few will do so," wrote Rubin. "To preserve the justice system, to encourage people to provide evidence, Biden should grant them amnesty — in effect setting up a witness protection program. It is the least he can do for selfless Americans."