Now I am no expert on the legality or illegality of pardons by any President. I depend on the legal analysis of experts in order to understand some of the ramifications of the recent flurry of pardons by both PDJT and Joe Biden. One such expert is Jonathan Turley who is a recognized constitutional expert. However, even Turley would not want to guess how the Supreme Court would rule on most cases that come before them. Will the pardon power ever be reviewed by the Supreme Court? Only time will tell.
There has been a lot of throwing up of hands lamenting the extraordinary number of pardons by both PDJT and Joe Biden. Again, my analysis here depends hugely on the work of others.
Some, mostly but not exclusively on the left, argue that pardoning the offenses of the J6ers and commuting the sentences of those still in jail is unreasonable and outrageous. In addition to the usual suspects on the left, one police union has said as much.
Those assertions are outrageously false when one looks at what really happened.
In order to fully appreciate the playing field in question, we must understand pardons in a legal sense. The Supreme Court has weighed in on this issue in the case of Burdick v United States, 1915.
In Burdick, The New York Tribune had reported that a person with political connections was smuggling jewels into the United States. The Wilson administration knew that the leaked information had to have come from the Customs Service, and suspected that it had been obtained by bribery. A federal grand jury subpoenaed testimony from George Burdick, the city editor, and from shipping news editor William L. Curtin. Burdick and Curtin both took the Fifth and refused to reveal the source of the information. In 1914, Woodrow Wilson issued a blanket pardon to the men in a maneuver to force them to testify, because the Fifth Amendment does not apply if the person is immune from prosecution. They refused to accept the pardon or testify. Burdick was fined and jailed.
In a unanimous decision (8-0), the Court ruled that Burdick was entitled to reject an unconditional pardon for a number of reasons, including the implicit admission of guilt. As Burdick was entitled to reject the pardon, he was also entitled to assert his right against self-incrimination under the Fifth Amendment.
So, according to the Supreme Court, contrary to what Joe Biden said during his issuance of blanket pardons, voluntary acceptance of a pardon is an admission of guilt. The reason a pardon must be accepted is that in so doing, one gives up a constitutional right. One can no longer invoke the Fifth Amendment against self-incrimination since legal jeopardy no longer exists.
Let’s be reminded that a presidential pardon does not erase an offense. In the case of the J6ers, “parading” or whatever terms were used for walking through the Capitol is not gone. This also applies to whatever bogus charges were heaped on top of the pile in order to suppress speech that the Communist Democratic overlords did not like.
Let’s look at the act of Biden pardoning the J6 Committee members. Because Biden pardoned these people, it is now clear and undisputed that the government and members of Congress obstructed justice. They created an environment where it was not possible for any J6er to get a fair trial or to be sentenced fairly. The acceptance of these pardons by such members is an confession of guilt to such charges.
Karl Denninger notes:
That doesn’t make the actions of those who paraded (or stole and destroyed, for that matter) into “not occurred.” They did take those actions, and they were charged or convicted as the case may be. But the trials were not fair as justice was obstructed so whether the original sentences were reasonable (or whether, for example, probation or a modest fine under misdemeanor penalties was a more-appropriate penalty in the case of someone who’s crime was mere presence in the Capitol building) was never lawfully and fairly adjudicated.
Some are pushing the narrative that PDJT’s actions in connection with the J6ers were wrong. If an even-handed approach to justice had been present, there might be some merit to that argument. However, Biden pardoning obstruction of justice, witness tampering and willful destruction of evidence by persons who led to those prosecutions changes the landscape dramatically. Acceptance of these pardons is in fact an admission of guilt to the above-mentioned offenses.
Such admissions of guilt not only make PDJT’s pardons reasonable, they in fact become mandatory if justice is to be served. The entire affair was a gross miscarriage of justice. And I have not even gone into how the people got into the Capitol.