An interesting point about Presidential pardons

 

The inimitable Karl Denninger makes a very interesting point about Presidential pardons.  Emphasis in original.

The issuance of a pardon imputes guilt and acceptance of one, which is voluntary, confesses guilt (Burdick .v. United States, 1915.)  The reason you must voluntarily accept a pardon is that once pardoned you cannot assert 5th Amendment protections as the risk of criminal sanction has been removed.  Thus you must accept it voluntarily in that you are giving up Constitutional Rights, but in doing so you also confess to the truth of the offense(s) in question.

. . .

A pardon does not erase an offense -- that is, the offense of "parading" or whatever have you that a person was convicted of from Jan 6 is not "gone", however, it is undisputed, because Biden pardoned all of the Jan 6 committee members, that the government and members of Congress obstructed justice which was used to deny said persons a fair trial.  That issuance of the pardon by Joe Biden imputed said guilt and the acceptance thereof confessed to same by the committee members.

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.

Trump's pardons and commutations thus might objectively be considered "wrong" except for Biden's action on the way out of office, in which he pardoned obstruction of justice, witness tampering and willful destruction of evidence by persons who led to those prosecutions, all of which were part and parcel of the original charges and trials and due to the acceptance of Biden's pardons by those committee members is in fact a confession of guilt to those federal offenses.

As a direct result Biden's preemptive pardons make the Jan 6 pardons by Trump not only objectively reasonable they became, at the moment Biden issued them, mandatory.

There's more at the link.

That line of argument had not occurred to me.  I think it's stretching things a bit, because I'm sure President Trump had already decided on who he was going to pardon before he took the oath of office - and before President Biden had issued his last-minute pardons of the January 6th investigative committee.  Therefore, I don't think there was a cause-and-effect relationship between one set of pardons and the other.  However, in an ex post facto analysis, I think Mr. Denninger has a valid point.  Whether it legally justifies President Trump's pardons is open to debate, of course, and I'm sure lawyers will have a fine old time arguing about it.  (Of course, there is no need for such legal justification:  the Presidential pardon power is not based on such justification.  It's the prerogative of the Chief Executive of our Republic to pardon whoever he pleases, which is how President Biden got away with his blatantly self-serving and [in my opinion] dishonest and immoral pardons to begin with.)

This also raises the question of whether the Presidential pardon power should be subject to any restrictions, from the committees in many States that consider gubernatorial pardons before presenting their findings to the Governor, to something like the "advice and consent" of the Senate as required for many senior appointments.  I can see arguments in both directions.  I tend to think that unfettered pardon power is a good thing, as long as it's exercised in an honest, upright, moral manner.  How many of our Presidents can be said to have been honest, upright, moral men?  I'll leave that to you to decide for yourself.

Peter