I understand what courts have determined. But the law is open and subject to contestation. Moreover, there are open questions. There are unsettled matters—matters to be settled by action. I will return soon to my argument concerning the immunities and privileges of citizenship and why illegal aliens should probably not enjoy them, at least not to the same extent as citizens, and what that would look like in practice. But there’s another matter I want to briefly discuss, and that’s the matter of presidential pardons.
I just listened to Tom Fitton (of Judicial Watch) telling Steve Bannon (of the War Room) that the Trump Administration should proceed with investigations and even prosecutions if there is sufficient evidence of former Biden officials pardoned by Biden on the grounds that these pardons constitute the null set and there is compelling evidence to pursue those pardoned. The pardons are invalid, Fitton arguments. They don’t count. Fitton is onto something here.
The US Constitution grants the President the power to issue pardons for “Offenses against the United States.” While this authority is broad, there is an argument to be made that pardons that do not specify the crimes or convictions they address are legally invalid. This argument rests on foundational principles of constitutional law, legal clarity, and due process.
A pardon functions as a form of legal forgiveness, removing penalties associated with a specific crime or conviction. For a pardon to have legal meaning, it must be tied to a particular act or offense. Without such specificity, the pardon becomes ambiguous and therefore difficult for courts, prosecutors, or the public to interpret or enforce.
Legal systems (rational ones, anyway) rely on clearly defined actions and consequences; a pardon with no stated offense fails to meet that standard thus undermining the rule of law. Pardons without crimes specified are just as Kafkaesque as prosecution of individuals without crimes specified (which is why Trump’s felony convictions in a New York court are not real).
Franz Kafka’s The Trial (Le Procès) is a surreal novel that follows Josef K., a respectable bank clerk who is arrested and prosecuted by a remote, inaccessible authority for an unspecified crime. As he navigates a labyrinthine and oppressive legal system, Josef becomes increasingly consumed by confusion, helplessness, and paranoia. The novel explores themes of bureaucratic power, guilt, and existential dread, ultimately portraying a world where justice is arbitrary and elusive. His novel captures the problem of guilt and innocence where no crime is identified.
Unspecified pardons raise serious due process concerns. They relieve citizens of liability without any formal legal findings. This circumvents the judicial process and undermines accountability. Such pardons carry a high risk of abuse, potentially shielding individuals from investigation or prosecution for unknown or future crimes, blurring the line between legitimate clemency and obstruction of justice.
While the Supreme Court has affirmed the broad scope of the pardon power (e.g., the 1915 case Burdick v. United States, in which George Burdick, an editor at the New York Tribune, granted a pardon by President Woodrow Wilson for any federal offenses related to publishing an article about alleged customs fraud, refused the pardon), the logic of these rulings presumes a pardon is directed at a known offense. Allowing non-specific pardons erodes legal norms and open the door to unchecked executive power.
I agree with Fitton. The Trump Administration should investigate and prosecute pardoned individuals if sufficient evidence for the crimes suspected should be found—and there is compelling evidence as it stands (for example, the machinations of Anthony Fauci). Let the chips fall where they may under judicial review. Get the matter before the Supreme Court and have them determine whether this is (as much as it can be) a settled matter. As it stands, it’s an open question—a question I want answered. So do you, if you believe in accountability and preventing a runaway executive.
As you know, I am skeptical of the presidential (as well as gubernatorial) pardon on principle. But if pardon power is to be preserved, then it must work within the framework of the law and rational principle, wherein our system requires specific a crime (corpus delicti) is identified. Those pardoned should have convictions to be set aside, since specifying crimes to be pardoned without a conviction obtained tarnishes the reputation of those pardoned. Whether Fauci committed any crimes, millions believe he did because Biden pardoned him. Of what? That’s left to our imagination—which is boundless.
It is entirely rational to ask: What is Biden hiding? We presume those he pardoned are guilty of something. What? We can’t know if the Supreme Court allows the pardon power to be used in this way. Biden’s autopen is a distraction. There is something much more fundamental to address here—not what crimes those Biden pardoned committed (although we need to know) but whether a president can cover up crime and corruption by preemptively pardoning those for whom no crime has been specified.
There’s more to this, however. In US law, once a person has received a full and unconditional (blanket) pardon for a specific crime or set of crimes (or in the Biden pardons not crime specified), he can no longer invoke the Fifth Amendment right against self-incrimination for those pardoned acts. The Fifth Amendment only protects individuals from being compelled to testify when their testimony could lead to criminal prosecution. If prosecution is no longer possible due to a pardon, there’s no risk of self-incrimination.
This principle was affirmed in Burdick v. United States (1915), where the Supreme Court held that accepting a pardon removes the legal jeopardy, and thus the basis for invoking the Fifth Amendment for the pardoned offenses. At the very least, those whom Biden pardon can be called as witnesses to testify in a case concerning their crimes.
freedom and reason 