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Counter-point- pardons are not a bug, but a feature, of governmental design.
The point of American governmental powers is not as a tool for angelic figures, but as a check against other branches. That it can be used to block investigations / prosecutions of 'legitimate' crimes is a merit, not evidence of failure, because 'I'm just cracking down on corruption' is an archetypical basis for political purges of political opponents. The checks and balances of government are far more concerned about the later- the abuse of judicial processes- than they are the former- the ability of guilty people to get off free.
The Pardon-power is an executive check against both the legislature (which could legislate unreasonable laws that none could fail to break, and then use said breaks arbitrarily to disqualify), but just as importantly the judiciary (whose power revolves around process conclusions). Just from a system design, if you want to remove a check on the executive against other branches, you are implicitly either replacing it with a new- and as to date not norms-established power- against the other branches, or you are refusing to replace it. Either of these are destablizing changes to a system.
In turn, the guardrails against veto abuse aren't just voters (note the lame-duck rush as opposed to the years before Biden lost the election), but inter-party and inter-branch politics. If the President, Congress, and Judiciary are on board with the same abuse, there's no particular limit (or need) for the veto regardless. The challenge comes when the President and Judiciary are at odds, and Congress is the wavering party. If Congress supports the President, the Judiciary is at a loss regardless, and the veto is just a means by which it is done. But if Congress opposes the President, the limitation on the veto is the limitation of the President's relationship with Congress- the president needs Congressional support for other things, and even outgoing presidents have political considerations.
In this week's context, the Pardon worked twice as a balancing function limiting the capacity to carry out and sustain politically motivated prosecutions. That mitigation can be a way to limit future politically-motivated prosecutions (Trump against Biden; more historically, the Nixon pardon), and mitigate past politically-motivated prosecutions (Biden against Jan 6 rioters, when the Jan 6 cases are contrasted against BLM / 2016 rioters). That you can view both of these (or neither of these) as 'actual' crimes does not change the politically charged nature of the prosecution (or potential prosecution) as viewed by substantial amounts of the public.
By contrast, limiting the ability of a President to grant clemency doesn't prevent the politically motivated prosecutions in the first place, but would make them harder to undo, which is less preventing future abuses as much as protecting them more if not even a change of governing party could reverse them.
Have pardons ever been realistically used as a political check against other branches like this? If I squinted I could maybe see something like Carter's pardoning of draft dodgers or Obama's pardoning of non-violent drug offenders, but neither of those really seem like they'd fit that well. I don't think it works that well as a check even if it had been. The real check the Executive has over the Legislative is the ability to dominate one party of the split chambers which has effectively rendered Congress inert. Kicking the can to pardons being punished by the President's relationship with Congress also doesn't work that well since, again, that implicitly relies on voters punishing politicians who don't do what they want. If they don't really punish the President, why would they be expected to punish Congress indirectly?
I disagree with the notion that the J6 protestors were politically prosecuted, at least insofar as participating in Trump's self-coup wasn't already political. The median sentence was 60 days, with those receiving substantially longer sentences mostly having engaged in violence. I don't like the framing of comparing it to BLM leniency, because two wrongs don't make a right. This isn't a prisoner's dilemma, it's just blatant hypocrisy. If anything, this will just make the situation worse as Democrats can now use this pardon to do another round of their own nonsense when they retake the White House at some point.
Jefferson pardoned everyone who had been charged under the Sedition Act. His party had taken power with a mandate to remove them, and I guess he was implementing his part.
I’m willing to bet that pardons were part of the normal political sausage-making that was the norm through…I don’t know when it fell apart. Reagan? Clinton?
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Yes, just now.
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