We are living in times in which Democrats will take ever more extreme measures — no matter how bad they look — to get into and remain in power, as well as avoid punishment for their excesses while there. 

As Jonathan Tobin writes in The Federalist, “[A]nyone who imagines that the charge of hypocrisy will stop Democrats from doing anything they can to stop Trump from taking office hasn’t been paying attention to American politics for the last eight years.”

Why stop at hypocrisy? 

Previously, I warned that if the timing of the impeachment process is right, a sufficient number of Democrats might join the Republicans in the Senate vote to remove Joe Biden from office so he can be replaced with minimal hassle by a more preferable candidate for president such as Michelle Obama.  While some may think that is farfetched, this scenario becomes more likely if Democrat party apparatchiks decide they want Joe gone but he refuses to step down willingly.  Of course, warning about it makes this scenario less likely.

And then there’s pardons.  Before the end of, as well as beyond, Donald Trump’s presidency, the liberal press discussed whether Donald Trump could (have) issue(d) a secret self-pardon, as well as secret pardons to others (to be kept hidden to avoid embarrassment but then whipped out like a get-out-of-jail-free card in case of trouble) for their roles in the J6 “insurrection.”  Article II Section 2 of the Constitution says only the following:

The President…shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

(What’s with all the capitals?)  The consensus of The Hill, Time and others is that preemptive; non-specific; secret; self-; and secret self-pardons all are allowed.  Gerald Ford’s pardon of Richard Nixon and Trump’s pardon of Michael Flynn both were preemptive and non-specific.  Ronald Reagan issued pardons not revealed until two weeks later.  Secret pardons would work as long as they can be proved later with witnesses or signatures.  Newsweek questions whether self-pardons and secret pardons would hold up to challenges as being contrary to the intent of the framers (a self-pardon because the president would effectively be his own judge, and secret pardons because they would deter prosecutors from ever investigating and pursuing charges against All the President’s Men), but admits the language of the Constitution does not explicitly prohibit them. 

Newsweek also cites legal scholars who believe another exception besides impeachment might be if the pardon is part of a crime or cover-up of one, which could be obstruction of justice. 

I know what you’re thinking: like Joe Biden pardoning son Hunter to hide his own corruption.  Get real; in the insane world we live in, think Trump for pardoning Flynn and George Papadopoulos to hide his being a Russian spy.  Now you see why a strict interpretation of the Constitution is best.

So it looks like Joe Biden could issue secret pardons to himself and Hunter, to be used later if needed.  Of course, presidential pardons work only for federal crimes.  Currently, Hunter is being charged with federal crimes only, including tax evasion amounting to over $1.4 million in federal taxes owed over the period 2016-2019, as spelled out in federal court in California, where Hunter had residence for part of that interval, and apparently Delaware before that. 

It is conceivable (if not likely) that even after a presidential pardon, these individual states could charge him with tax evasion on the state taxes owed, which in California could result in a prison sentence of up to three years.  Things get messy here, because pardon power, requirements and procedures vary widely by state.  In California, pardons come only after the sentence is served, although the governor can issue a commutation of sentence.  So it’s not as if Gov. Gavin Newsom could preemptively pardon Hunter for state crimes over dinner at the French Laundry.  In Delaware, “The governor cannot grant a pardon or commutation in the absence of an affirmative recommendation of a majority of the Board of Pardons after a full hearing.”

The Democrats would probably take less heat if old, demented Joe pardoned himself and son (and brother, and daughter-in-law, and …) than be pardoned by an interim or permanent Democrat successor (as per the impeachment scenario above).  Even if Biden wins reelection, it seems he still can be impeached after a self-pardon for the same offense. 

I almost wish Trump would have issued a self-pardon, possibly prompting its legality to be decided by SCOTUS.  If SCOTUS would have ruled it illegal, then Democrat presidents would be barred from using it as well.  On second thought, given all the lawfare, Trump might need a very public self-pardon on Jan. 20, 2025.

W.A. Eliot is a pseudonym.

Image: Pixabay / Pixabay License