Recipe for Chaos

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Dr. Malcolm Cross

Through their exercise of their pardon powers, Presidents Biden and Trump have both undermined the rule of law and increased the chances for lawlessness and resulting chaos.  The Constitution should be amended to reduce the presidential pardon power and thereby reduce the potential damage resulting from its abuse.

Perhaps Biden’s most egregious action was to commute the sentence of Leonard Peltier from life imprisonment to indefinite house arrest.  Peltier, a Native American rights activist, had been convicted of the murder of two FBI agents in 1975 who had come onto a reservation searching for another fugitive.  For decades leftist activists have campaigned for clemency, citing alleged ambiguities in the evidence against him in the FBI murder case.  The most recent advocates for clemency have included Senators Bernie Sanders and Elizabeth Warren, as well as Representative AOC.  But as FBI Director Christopher Ray has noted, Peltier’s conviction was reviewed and upheld by at least 22 federal judges over 45 years.  Presidents Clinton and Obama both denied clemency, deeming Peltier’s sentence and the proceedings leading to it were appropriate.  Nonetheless, President Biden granted Peltier clemency anyway.  Peltier’s murdered victims got none.

But one cannot criticize Biden and the Democrats for the pardon of Peltier without noting the equally great insult President Trump, with apparent Republican acceptance, has administered to law enforcement officers with his pardons of the convicted January 6 protesters.  To be sure, there were, among the approximately 1500 convicted protesters, some who may have deserved some form of clemency.  Those who protested illegally but nonviolently may have deserved a review of their cases, especially if they received excessive sentences for nonviolent actions.  But as President Trump’s Vice President and Attorney General both said before President Trump acted, those who committed violence against the police deserved no such consideration.  While several GOP members of Congress have criticized the action, most GOP officials (including now both the Vice President and the Attorney General) seem to be remaining silent, thereby helping to weaken any Republican claim to being the law and order party, and diminishing its credibility as a critic of Democratic initiatives to “defund the police” or take other steps inimical to law enforcement.

Less dramatic but perhaps more ominous in the long run was President Biden’s preemptive pardons for anything that family members and several of President Trump’s critics, notably retired General Mark Milley and former Representative Liz Cheney, may have committed.  To be certain, Trump’s loose talk of prosecuting “the Biden Crime Family,” as well as Milley, Cheney, or other critics, in the absence of evidence of potential crimes, was irresponsible and incompatible with devotion to the rule of law based on due process.  But in issuing these preemptive pardons, Biden has set a precedent by which Trump or some future president could preemptively pardon personal associates or governmental subordinates, thereby allowing them to do whatever they wanted, legal or not, secure in the knowledge they would not be prosecuted.  It’s bad enough that Presidents have been granted widespread immunity.  Neither they nor their associates should be allowed to act with impunity as well.  The threat to law and order should be obvious.

The presidential pardon power is currently enshrined in the Constitution, and cannot be limited without constitutional amendment. A formal amendment must be proposed by either a two-thirds vote of both houses of Congress or by a constitutional convention called by Congress at the demand of two-thirds of the states.  Once an amendment has been proposed by either of these methods, it must be approved by three- fourths of the states to be adopted.

The authors of our Constitution, believing it should not be amended lightly or frivolously, deliberately made the amendment process arduous and difficult to complete.  Thus only twenty seven formal amendments have been added.  But if future presidents continue to exercise the unlimited pardon powers the Constitution has supplied to Presidents Biden and Trump and their predecessors, and if they follow the examples Biden and Trump have set, they may well undermine the effectiveness of offices and officials dedicated to law enforcement, and create an environment whereby the President and his associates can do anything they want, no matter how harmful or injurious to rights and liberties their actions may be.  The threats of criminality and chaos more than justify the effort needed to reduce the presidential pardon power through constitutional means.  


Malcolm L. Cross has lived in Stephenville since 1987 and taught politics and government at Tarleton for 36 years, retiring in 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990-2024).  He was Mayor pro-tem of Stephenville from 2008 to 2014.  He has served on the Board of Directors of the Stephenville
Economic Development Authority since 2018 and as chair of the Erath County Appraisal District’s Appraisal Review Board since 2015.  He is also a member of the Stephenville Rotary Club, the Board of Vestry of St. Luke’s Episcopal Church, and the Executive Committee of the Boy Scouts’ Pecan Valley District.  Views expressed in this column are his and do not reflect those of The Flash as a whole.

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