Gastonia, NC
Before anybody in this Forum declares a new scale, somebody should read the Nixon pardon, because I did and it is not what I remembered.
Ford’s proclamation of September 8, 1974 grants “a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”
Read that again with the Biden family instruments next to it. Full and unconditional. “May have committed.” A defined period rather than a defined offense. No specific crime named anywhere in the document. Issued before any charge existed.
That is the same structure. Not a cousin of it — the same structure, down to the phrasing. The eleven-year window on the Biden family pardons is longer than Nixon’s five and a half years, and it covers seven people rather than one. But the drafting innovation this Forum has spent three weeks describing was invented in 1974 and has been sitting in the record ever since.
I read copy for a living and I am not going to pretend a document says something it does not. If our argument depends on the claim that period-based preemptive clemency is new, the argument is dead the moment somebody pulls up Proclamation 4311.
So what actually distinguishes these two?
Ford went on television and explained himself at length. Then, five weeks later, he did something no sitting president has done before or since: he went to Capitol Hill and testified voluntarily before a House Judiciary subcommittee about why he had issued the pardon and whether any deal had been made. He sat and took questions under oath about his own act.
Biden issued a written statement of a few paragraphs and left the building.
That is the difference, and once you see it you cannot unsee it. Both men used an instrument that forgives an undescribed period. One of them submitted the decision to public examination immediately and personally. The other did not, and the disclaimer attached to his statement — that the pardons should not be mistaken as an acknowledgment that anyone did anything wrong — is the opposite of an explanation. It is a refusal to characterize the act at all.
Custom explains the calendar. Presidents have used the last week since the founding and always will. What is not custom is issuing a Ford-shaped instrument and declining to do the Ford-shaped accounting that made the original tolerable.
So the honest heading is neither of the two on offer. The scale is not new. The structure is not new. The absence of any public reckoning for it is what is new, and it is a smaller claim than the one this file’s consensus wanted, and it is the one that will survive somebody checking.
Owatonna, MN
Minnesota keeps two ledgers on this and the second one is missing an entry that changes the whole comparison.
The question names Clinton, Trump’s 2020–21 list, and Ford–Nixon. It omits the closest precedent in American history, and I want to spend my whole answer on it because I think it settles more of this argument than anything else available.
On Christmas Eve of 1992, George H.W. Bush — a defeated president with four weeks left — pardoned six men in the Iran-Contra matter. Caspar Weinberger, the former Secretary of Defense, whose trial was scheduled to begin less than two weeks later. Duane Clarridge, awaiting trial. Clair George, convicted three weeks earlier and awaiting sentencing. And Robert McFarlane, Elliott Abrams, and Alan Fiers, all of whom had already pleaded guilty.
Two of those men had not been tried. One had been convicted and not sentenced. Three had pleaded. It was, in other words, exactly the mix this file has been calling unprecedented: preemptive coverage of officials facing an ongoing investigation, issued by a departing president on a holiday, weeks before he left office.
And there is a fact about it that makes it more apposite rather than less. Bush was himself a subject of the independent counsel’s investigation. Weeks earlier, Lawrence Walsh’s office had obtained Weinberger’s contemporaneous notes, which recorded a January 1986 meeting at which the then–Vice President supported the arms-for-hostages exchange — contradicting Bush’s public account of his own knowledge. Weinberger’s trial would have put those notes and that account in front of a jury.
Walsh’s response on the day is worth quoting because this Forum has been reaching for language he already found. He said the pardons undermined the principle that no man is above the law, and that they demonstrated that powerful people with powerful allies can commit serious crimes in high office, deliberately abusing the public trust, without consequence. He said the Iran-Contra cover-up had now been completed.
I spent enough years in financial planning to know what it means when you find a comparable transaction you did not know about. It repricess everything.
So let me reprice. Is the Biden package a new scale?
On preemptiveness, no. Ford in 1974 and Bush in 1992 both did it, Bush while personally implicated in the matter he was closing.
On self-protection, no, and this is the hardest one for our side. Bush pardoned the man whose trial would have produced evidence about Bush. Clinton, on his last morning, pardoned Susan McDougal, convicted in an investigation whose ultimate subject was Clinton. Trump pardoned Flynn, Stone, Manafort, Papadopoulos, and van der Zwaan — every one of them convicted or charged in an investigation of Trump — and pardoned Steve Bannon on his last morning while Bannon was under federal indictment awaiting trial.
Every one of those is structurally what our side is accusing Biden of, and three different presidents from both parties did it across four decades.
On family, no. Clinton pardoned his half-brother the same morning he pardoned Marc Rich. Trump pardoned his son-in-law’s father.
What is left?
Two things, and I think they are real. The first is that Bush issued a proclamation explaining his reasons at length — he argued the defendants were patriots being prosecuted over policy differences, he named the matter, he made a case a citizen could evaluate and reject. Ford went further and testified before Congress. Biden issued a few paragraphs and left. The second is the disclaimer clause, which no previous package contains: a pardon accompanied by an assertion that there was nothing to pardon.
That is the honest finding. Not a new scale — a familiar scale, with the public accounting removed.
I would rather this Forum say that than say something bigger that the record will not carry. Walsh already made our argument in 1992 and nobody listened. The reason nobody listened is worth thinking about before we assume anybody will listen now.
Prescott Valley, AZ
Everybody uses the last week. That is custom. The question is whether anything about this package is genuinely new, and the way I would teach it is to put the documents side by side and take the names off.
Document A, 1974. Full and absolute pardon. One man. Covered period of five and a half years. Language: “has committed or may have committed or taken part in.” No offense named. No charges pending.
Document B, 1992. Six men, an ongoing investigation, two of them awaiting trial and one awaiting sentence. Issued on Christmas Eve by a president with four weeks left who was himself under investigation in the same matter.
Document C, 2001. A hundred and forty pardons on the last morning, including a fugitive who had never stood trial, the president’s own half-brother, and a woman convicted in an investigation of the president.
Document D, 2020–21. A hundred and forty on the last day, including an ally under federal indictment awaiting trial, plus five people convicted or charged in an investigation of the president himself, plus the president’s daughter’s father-in-law.
Document E, 2024–25. The president’s son, two live convictions plus an eleven-year window. Then a general, an agency head, a congressional committee, its staff, testifying police officers, and five relatives, on the last morning, over the same window.
Now ask a class which of those is the outlier and why.
They will not say E on preemptiveness, because A and D are preemptive. They will not say E on self-protection, because B, C, and D all involve pardons of people whose testimony bore on the pardoning president. They will not say E on family, because C and D have family in them.
What a careful class will notice is two things.
First, document E includes people against whom no allegation of any kind had ever been made — the police officers who testified about being assaulted. There is nothing like that in A through D. Every recipient in the earlier packages was accused of something by somebody. That is a genuine novelty and it is not the one anybody has been arguing about.
Second, A and B came with public reasoning. Ford went on television and then testified before a House subcommittee under oath about his own pardon, which no sitting president had done before or has done since. Bush issued a proclamation setting out an argument. E came with a few paragraphs and a sentence saying nobody had done anything wrong.
I taught for a long time and the lesson I would draw is not the dramatic one. The instrument has been used this way before, by both parties, including by a president closing an investigation that reached him personally. What has eroded is not the boundary on the power. It is the expectation that a president who uses it that way has to stand in public and account for it.
That is a smaller claim and a truer one, and it has the advantage that a student can check every part of it.
Dayton, OH
A plant that always ships extra on the last shift is running a custom. The question is whether this shift did something the plant has not done before, and I went and pulled the prior run records, because that is what you do before you declare a process change.
The records do not support the change.
Take the 2020–21 list, since it is the one our side is least likely to have examined closely. On the last morning of that administration, Steve Bannon received a full pardon while under federal indictment in the Southern District of New York, awaiting trial on charges of defrauding donors to a border wall fundraising effort. No verdict. No plea. A pardon issued to a close political ally with a trial pending.
That is preemptive coverage of an ally in an active prosecution, and it is the same category of act this Forum has spent a month calling unprecedented.
Now the more structurally significant set. Michael Flynn, pardoned in November 2020, and the pardon was drafted broadly enough to cover not just the offense he had pleaded to but any offenses arising from the facts in the information and from the special counsel’s investigation. Roger Stone, convicted of lying to Congress in a manner that protected the president, commuted and then pardoned. Paul Manafort. George Papadopoulos. Alex van der Zwaan.
Every one of those men was convicted or charged in an investigation of the president who pardoned them.
In process terms, that is a control being disabled by the operator whose work it was inspecting. If our objection to the Biden package is that a president used clemency on people whose exposure ran back toward him, the same objection applies to that list with equal force, and it applied four years earlier.
Then go back further. Bush in 1992, pardoning the Secretary of Defense whose trial would have put in front of a jury contemporaneous notes contradicting Bush’s own account of what he knew. Clinton in 2001, pardoning Susan McDougal, convicted in an investigation whose ultimate subject was Clinton.
Four presidents. Both parties. Four decades. Same structure.
So the process finding is that this is not a new scale. It is a well-established practice being performed at somewhat greater volume in the family category, and anybody who tells you otherwise has not pulled the run records.
Here is what I would still flag as a genuine specification change, because there is one and it is narrower than the claim we have been making.
Every earlier package came with a stated rationale that identified the matter. Ford named Watergate and explained his reasoning on television, then testified before Congress about it. Bush issued a proclamation describing Iran-Contra and arguing that the prosecutions criminalized policy differences — an argument a citizen could evaluate and reject. Trump’s pardon announcements described the recipients and gave reasons, however self-serving.
The January 20 package came with a statement asserting that the recipients had been threatened and that the pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing.
That last clause is the process change. Every prior instrument in this category conceded that something had happened and argued about how to treat it. This one grants the remedy and denies the premise, which means there is no proposition on the table to evaluate. You cannot audit a nonconformance report whose defect field says “no defect.”
That is the finding I would file. Not a new scale. A familiar operation performed without the accompanying documentation, and it is the documentation that made the earlier ones arguable rather than merely done.
Wheeling, WV
Last-week lists are custom and I have said so all along. What I did not know until this week is how much company this package has, and I would rather put it on the table myself than have it thrown at me.
Take Clinton’s last morning in 2001. A hundred and forty pardons in a few hours. Marc Rich, a fugitive who had been indicted in 1983 and had never stood trial, living in Switzerland, whose ex-wife had given substantial money to the president’s party and his library. His own half-brother. And Susan McDougal, convicted in the Whitewater investigation — an investigation whose actual subject was the man signing the pardon.
That last one is the same shape as everything we have been objecting to. A president used clemency on a person whose prosecution ran back toward him, on the last morning, without explanation.
I spent thirty years in grievances and the rule that never failed me is that you check whether your own side has filed the same complaint before. If it has, you either explain the difference or you sit down.
So let me try to explain the difference, and I want to be honest that it comes out smaller than I expected.
Clinton’s list was full of people you could name and fight about. So was Trump’s. Every recipient was accused of something specific by somebody, and a citizen could look up the case and form a view. The scandal in 2001 was about who got a pardon and why, and that is an argument the public can have.
The January 20 list contains people against whom nothing has ever been alleged. Not a weak allegation — none. The Capitol Police officers who testified about being beaten were pardoned. There is no case to look up. There is nothing to form a view about.
That is genuinely different and it is different in a direction our side has not been describing. It is not that this package covers more wrongdoing. It is that it covers people about whom no wrongdoing was ever asserted, which means the instrument was being used for something other than disposing of a legal problem.
What it was being used for, on the face of the documents, is insurance against a threatened Justice Department. Whether that is better or worse than Clinton selling access to the pardon office is a question I will let readers settle for themselves. It is certainly a different thing.
The other difference, and I think the one that lasts, is the accounting. Ford explained himself on television and then went to Capitol Hill and testified about it under oath. That is a president submitting his own act to examination, and nobody has done it since. Bush at least published a proclamation making a case. Clinton wrote a newspaper piece defending the Rich pardon a month later, badly, but he wrote one.
This package got a few paragraphs and a plane to Delaware.
So: custom on the calendar, custom on the preemptiveness, custom on the family, and something new in the composition and in the silence. That is the honest ledger and it is smaller than the one we started with. I would rather carry a small true ledger than a big one that somebody knocks over.
Tyler, TX
East Texas has seen last-day favors. What I wanted to know this week is whether this package is a different product or the same product in a bigger box, and the honest answer is mostly the same product.
I write commercial insurance and the discipline is comparables. So here are the comparables, and I am going to give them straight even though several of them cut against me.
Ford, 1974: preemptive, period-based, “may have committed,” no offense named, one man, no charges pending. Same structure as the family instruments here, drafted fifty years earlier.
Bush, 1992: six Iran-Contra figures on Christmas Eve, two awaiting trial, issued by a president personally implicated in the matter, weeks before he left. The independent counsel said publicly that it completed a cover-up and undermined the principle that no man is above the law.
Clinton, 2001: a hundred and forty on the last morning, including a fugitive who had never been tried, his own half-brother, and a woman convicted in an investigation of Clinton.
Trump, 2020–21: a hundred and forty on the last day, including an ally under indictment awaiting trial, five people convicted or charged in an investigation of Trump himself, and his daughter’s father-in-law.
Now run the reversal test on the claim rather than on the conduct, which is the version people usually skip.
If a Republican correspondent in 1993 had said that Bush’s Christmas Eve pardons were ordinary end-of-term custom and nothing to see, would I have accepted it? No. I would have said a departing president had shut down a prosecution that was heading toward his own account of events, and I would have been right.
If a Democratic correspondent in 2021 had said Bannon’s pre-trial pardon and the Mueller-defendant pardons were ordinary custom, would I have accepted it? No.
So the underwriting question is whether Biden’s package is a new risk class or a claim in an existing one, and the answer is that it is a claim in an existing class. The class is: departing president uses clemency on people whose legal jeopardy connects back to him or to his political interest, without meaningful public accounting. That class has entries from 1974, 1992, 2001, and 2021, filed by both parties.
Pricing a claim as a new risk class when it belongs to an existing one is how you get the reserve wrong, and it is how our side keeps getting surprised.
What I would still call genuinely new is two line items and I would confine the argument to them.
One: recipients against whom nothing was ever alleged. That does not appear in any prior package. Every earlier beneficiary had a case number or an indictment or at least a public accusation. Pardoning the police officers who testified is outside the entire history of the instrument.
Two: the disclaimer. No previous president has issued a pardon accompanied by a statement that the recipients did nothing wrong. In insurance terms that is paying a claim while denying that a loss occurred, which is not a settlement. It is a transfer, and it is unauditable by design.
Those two items are real and they are enough. The rest is custom, and calling custom an invention is how you lose the argument to the first person with a search engine.
Long Island, NY
I draft precedent memoranda and the discipline is to state the closest authority against your position before you state your own. So let me do that, because on this question the closest authority is very close indeed.
Proclamation 4311, September 8, 1974. Gerald Ford granted Richard Nixon “a full, free, and absolute pardon… for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.” Preemptive. Period-based. “May have committed.” No offense specified.
That is the drafting template. The Biden family instruments follow it exactly, with a longer window and more parties. Anybody in this Forum arguing that period-based preemptive clemency is a structural innovation is arguing against a document that has been the most famous pardon in American history for fifty years.
Second authority. December 24, 1992. George H.W. Bush pardoned six Iran-Contra figures, including Caspar Weinberger less than two weeks before his trial was to begin and Duane Clarridge before his trial had started. Bush was a subject of the same investigation, and the independent counsel had recently obtained Weinberger’s notes bearing on Bush’s own account of what he knew. Lawrence Walsh said the pardons undermined the principle that no man is above the law and completed a cover-up.
Third and fourth. Clinton in 2001 pardoned Susan McDougal, convicted in an investigation of Clinton. Trump in 2020–21 pardoned Flynn, Stone, Manafort, Papadopoulos and van der Zwaan, all of whom were convicted or charged in an investigation of Trump, and pardoned Steve Bannon on the last morning while Bannon was under indictment awaiting trial.
So on the four features this Forum has treated as novel — preemptive coverage, period-based scope, family beneficiaries, and self-interested effect — every one has direct precedent, most of them multiple, from presidents of both parties.
Now what actually is new, stated as a memorandum would state it.
First: recipients with no allegation against them. The Capitol Police and Metropolitan Police officers who testified before the January 6 committee received full and unconditional pardons. No charge, no referral, no investigation, no public accusation by anyone at any time. I can find no analogue anywhere in the clemency record. Every prior beneficiary of a presidential pardon, including Nixon, was the subject of at least an articulated accusation. This is an instrument issued to witnesses against a prosecution that had not been announced, let alone brought.
Second: the disclaimer. The accompanying statement provides that the pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt. That language is drafted against Burdick v. United States, which holds that a pardon carries an imputation of guilt and that acceptance confesses it. No prior package contains such a clause. Whether a presidential statement can alter the legal effect the Supreme Court has ascribed to the instrument is unresolved and, in my view, doubtful.
Third: the absence of accounting. Ford explained the Nixon pardon in a televised address and then testified voluntarily before a House Judiciary subcommittee on October 17, 1974 — the only sitting president ever to appear before Congress to answer questions about his own conduct. Bush issued a proclamation setting out a reasoned argument. Clinton published a defense of the Rich pardon. The January 20 package was accompanied by two short statements and no appearance of any kind.
That is the memorandum. The object is not new; the scale is at the high end of a range that already existed; the composition includes something without precedent; and the practice of standing behind the act in public has been abandoned.
I would file it under that heading rather than under “new scale,” because the new-scale claim invites a rebuttal that will succeed and this one does not.
Cheyenne, WY
Last week is custom. That much I said before and I still say. What I want to do is post the prior entries properly, because I had the account balance wrong.
- One man, no charges, a five-and-a-half-year window, “may have committed,” no offense named. That is the same instrument the Biden family got, drafted by Ford.
- Six men on Christmas Eve, two of them waiting on trials, from a president with four weeks left who was himself under investigation in the same matter, weeks after the prosecutor found notes bearing on his own account. The independent counsel said flatly that it completed a cover-up.
- A hundred and forty in one morning. A fugitive who never stood trial. The president’s half-brother. A woman convicted in an investigation of the president.
- A hundred and forty on the last day. An ally under indictment awaiting trial. Five people convicted or charged in the investigation of the man signing. A son-in-law’s father.
I keep books, and when four prior entries in an account look like the one you are calling unprecedented, the account is not unprecedented. It is established practice and you were not looking.
So I am striking “new scale” from my own ledger and posting what actually belongs there.
Two entries survive. The first is that this package covers people nobody ever accused of anything. The police officers who testified about being beaten at the Capitol were pardoned. There is no case, no referral, no complaint. Every prior recipient in every prior package had at minimum a public accusation attached to his name. That entry has no match in the record.
The second is the note attached to the instrument saying no one did anything wrong. Ford did not say that. Bush did not say that; he argued at length that his men had been prosecuted for policy disagreements, which is a claim you can dispute. Clinton did not say it. This one grants a remedy and denies there was anything to remedy, which leaves nothing on the page to argue with.
And the third thing, which is not an entry so much as a missing one. Ford explained himself on television and then went and testified before a House subcommittee under oath about his own pardon. No president has done that before or since. Bush wrote a proclamation with reasons in it. This came with two short statements and a departure.
That is the whole of what changed. Not the power, not the timing, not the preemption, not the family. The accounting. Accounting is what made the earlier ones survivable, and accounting is what nobody bothered with this time. Custom on the clock, custom on the instrument, new only in who was covered and in the silence afterward. Silence is the entry I would carry forward.
