With less than 20 minutes remaining in his presidency, former president Biden’s White House announced his pardoning of five members of his family for any federal crimes they may have committed. And in a statement giving his reasons for doing so, Mr. Biden said that while he did not think they committed any crimes, he cited his fear that lawfare – the exploitation of the legal system to damage or delegitimize opponents – would be used against them as part of a continuing vendetta against him by his political opponents.
[Biden had earlier in the day issued preemptive pardons for prominent Trump critics Mark Milley, Dr. Anthony Fauci and members of Congress who served on the committee investigating the Jan. 6, 2021 attack on the Capitol.]
In the light of the self-evident, almost decades long Democrat campaign of conjuring up legal cases against Donald Trump, several of his family members and colleagues, that concern seems rather rich. But more importantly, Mr. Biden recently had an opportunity to signal at least a lawfare truce by declining to release Special Counsel Jack Smith’s one-sided, sharply condemnatory Trump report. But unfortunately, he opted for its release despite the legitimate reasons not to do so. And therein lay an important tale.
So, when Mr. Biden issued his eleventh-hour pardon, he said this:
“My family has been subjected to unrelenting attacks and threats, motivated solely by a desire to hurt me – the worst kind of partisan politics. Unfortunately, I have no reason to believe these attacks will end…
“I believe in the rule of law, and I am optimistic that the strength of our legal institutions will ultimately prevail over politics. But baseless and politically motivated investigations wreak havoc on the lives, safety and financial security of targeted individuals and their families. Even when individuals have done nothing wrong and will ultimately be exonerated, the mere fact of being investigated or prosecuted can irreparably damage their reputations and finances.”
Yet last week, his Justice Department’s Special Counsel Jack Smith, assigned to prosecute Donald Trump over Jan. 6 election interference charges, issued a report outlining his case against Trump. He was unable to proceed to trial and attempt to prove his case against Trump because of the DOJ rules that a sitting president cannot be prosecuted. While a report is authorized under federal law in these circumstances, one is not required to be issued.
And it is noteworthy that such reports are by definition, one-sided presentations by a prosecutor, never proven to the satisfaction of an impartial jury. Those charged never had an opportunity to challenge allegations, evidence or proposed witnesses.
In fact, as legal commentator Prof. Jonathan Turley has written, much of the report was vintage Smith. Thus, he dismisses legal precedent inconsistent with his own spin. And the report is replete with conclusory evidence such as citing how Donald Trump said “fight” ten times in his Jan.6, 2021 speech – he also told the audience to protest “peacefully.” The report also gives short shrift to recent Supreme Court decisions on immunity and obstruction of justice which undermine, if not fatally compromise, Smith’s cases against Trump.
And there is more.
Not only did Smith cut corners and base his report on some seemingly outdated precedent, he also threw circumspection to the wind and opined that if permitted, he would have “obtain[ed] and sustain[ed] a conviction at trial.
We had rather thought that in America the innocence of the accused is presumed until it is unanimously proven otherwise. If former president Joe Biden was seriously interested in our country moving away from reliance on dubious one-sided accusations, he would have directed Mr. Smith to hold his fire.
