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- [00:00]
Ryan Reynolds
Ryan Reynolds here from Mint Mobile with.
- [00:02]
Isaac Saul
A message for everyone paying Big wireless Way too much. Please, for the love of everything good in this world, stop with Mint.
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Ryan Reynolds
You can get premium wireless for just $15 a month. Of course, if you enjoy overpaying. No judgments.
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Isaac Saul
But that's weird. Okay, one judgment anyway. Give it a try@mintmobile.com Switch upfront payment.
- [00:22]
Jacob Sullum
Of $45 for three month plan equivalent to $15 per month required intro rate first three months only, then full price plan options available, taxes and fees extra. See full terms@mintmobile.com if you haven't noticed, it's winter and now more than ever, I'm in need of a little treat. That's why I joined First Leaf, a wine club that delivers my favorite types of wine right to my door. Because there's really no better treat than a glass of delicious red, white or so go ahead and treat yourself to world class wines from First Leaf. Go to tryfirstleaf.com winter to get your first six bottles for just $44.95 with free shipping. That's T R Y F I R-S-T L E A F.com winter Hey prime.
- [01:01]
Isaac Saul
Members, Are you tired of ads interfering with your favorite podcasts? Good news. With Amazon Music, you have access to the largest catalog of ad free top podcasts included with your prime membership. To start listening, download the Amazon Music app for free or go to Amazon.com ad freepodcasts that's Amazon.com adfreepodcasts to catch up on the latest episodes, we without the ads.
- [01:33]
Jacob Sullum
From Executive producer Isaac Saul, this is Tangle.
- [01:47]
Ryan Reynolds
Good morning, good afternoon, and good evening and welcome to the Tangle Podcast, a place where you get views from across the political spectrum, some independent thinking, and a little bit of our take. I am your host, Editor Will Kaback, wishing you a happy President's Day. We're off from our normal newsletter today, but we'll be back in your inbox tomorrow around noon Eastern and a little bit later in the afternoon for the podcast. However, today we have something really special that we're excited to share with the Tangle audience. That is a contributed piece from Reason editor Jacob Sullim, and for a little bit of background on how this piece came to be. One of our main goals headed into 2025 was to solicit some contributions from writers across the political spectrum who aren't members of T staff but who we cite in the newsletter and think are really insightful writers and thinkers about animating issues in US Politics. So when we started to think about who would be a great person to kick this contributor series off. Jacob Sullum is somebody who came to mind. You may recognize his name from past editions, but for just a little bit of who he is. He's a senior editor at Reason and a nationally syndicated columnist. He's also an award winning journalist who's covered issues like drug policy, public health, gun control, civil liberties, and criminal justice for more than three decades. He's the author of two books, one saying yes in Defense of Drug Use and the second for your own the Anti Smoking Crusade and the Tyranny of Public Health. He's a syndicated column distributed by Creator Syndicate and you might have seen him in the New York Post, the Chicago Sun Times, Los Angeles Daily News, Wall Street Journal, USA Today, New York Times, you name it. He's been all over the place and we love citing him in Tangled because we think he has some really deep and interesting observations about some of the biggest issues that we write about. When we approached him about potentially writing a piece, he said he was interested in the idea of presidential pardon power and some of the clemency actions taken by former President Biden and President Trump at the end and beginning of their respective terms. Now, presidential clemency power may not be top of mind at the moment, but I think that his essay speaks to some really interesting constitutional questions and questions about how presidents have evolved in their use of this very unique executive authority in recent years. Salem looks back at kind of the original historical purpose of this power and then how Biden and Trump each applied it for aims that may not have been in line with what the framers wanted. So without further ado, here's my reading of Jacob Solem's piece, the first in Tangle's 2025 contributor series. Biden and Trump show us the Promise and Peril of President Clemency by Jacob Sullum during his 2020 campaign, Joe Biden said he would, quote, use the president's clemency power to secure the release of individuals facing unduly long sentences for certain nonviolent and drug crimes, end quote. He ultimately delivered on that promise in a big way, commuting 4,165 sentences by the end of his term. That total far exceeded the previous record set by President Barack Obama, who granted 1,715 commutations during his 2024 presidential run. Donald Trump said he would free Silk Road founder Ross Ulbricht, who had received a life sentence for creating a website that connected drug buyers with drug sellers. Quote, he's already served 11 years, Trump said. We're going to get him home, end quote. Like Biden, Trump kept his promise, granting Ulbricht a full and unconditional pardon on the second day of his second term. Anyone who questions long prison sentences for nonviolent drug offenders should recognize these actions as appropriate uses of presidential Clemenc aimed at mitigating what each executive sees as an injustice caused by draconian criminal laws. However, Biden and Trump have also shown that presidents can abuse clemency in service of their personal interests. Biden did that on the way out the door when he granted preemptive pardons to his relatives and allies. Trump did it hours later when he approved blanket clemency for nearly 1,600 of his most enthusiastic supporters, all of whom had been charged with crimes related to the January 6, 2021, riot at the US Capitol. Neither Biden nor Trump abused the Constitution through their grants of clemency. Instead, they undermined the rule of law that the framers seem to have had in mind when they granted it, an abuse immune from legal penalties but still very much subject to contemporary criticism and the judgment of history. And if presidents worried more about such consequences, they might be a bit more careful in exercising one of their broadest powers. Before going further, it's worth spelling out how Biden and Trump's actions are indeed legal and proper. The Constitution empowers the president to, quote, grant reprieves and pardons for offenses against the United States, except in cases of impeachment, end quote. That clause only includes two explicit restrictions. Presidential clemency applies only to federal crimes, and it cannot be used to override congressional impeachments. The Supreme Court inferred a third limit in the 1866 case Ex parte Garland, saying that clemency power, quote, extends to every offense known to the law and may be exercised at any time after it's commissioned, which rules out pardons for future crimes. But with those three exceptions, the clemency power is usually described as plenary, meaning it is absolute and cannot be second guessed by anyone else. Some legal scholars argue that further limits on clemency can be inferred from other parts of the Constitution, common law principles or criminal statutes enacted by cops Congress. Those limits might, for example, include self pardons or clemency in exchange for bribes. But even those arguable exceptions are not broad enough to exclude what Biden and Trump did from legality. Instead of just determining their constitutionality, it is more instructive to judge acts of clemency based on the original rationale for empowering presidents to block or mitigate criminal penalties. In 1788, Alexander Hamilton explained why, quote, the benign prerogative of pardoning should be as little as possible fettered or embarrassed terrorist, he said, quote, the criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. In other words, pardons allow someone in our system to make fair and merciful exceptions. Why entrust this power to one official? Well, hamilton wrote, as the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would most be ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit objective of its vengeance. End quote. Commutations for nonviolent drug offenders, a category of criminal unknown to Hamilton and his contemporaries, certainly seem like, quote, mitigation of the rigor of the law aimed at alleviating excessively cruel penalties. In Biden's case, they also look like partial penance for his long record of supporting harsh drug laws. Trump slammed that record during his 2020 and 2024 campaigns, faulting Biden for championing legislation that had disproportionately hurt African Americans. For his part, Trump commuted more than 60 drug sentences during his first term, starting with Alice Marie Johnson, a first time offender who had received a life sentence for participating in a Memphis cocaine trafficking operation. Trump highlighted Johnson's case during his 2019 State of the Union address, in a 2020 Super bowl ad, and at the 2020 Republican National Convention where Johnson gave a grateful speech. Quote, you have many people like Mrs. Johnson, Trump told Fox News in 2018. There are people in jail for really long terms, end quote. The solution, he added, had to go beyond clemency. Quote, there has to be a reform because it's very unfair right now, he said. It's very unfair to African Americans and it's very unfair to everybody, end quote. True to his word, Trump supported the First Step Act, a package of criminal justice reforms that he signed into law at the end of 2018. We'll be right back after this quick break. Work management platforms. Ugh. Endless onboarding IT bottlenecks, admin requests. But what if things were different? Monday.com is different. No lengthy onboarding, beautiful reports in minutes, custom workflows you can build on your own. Easy to use, prompt free AI. Huh? Turns out you can love a work management platform Monday.com the first work platform you'll love to use.
- [10:48]
Isaac Saul
Hey prime members, are you tired of ads interfering with your favorite podcasts? Good news. With Amazon Music, you have access to the largest catalog of ad free top podcasts included with your prime membership. To start listening, download the Amazon Music app for free or go to Amazon.com adfreepodcasts that's Amazon.com ad freepodcasts to catch up on the latest episodes without the ads.
- [11:22]
Ryan Reynolds
Now Trump's sincerity on this issue is open to question. He embraced sentencing reform based on the advice of his son in law, Jared Kushner, but later complained that he did not reap the political benefit he expected for it, even as Trump decried very unfair drug penalties. He praised Philippine President Rodrigo Duterte, who likened himself to Adolf Hitler while urging the murder of drug users, something Trump has also repeatedly recommended. Trump had difficulty reconciling that contradiction, and his ambivalence may have helped explain why his commutation total of 94 paled next to Obama's or Biden's. Although still an improvement over his Republican predecessors, George w. Bush only 11, George H.W. bush only three, and Ronald Reagan 13, Biden and Trump showed they could use that benign prerogative of mercy in a way that Hamilton might have approved. The same cannot be said of Biden's clemency for members of his own family, which began with his Dec. 1 pardon for his son Hunter. Biden had been convicted of federal tax and firearm felonies, and he was about to be sentenced for those crimes. His father had repeatedly said he would not intervene in those cases, but he reneged on his promise, claiming Hunter was a victim of politically motivated prosecution. That charge was puzzling, since David Weiss, the special counsel who brought both cases, had been appointed by Biden's own attorney general. Biden argued that Hunter had been, quote, unfairly and, quote, selectively prosecuted because he was the president's son. Biden said it was, quote, clear that, quote, Hunter was treated differently from similarly situated defendants, adding that, quote, the charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election, end quote. Even if Biden was wrong and Hunter had been prosecuted dispassionately and fairly, that does not necessarily mean that Hunter was, quote, a fit object of the law's vengeance. As Hamilton put it, the gun charges at least were based on conduct that never should have been criminalized to begin with. Under the law, it is a felony for quote, an unlawful user of any controlled substance to receive or possess a firearm. Hunter, an admitted crack user, violated that law by purchasing a revolver from a Wilmington, Delaware gun shop in 2018. He also violated two other laws by falsely denying his drug use on the form that you have to complete when you buy a gun from a federally licensed dealer. Now, this law is not limited to crack addicts. It also encompasses, for example, cannabis consumers, even if they live in a state where marijuana is legal and anyone who takes a medication prescribed for another person, such as someone who uses a relative's leftover Vicodin after suffering a back injury. The law does not distinguish between someone who handles guns while impaired or only when stone cold sober. That policy, which is only a step removed from a blanket ban on gun possession by anyone who drinks alcohol, makes little sense, and several federal courts have deemed those prosecutions under the law inconsistent with the Second Amendment. Hunter Biden tried that argument, and the judge overseeing his case ruled that he would have to wait until after he was convicted to use it. So Biden would have had a good reason to want to extend clemency to his son. Yet Joe Biden enthusiastically supports the law that his son violated, which his administration stubbornly defended against constitutional challenges by marijuana users. Biden even signed a law that increased the maximum sentence for his son's crime from 10 to 15 years and created another potential charge likewise punishable by up to 15 years in prison for drug users who obtained guns. All told, someone who did what Hunter did could face combined maximum penalties of nearly half a century under the current law. Biden seems to think that a drug user who buys a gun is committing a grave crime that merits a stiff prison sentence except when his son does. Is true that violations of this law are rarely prosecuted, although survey data on drug use and gun ownership suggests that potential defendants number in the tens of millions. The Justice Department prosecuted an average of just 120 such cases a year from fiscal year 2008 to fiscal year 2017. But people who are unlucky enough to be caught can suffer severe punishment in a case where a federal appeals court overturned a conviction. Under this law, a gun owning marijuana user was sentenced to nearly four years in prison. Biden also complained that David Weiss threw the book at Hunter after a DOJ plea deal fell apart. Although Weiss initially brought a single charge that he was prepared to drop once Hunter had completed a diversion program, he added two more charges after Hunter insisted on going to trial, raising his potential sentence from 0 to 25 years. That sort of a hefty quote trial penalty which coerces defendants into surrendering their Sixth Amendment rights is indeed troubling. But unfortunately it is par for the course in a criminal justice system where nearly all convictions result from guilty pleas. Biden's pardon for Hunter, in short, featured several shades of hypocrisy, which the president justified by claiming the charges were driven by politics, sounding very much like Trump, who claimed every civil and criminal case against him was invalid for similar reasons. And to guard against future charges against his son. Under the incoming Trump administration, Biden's pardon not only spared Hunter sentencing on the gun and tax charges, but also barred his prosecution for any federal crimes he may have committed. From January 1, 2014, through December 1, 2024. Biden took the same sweeping approach and invoked the same excuse when he pardoned five other relatives on January 20th. QUOTE My family has been subject to unrelenting attacks and threats motivated solely by a desire to hurt me, the worst kind of partisan politics, he said. Unfortunately, I have no reason to believe these attacks will end. Biden had in mind Trump's repeated threats to investigate the entire Biden quote crime family based on vague suspicions of corrupt corruption. But as a result of Biden's pardons, those allegations will never be fleshed out or tested by investigators, prosecutors, judges or jurors. While Trump's claims may be completely baseless, we will never know for sure, and the pardons carry an unavoidable implication of guilt. We'll be right back after this quick break.
- [17:55]
Isaac Saul
Hey prime members, Are you tired of ads interfering with your favorite podcasts? Good news. With Amazon Music you have access to the largest catalog of ad free top podcasts included with your prime membership. To start listening, download the Amazon Music app for free or go to Amazon.com ad freepodcasts that's Amazon.com ad free podcasts to catch up on the latest episodes.
- [18:21]
Jacob Sullum
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- [18:59]
Ryan Reynolds
Biden granted similarly sweeping pardons to former Joint Chiefs of Staff Chairman mark Milley former COVID 19 advisor Anthony Fauci and members of the House Select Committee that investigated the Capitol riot. Quote, I believe in the rule of law and I am optimistic that the strength of our legal institutions will ultimately prevail over politics, biden said. But these are exceptional circumstances and I cannot in good conscience do nothing. 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 in fact they have done the right thing and will ultimately be exonerated, the mere fact of being investigated or prosecuted can irreparably damage reputations and finances, end quote. Milley, a vocal Trump critic who has described his former boss as fascist to the core, seems to fall into the category of potential targets who, quote, have done nothing wrong or at least nothing criminal. Trump said that Milley deserved to be executed for calling his Chinese counterpart in 2020 and 2021 to assure him that rumors of an impending U.S. attack were baseless. Trump's threats against members of the January 6th Committee likewise seem legally groundless. Now Fauci's case is subject to more debate. Fauci, quote, flat out lied to Congress when he said that no, the federal government had not funded gain of function research at the Wuhan Institute for Virology, senator Ted Cruz, a Republican from Texas, said during a December 2022 interview on Fox News. Although the National Institutes of Health later, quote, made clear that was a lie, Cruz complained, Attorney General Merrick Garland won't prosecute him, end quote. In a July 2021 letter to Garland, Senator Rand Paul, a Republican from Kentucky, suggested that Fauci had violated a law which applies to someone who makes, quote, any materially false, fictitious or fraudulent statement or representation regarding any matter within the jurisdiction of the executive, legislative or judicial branch. Thanks to Biden's pardon, we will never know if prosecutors could have proven that case beyond a reasonable doubt. Likewise, for additional charges that Hunter Biden might have faced in connection with his income taxes or allegations of foreign lobbying. And while prosecuting legislators for doing their jobs would be plainly frivolous and probably unconstitutional, our political system would have been better served by making Trump put up or shut up, rather than issue pardons that could be interpreted as validation of his wild allegations. At least two members of the January 6 committee seem to recognize as much, quote, I am guilty of nothing besides bringing the truth to the American people and in the process embarrassing Donald Trump, former Rep. Adam Kinzinger, a Republican from Illinois, said on CNN a couple of weeks before Biden's pardons. But Kinzinger worried that, quote, as soon as you take a pardon, it looks like you're guilty of something, end quote. Representative Adam Schiff, a Democrat from California, meanwhile, noted the dangerous precedent that pardons like the one Biden ultimately granted would set. Quote, I don't want to see each president hereafter on their way out the door giving a broad category of pardons to members of the administration. Sarah Isker, an attorney who served as a Justice Department spokeswoman during Trump's first term, expressed the same concerns when she explained why she did not want a pardon, even though she had been affixed with the scarlet letter of a deep state conspirator against Trump. Isker wrote in the New York Times on December 12, 2024, if we broke the law, we should be charged and convicted. If we didn't break the law, we should be willing to show that we trust the fairness of the justice system that so many of us have defended. And we shouldn't give permission to future presidents to pardon political allies who may commit real crimes on their behalf, end quote. If presidents get in the habit of preemptively pardoning their underlings, impeachment will be the only real remedy for executive branch officials who commit crimes. And that option is only available when their abuses come to light soon enough to complete the process. Coupled with the Supreme Court's broad understanding of presidential immunity from criminal prosecution for, quote, official acts, this is a recipe for impunity that belies Biden's avowed commitment to the rule of law. Trump likewise abandoned his supposed principles when he indiscriminately pardoned defendants who had rioted in his name. Outraged by his stolen election fantasy, J.D. vance now the vice president, said on January 12, quote, if you committed violence on that day, obviously you shouldn't be pardoned. A week later, Trump drew no such distinction, pardoning Capitol rioters who had assaulted police officers, along with people who had merely entered the building without permission. That was too much even for Trump's reliable supporters at the Fraternal Order of Police, who said they were deeply discouraged by his pardons. Trump's pardons contradicted that commitment, but they were consistent with his interest in minimizing the crimes of his supporters. Although he once called the riot a heinous attack on the United States Capitol, he has more recently portrayed it as a, quote, day of Love, featuring heroes and patriots who were unjustly punished for expressing their views. The pardons, Trump claimed were necessary to correct a, quote, grave national injustice and begin a process of national reconciliation, end quote. But such reconciliation is impossible when the president is willing to excuse political violence as long as it is perpetrated by his supporters. Hamilton thought the benign prerogative of pardoning would allow mercy in appropriate cases. With the notable exceptions of Obama and Biden, we have not seen much of that in recent decades, although perhaps their examples will encourage future presidents to be less stingy. Hamilton also thought that entrusting a single person with the power of clemency would, quote, inspire scrupulousness and caution, and that the dread of being accused of weakness or connivance would foster circumspection. Biden and Trump managed to dash that already beleaguered hope in a single day. Foreign that is it for the contributed essay from Jacob Sullim, a senior editor at Reason magazine. We hope you enjoyed the piece, and if you have thoughts, feel free to write in to us. We're happy to pass on feedback to Jacob or answer any of your questions about the series or what we're trying to do with it more generally. For now, enjoy the rest of your day, wherever you may be, and we will be back with our normal newsletter tomorrow. Bye. Our podcast is written by me, Isaac Saul and edited and engineered by John Wall.
- [25:43]
Isaac Saul
The script is edited by our managing editor, Ari Weitzman, Will K. Back, Bailey.
- [25:48]
Ryan Reynolds
Saul and Sean Brady.
- [25:49]
Isaac Saul
The logo for our podcast was designed by Magdalena Bokova, who is also our social media manager.
- [25:55]
Ryan Reynolds
Music for the podcast was produced by Diet75. If you're looking for more from Tango, Please go to readtangle.com and check out our website.
- [26:18]
Isaac Saul
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Ryan Reynolds
It features all your Bourbon street favorites in one new menu plus a new.
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Isaac Saul
Bourbon street street chicken and chicken and andouille sausage pennies Starting at just $11.99 limited time, price participation and selection may vary.
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Jacob Sullum
What makes a great pair of glasses At Warby Parker? It's all the invisible extras without the extra cost. Their designer quality frames start at $95 including prescription lenses plus scratch resistant, smudge resistant and anti reflective coatings and UV protection and free adjustments for life. To find your next pair of glasses, sunglasses or contact lenses, or to find the Warby Parker store nearest you, head over to warbyparker.com that's warbyparker.com if you haven't noticed, it's winter and now more than ever, I'm in need of a little treat. That's why I joined First Leaf, a wine club that delivers my favorite types of wine right to my door. Because there's really no better treat than a glass of delicious red, white or so go ahead and treat yourself to world class wines from First Leaf. Go to trifirstleaf. Com Winter to get your first six bottles for just $44.95 with free shipping. That's T R Y F I R S T L E A F dot com.