It is tiresome, but not surprising, that the polarized commentary in the days since the blizzard of pardons and clemencies issued back-to-back by Presidents Biden and Trump has focused on which one’s pardons were a worse affront to the rule of law.
It is fair to say that each president’s exercise of the pardon power pushed the outer limits of legitimacy. In fact, the types of pardons they issued — Joe Biden’s preemptive pardons and Trump’s pardon of the January 6 rioters — were raised at the constitutional convention of 1787 as reasons not to allow the president that power.
George Mason argued presciently that the president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. … If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?” James Madison’s answer, which carried the day, was that any such abuses of the pardon power could be cured by impeachment.
Putting aside the academic question of whether Biden and Trump have committed impeachable offenses by virtue of their abuse of the pardon power, it is clear that the power was vested in the president not to fulfill such narrowly self-interested objectives but for cases in which the harsh administration of justice requires a safety-valve of mercy.
It is fair to ask what happened to such cases in the avalanche of inappropriate pardons. Was anyone left behind? Was anyone actually denied a pardon? If so, why?
After all, the pardons covered everyone from violent seditionists who assaulted police officers to purveyors of the “dark web,” from nonviolent drug dealers and Biden family members to death row inmates whose sentences for murder were commuted, from deceased civil rights pioneers to people who haven’t even been investigated yet. Surely anyone left off the list must be a monstrous criminal, unworthy of mercy in any form.
Not so.
Former Alabama Attorney General and Gov. Don Siegelman’s (D) request for a pardon from Joe Biden was answered with a one-line note: “…favorable action is not warranted … application was denied by President Joseph R. Biden, Jr., on January 20, 2025.”
What depraved criminal act justified the conclusion that a pardon was “not warranted” for Siegelman? He didn’t assault police officers on his way to vandalizing our nation’s Capitol. He didn’t operate a dark website that facilitated everything from money laundering to gun-running. He didn’t lie in order to purchase a firearm. He didn’t engage in a seditious conspiracy.
No. Siegelman reappointed a business executive to an unpaid state health board.
And unfortunately for him, he wasn’t a Biden relative.
According to the prosecution, Siegelman did this to reward the executive for his financial support. Unlike in the vast majority of corruption cases, however, that financial support did not go directly to the governor’s campaign; in fact, the executive had supported Siegelman’s opponent. Nor did the financial support benefit Siegelman personally, or any of his family members. Instead, the contribution was made to a political action committee formed to promote the use of state lottery proceeds to finance public education.
Nor was the appointment to the unpaid health board a new appointment. Prior governors, whose candidacies — unlike Siegelman’s — had been supported by the executive, had appointed him to the board without question, let alone indictment. For this offense, Siegelman was sentenced to and served seven years in federal prison.
I became aware of his plight when, as a former state attorney general, I was asked to support his legal appeals. Along with more than 100 other former attorneys general of both parties (I am an independent), I joined those efforts.
Siegelman’s case also garnered widespread media attention and bipartisan support for his cause.
As dean of the Rutgers School of Law—Newark at the time, I asked our Constitutional Litigation Clinic to study how Siegelman’s sentence compared with the sentences imposed in other corruption cases. The clinic’s conclusion was unequivocal: the Siegelman conviction and sentence were readily distinguishable from virtually every other contemporaneous corruption prosecution in their overreach and harshness.
In a December letter to Biden, in support of a pardon for Siegelman, I concluded: “It is too late now to address the flawed legal basis for the Siegelman prosecution, but not too late to address its ultimate impact, which was personal. It ruined a man’s career and, for many years, his life.”
Normally, when a requested pardon is summarily denied, as Siegelman’s was by President Biden on Jan. 20, there is no context in which to evaluate the fairness of the decision that mercy was “unwarranted.”
Not so this year. Biden’s denial should be evaluated in light of the pardons he considered “warranted.” Biden’s denial of mercy to Siegelman, considered in light of the pardons he did grant from sheer nepotism and perhaps fear of legal harm to himself, lays bare his affront to the rule of law and the lasting stain on his presidency.
Trump’s blanket clemency for violent rioters who tried to disrupt the orderly transition of power — a literal assault on our democracy — broadens the context still further. To allow Siegelman’s conviction to remain unaddressed in light of those pardons would be to mock any notion of equal justice under law.
Cases like Siegelman’s expose just how lawless and abusive both presidents’ exercise of raw power has been, and how sagacious the founders’ concerns were over the pardon power’s potential abuse. We have seen how ineffectual impeachment is as a remedy; perhaps these abuses will inspire a constitutional amendment addressing the preemptive pardons and pardons of criminal cronies that George Mason raised in 1788 — exercises of raw power that he feared would enable an ill-motivated president, “at some future day … [to] establish a monarchy, and destroy the republic.”
For Siegelman, the disappointment is great, but hope springs eternal. Trump hasn’t yet considered the merits of his case. If he does, perhaps he will look at the Siegelman prosecution and his seven years in prison, look in the mirror, and say to himself, “There, but for the grace of November 6, 2024, go I. And I would pardon me.”
For Siegelman, it is far too late for justice, but it is never too late for a proper dose of mercy.
John J. Farmer Jr. served as an assistant U.S. Attorney, attorney general of New Jersey, senior counsel to the 9/11 Commission, and director of the Eagleton Institute of Politics, among other roles.