Police clash with supporters of President Donald Trump during the Jan. 6 riot at the U.S. Capitol. (Photo by Alex Kent/Tennessee Lookout)
When Peter Ninemire was freed by presidential clemency from a federal prison where he was serving a 27-year sentence on drug charges, it was widely hailed as just the way such executive actions should work.
If anybody deserved the presidential “prerogative of mercy,” as defined by the Supreme Court, it was Ninemire.
A nonviolent offender who was described as having the most positive attitude of all the inmates at the minimum-security prison at Englewood, Colorado, Ninemire had resolved to use his time in prison to improve himself and others. He began a program to show at-risk youths what life in prison was really like, reported the Salina Journal. Even the judge who sentenced him, Richard Rogers, wrote a letter in support of Ninemire’s presidential clemency.
Ninemire had served 10 years of his time for growing marijuana and other charges when Bill Clinton granted clemency in January 2001. Technically, it wasn’t a pardon, but a commutation.
Granting pardons and commutations is the most king-like of all presidential actions, enshrined in Article II of the Constitution and based on a “benign quality of mercy” reserved for the president alone. The Supreme Court defined that benign quality in 1866 and set only a few limits on its use. It cannot, for example, be used to escape impeachment.
When Donald Trump is sworn in for his second term just over two weeks from now, one of the things to watch for is whether he will make good on his promise to pardon most of those charged with the Jan. 6, 2021, attack on the U.S. Capitol. The mob’s goal was to disrupt a joint session of congress to count Electoral College votes and affirm the presidential election results. About 1,572 individuals were charged in the siege, according to the Department of Justice, and about 80% have since pleaded guilty or were convicted at trial.
During the campaign, Trump cast the Jan. 6 insurrectionists as political prisoners and patriots who were pressured by prosecutors into accepting plea deals. “Justice for All,” a version of the national anthem sung by incarcerated Jan. 6 defendants over prison phone lines, became a staple at rallies. Never mind that 140 police officers were assaulted, the damage to the Capitol exceeded $2.8 million, and that at least seven people died as a result of the attack.
For the most complete and authoritative account of the Jan. 6 insurrection, go to the House Select January 6 Committee Final Report.
The expectation that Trump will pardon the insurrections casts a long shadow over American justice. Even his stated inclination to do so has a chilling political effect, because it lays bare his belief that his pardon power should be used not to show mercy or correct wrongs but to reward the faithful and justify their elevation to heroic status.
Four years ago, we watched on television as the attack on the Capitol unfolded. It was brutal. Remember the police officers being crushed in doorways by the press of the crowd, rioters smashing windows to gain access, the flight of lawmakers to safety, the ropes to hang Mike Pence in effigy — or for real? How about the shock of seeing a Confederate battle flag being paraded about the halls? Or when we learned Air Force veteran Ashli Babbitt, a Trump flag draped over her shoulders, was shot dead by a police officer when she attempted to break into a House area where lawmakers feared for their lives?
Surely, I recall thinking as I watched, this repulsive violence will end the Trump madness. But I underestimated madness. Instead, in the months and years that followed, the Trump movement became energized by the violence, recast in a false narrative that the rioters were the victims. With the tragic but legally defensible shooting of Babbitt, Trump had his first blood martyr.
Reasonable people, however, were sickened by the violence and chaos.
“The violence and destruction of property at the U.S. Capitol building on Jan. 6 showed a blatant and appalling disregard for our institutions of government and the orderly administration of the democratic process,” FBI Director Christopher Wray told Congress in June 2021. “The FBI does not tolerate violent extremists who use the guise of First Amendment protected activity to engage in violent criminal activity. The destruction of property, violent assaults on law enforcement officers, and imminent physical threats to elected officials betray the values of our democracy.”
Now, those “violent extremists” may be rewarded by presidential pardon for their loyalty. While pardons have never been entirely free of politics, the scale of Trump’s contemplated clemency is worthy of a banana republic dictator. That term, “banana republic,” was coined by short story writer O. Henry to describe his fictional and thoroughly corrupt state of Anchuria.
The most notorious pardon in American political history is when Gerald Ford pardoned Richard Nixon in 1974 for “all offenses against the United States that he … committed or may have committed.” Ford had assumed the presidency after Nixon had yielded to public pressure to resign following the Watergate scandal, in which Nixon and his aides had engaged in illegal campaign activity in 1972 and then attempted to cover it up. By accepting the pardon, Nixon publicly acknowledged his guilt. But in 1977 he told interviewer David Frost, speaking generally, that “when the president does it, that means it is not illegal.”
This bit of Nixonian hubris is something the Supreme Court has recently made into law in Trump v. United States, which holds that presidents cannot be held legally accountable for official acts they commit as president. This gives presidents such broad power that Trump could hand out pardons for just about any reason — as political favors, for his amusement, or even in exchange for a bribe — and face no legal consequences.
While we have yet to see how far Trump will take these new powers, the thought of such monarch-like authority is anathema to the ideal of American democracy.
The presidents who made the widest use of the power to pardon were Andrew Johnson, who granted it to thousands of ex-Confederates after the Civil War, and Jimmy Carter, who pardoned by executive order more than 200,000 in his first day of office in 1977 for evading the draft during Vietnam. Both were attempts to heal the nation after a great division, with only marginal success.
But Trump’s Jan. 6 pardons would bring no healing.
The wound was made all the deeper last month by President Joe Biden’s pardon of his son Hunter, which after Ford’s pardon of Nixon may be the second-most notorious act of executive clemency on record (so far). While it is easy to understand a father’s love for his son, it is difficult to understand a president who betrays his principles to shield a family member. Even if you believe Hunter Biden was singled out for unfair prosecution because of his father — which the White House claimed on official stationary — there’s the matter that Joe Biden went back on his word not to give Hunter Biden a pardon.
In a spectacular bit of hypocrisy, Joe Biden lowered himself to the level of his opponent in claiming a weaponized prosecution. He also did serious damage to his legacy.
All of the above brings me back to Ninemire, whose sentence on drug charges was commuted by Clinton.
The then-45-year-old Kansan, who grew up at Coffin Rock Ranch in Norton County up near the Nebraska line, had caught the mandatory minimum sentence for growing several hundred marijuana plants in northeast Kansas. He already had two prior marijuana convictions.
He had been arrested in 1989, pleaded guilty in federal district court at Wichita, but skipped out on bail before sentencing. He faced a minimum of five years in prison, according to reporting by the Wichita Eagle.
Ninemire was, for a time, was Kansas’ third-most wanted fugitive.
The manhunt ended when federal agents staked out a home near Miami where they knew Richard Lacey, a Wichita drug trafficker who had also jumped bail. They also found Ninemire. Both were brought back from Florida without incident.
Ninemire was sentenced to 322 months in prison for manufacturing marijuana and failing to appear, according to a Justice Department webpage. In that prison in Colorado, Ninemire began to turn his life around. After his release, he earned a master’s degree in social work from Wichita State University, according to his website, and became a licensed specialist social worker helping others overcome their addictions to drugs and alcohol.
“Here I am today living the dream of helping others that I was so afraid to dream in prison,” Ninemire posted on his site. “I’m here only because I gained recovery from drugs that allowed everything that is wonderful to happen in my life.”
Will anything wonderful happen if Trump pardons the Jan. 6 insurrectionists?
It depends on how you define “wonderful.”
While there would be few checks on Trump’s power to grant pardons, the rules of clemency might present some challenges.
While both pardons and commutations are forms of clemency, according to the U.S. Office of the Pardon Attorney, a commutation reduces a punishment but does not imply forgiveness or restore the civil rights lost on conviction, such as the right to vote or run for public office. There’s also the understanding, from a Supreme Court decision, that accepting a pardon is an admission of guilt — a bitter pill that Nixon had to swallow back in 1974.
This will likely be of little consequence for Trump supporters. Trump himself was convicted of 34 felony counts in a hush money trial, making him the first U.S. president with a rap sheet, but that did not seem to tarnish his appeal among supporters. When guilt is just another word for an allegedly weaponized justice system, where is the shame?
We are poised to enter a period in American politics in which those with the least respect for the law have the most power over the institutions entrusted with preserving it. The prospective pardoning of the Jan. 6 insurrectionists is the passport to a land where justice is replaced by dull political brutishness.
Welcome to Anchuria. May our stay be brief.
A version of this commentary was first published by Kansas Reflector. Like Maine Morning Star, Kansas Reflector is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com.
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