From Ford to Trump Redux—The Vagaries of Presidential Mercy

On his first day in office President Jimmy Carter ordered a sweeping amnesty for Vietnam era draft resisters including those who had fled the country or gone underground.  It was no small irony the flags over the Capital where Trump was sworn-in were flown at full staff despite the official 30 day mourning period for the late President after Trump expressed his displeasure over the display of respect.

Forty-eight years ago another incoming President on his first full day in office, January 21, 1977, issued a blanket amnesty of most draft evaders, including those who went to Canada or assumed new identities and went underground in the states.

President Jimmy Carter’s controversial act, which brought harsh criticism from veterans’ organizations and near mutinous grumbling from some high level officers in the military, was not unexpected.  It fulfilled a campaign promise.  The idea was to put the bitter national divisions over the Vietnam War and the Nixon years behind us, or in Carter’s own words, “to bind up the nation’s wounds.”

The accidental President, Gerald Ford, had issued a conditional pardon for draft offenders, including those who were abroad, in September of 1974.  That was mainly to provide cover on the left for his pre-emptive pardon of his predecessor, Richard Nixon for any offenses that he “may have committed.”  The Ford conditional pardon is generally better remembered than Carter’s much more substantial action because of that linkage despite requiring those who accepted the pardon to work in alternative service occupations similar to those of conscientious objectors for six to 24 months.  Far fewer men than expected took Ford up on his offer.

Gerald Ford's limited conditional pardon for draft resistors and evaders was meant to placate the Left and distract from his pardon of Richard Nixon for "crimes he may have committed.

Carter’s action was much more sweeping, but a little noticed provision said that amnesty would be given to all offenders who requested one.  Some resistors refused to make a request because to do so was an admission that they had committed a crime in the first place.  Many, many more were unaware, because of hazy press coverage, that they had to make a request.  The Justice Department did not even make a cursory effort to inform the eligible by a letter to a “last known address.” 

The wording also was unclear on an important point for men like me—did the amnesty cover those who were already convicted and had served sentences for draft offenses?  I don’t think that last point has yet been fully answered.

None-the-less tens of thousands of draft refusers, evaders, and military deserters acted on the assumption that they were covered and the Justice Department de facto ceased actions against anyone who could have been covered by amnesty. 

More than half a million young men were either charged with draft evasion and resistance, avoided, or refused to serve in the Armed Forces and were never charged during the Vietnam War.

During the war and continuing after it ended until Draft call-ups stopped in 1973, 209,517 men were accused of violating draft laws, and another 360,000 were never formally charged.  Around 100,000 went abroad, 90% of them to Canada.  The exact number who went “underground” has never been established but is thought to be in the tens of thousands.

Upwards of 50,000 of those in Canada chose to stay there rather than return home.  Most were granted Landed Immigrant status and eventually Canadian citizenship.  A highly educated group with significant resources, these people had an impact on Canada.  Many became leading figures in academia, the arts, and in politics.  They are widely credited with/accused of moving Canadian politics generally to the left.

Likewise, a good, but unknown, number of those who went underground chose to continue to live their lives under the identities that they assumed.  In the 1960s and early ‘70s it was absurdly easy to establish a new identity.  It was thought that as this cohort became eligible for Social Security or died many of these assumed identities would unravel, but that seems to be exception rather than the rule.

As for an old Draft con like me, I never got any amnesty papers.  But I have lived my life quite openly and even drawn some modest attention to myself without further molestation.  So far so good.

 

Barack Obama was unusually active with clemency orders and pardons in his last days in office.

In 2017 Barack Obama spent the last days of his Presidential term churning out sentence commutations.  Hundreds were given to non-violent drug offenders facing draconian sentences under the exceptionally harsh Federal Sentence Standards, the most vindictive in the world.  But there were so many of those victims of the failed war on drugs that the commutations hardly made a dent in the American gulag.  Also given leniency were some white collar criminals, the kind of offenders that drew the stingier grace of Obama’s predecessor George W. Bush.  Even a beloved baseball icon, Willie McCovey of the San Francisco Giants who was convicted on Income Tax evasion was one of 64 that drew and outright pardon from the President.  

Most controversially Obama commuted the sentences of whistleblower Chelsea Manning, the former Army Private Bradley Manning, and Puerto Rican nationalist leader Oscar Lopez.  Inexplicably he did not commute the sentence of ailing American Indian Movement leader Leonard Peltier who was behind bars for more than 40 years.  

Neither did his successors until Joe Biden in one of his last acts buried among a flurry of preemptive pardons for prominent critics of Donald Trump and members of his own family.  Except for those on the Left who have been urging a pardon or clemency, no one noticed.

The headlines were all about using his executive prerogative as a shield against revenge by the return of the Orange Menace his while also guaranteeing his closest relatives aren’t subject to future prosecutions and clemency for Gen. Mark Milley, Dr. Anthony Fauci, and members of Congress who served on the committee investigating the January 6, 2021, attack on the Capitol.  It was announced early Monday morning minutes before Trump was to be inaugurated. Biden also issued pardons for members of his family: his brothers James and Frank, his sister Valerie, and their spouses.
The pardons were a stunning flex of Presidential power that is unprecedented in history. They protect several outspoken critics of the incoming President, including former Republican Rep. Liz Cheney, whom Trump has vowed retribution against.

After Obama no one, except possibly sex offenders, gun nuts, and White nationalist terrorists could expect any such displays of mercy from Trump’s first term in  the Oval Office.  On the contrary.  The former Pumpkin-in-Chief and his administration sought to swell the prison population with those who resisted his autocratic rule, immigrants, and minorities of every sort.  And the recipients of his tender mercy were of a very different sort including pardons for the ilk of Arizona racist sheriff Joe Aripio, Watergate figure Scooter Libby, right-wing commentator Dinesh D’Souza, Army Lt. Michael Behenna who was convicted of murdering an Iraqi man, right wing Canadian media mogul Conrad Black, Chalmer Lee Williams convicted of illegal firearms sales, Army Major Mathew Golsteyn who was awaiting trial on a charge of murdering a suspected Afghan bomb maker, Lt. Clint Lorance convicted of murdering two Afghan civilians, and a slew of former officials, aides, and associates who might testify against him.   

Trump's first end-of-term batch of sentence commutations included well connected bank fraudster Sholom Rubashkin, arsonists Dwight and Steven Hammond who inspired Nevada anti-government extremists Ammon and Ryan Bundy in their armed seizure of the Malheur National Wildlife Refuge, and Medicare scammer Ted Shul who ran faith-based behavioral healthcare treatment centers for juveniles.

 Do you detect a pattern here?  Because it repeats its self. 

 

Joe Biden and Donald Trump swapped Inauguration Day pardons and commutations.

Trump was undoubtedly outraged by Biden’s last minute move that put many of the targets he boasted about prosecuting/persecuting out of revenge but there was nothing he could do about it.  Even boldly trying to overturn them in defiance of the law like his attempt to end birthright citizenship for a blustery show for his most rabid supporters was not an option  because arguing that Biden exceeded his authority would undercut the legitimacy of his own sweeping actions.  He had long signaled plans for pardons for Capitol Siege insurrectionists but had hinted that might not include those convicted of actual physical assault on police, but he pardoned them all.  “These are the hostages, approximately 1,500 for a pardon, full pardon," Trump said during remarks from the Oval Office. “This is a big one.”

Clearly those pardons are a signal to his most extreme and dangerous supporters including armed Militias, Proud Boys, Oath Keepers, and Klansmen that they will face no consequences for using violence and intimidation on his behalf.

You ain’t seen nothin’ yet.