The BDN Opinion section operates independently and does not set news policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com
Michael Cianchette is a Navy reservist who served in Afghanistan. He is in-house counsel to a number of businesses in southern Maine and was a chief counsel to former Gov. Paul LePage.
Joe Biden is right. So is Donald Trump.
The public debate was abuzz once news broke about President Biden’s pardon of his son Hunter. One of the major outcries concerned Biden’s unabashed hypocrisy, unequivocally saying for months that he would not pardon his second born son.
Then he did.
Biden’s claimed rationale for his “change of heart” was that, essentially, Hunter got railroaded. The punishments he faced for the gun law violations did not fit the crime, but were based on who Hunter was.
Biden’s right.
Last year, the younger Biden had negotiated a plea deal with prosecutors. However, as it was presented to the court, Congressional Republicans raised hackles. It had unusual aspects both trying to prevent courts from reviewing it and requiring a judge to serve as a pseudo-prosecutor. There was a dispute about the breadth of the deal and whether it incorporated other conduct.
In short, it fell apart. But I’m willing to wager that, if the defendant’s name wasn’t “Hunter Biden” but rather something like “Adam Johnson,” Congress would not have been involved. And there probably would have been some type of agreement put back together.
Instead, Attorney General Merrick Garland appointed a special counsel, Hunter Biden went to trial, and was found guilty.
Meanwhile, Donald Trump continues to shout about politically motivated lawsuits against him. In some cases, he’s probably right, too.
As I’ve written before, the New York felony prosecution was described by left-leaning commentators as “eyebrow raising” and “dubious.” Hillary Clinton’s campaign admitted to “falsifying records” — recording opposition research as legal fees — but was never charged with felonies.
I’d be willing to wager that, if the defendant’s name wasn’t “Donald Trump” but rather something like “Joseph Stein,” Manhattan Democratic District Attorney Alvin Bragg would have never filed charges. Rather, the hypothetical Stein would have paid a fine like Hillary Clinton’s campaign and that would have been the end of it.
Yet these two cases highlight something else. Americans are buried under a morass of criminal laws; whether or not you get charged is based on some mixture of notoriety and luck.
Do you sell onion rings made from diced onions, but just call them onion rings? Straight to jail, potentially.
Want to travel to Canada with 600 nickels in your car? Up to five years in prison.
Write a check for 49 cents? Off to the hoosegow.
And that doesn’t even touch more substantive laws, like marijuana criminalization.
Now, in reality, you might not normally go to jail for these infractions. But President Biden was right when he noted Hunter’s firearm felony convictions were incredibly unusual, too. If a law is on the books, an enterprising prosecutor can use it.
For whatever reason, Biden chose not to find others like Hunter who might have also faced overly draconian penalties for similar crimes. Granting those people clemency as well would have at least added a degree of consistency to his flip-flop in favor of his son.
Despite some of Trump’s calls for retribution, political prosecution tit-for-tat isn’t the way forward. The incoming president should take a cue from his first administration and work on real reform. One of the most broadly bipartisan pieces of legislation Trump signed back then was the “First Step Act,” a criminal justice reform bill.
Reforming other criminal laws should be something that all sides can agree on. There is a lot less potential for political misuse of prosecutions if there are a lot fewer laws to charge people under. “Don’t make a federal case out of it” should be more than a quip; it should be a rallying cry in favor of criminal justice reform.
Instead of picking winners through pardons and clemency, or choosing losers through politically motivated prosecutions, let’s find a way towards a better criminal justice system. Trump took the first step in his first administration; it’s time for a second.
