Biden Granting Clemency To Lots Of People Is A Good Thing — It Should Be Just The Start 

Hello, it’s the weekend. This is The Weekender ☕️

President Joe Biden granted clemency to around 1,500 people this week, and pardoned 39 more. 

Overall, this is a good thing (setting aside that some of those granted mercy don’t particularly seem to deserve it). Presidents have broad powers in this area, and most are too scared to use them for the obvious political risk.

Biden, obviously, has nothing to fear there. His political career is done and he should be bolder, expanding his lens beyond people who were overwhelmingly already home. Rep. Ayanna Pressley (D-MA), with other lawmakers, has called on the President “to help broad classes of people and cases, including the elderly and chronically ill, those on death row, people with unjustified sentencing disparities, and women who were punished for defending themselves against their abusers.” A large group of Democrats has called on Biden to pardon Leonard Peltier, a Native American activist whose murder conviction even the U.S. attorney who prosecuted the case later questioned.  

The White House is indicating that this might just be the opening salvo: “In the coming weeks, the President will take additional steps to provide meaningful second chances and continue to review additional pardons and commutations.”

But beyond the argument that he should exercise mercy because he can, he should use his pardon/clemency powers to help Democrats find their footing and start building a narrative against Trump. I’m of the belief that the Hunter Biden pardon would have gone down better if he bundled it with other “political” pardons, if he’d been more explicit about the fact that Hunter, and others who’ve attracted MAGA world’s particular ire, are simply not safe under the Trump administration. That Trump is vindictive and cruel, obsessed with grudges, and more intent on getting revenge against his critics than helping improve the economic fortunes of the American people (Trump’s admission that he probably won’t be able to lower grocery prices can help here too).

Some worry that preemptive pardons of Adam Schiff and Liz Cheney types might attach to them the stink of wrongdoing. Most disapprove of the Hunter pardon too, likely a combination of Biden’s broken promise that he wouldn’t pardon him and its appearance of familial self-dealing. That’s mostly a product of bad messaging: If Biden was a more able communicator, rather than lying about his intentions, he, (an alternate universe) Merrick Garland and The Democrats™ could have spent years pumping out the message that the prosecution was partisan, the brutal and inevitable conclusion of a right-wing offensive to get at the President through the family member they saw as the weakest link. It could have been a way to frame the whole Trump movement, one that is both bullying on an interpersonal level and alarmingly comfortable flexing the levers of legal power to punish those on the other side. 

The information environment is, obviously, incredibly lopsided in Republicans’ favor. As many, including we at TPM, have argued, leveling that plane will require creativity, investment, a willingness to fund and support these media even if they occasionally break step with Democratic politicians. I’m not laboring under the delusion that it would have been easy for Biden to make the case about Hunter when the right-wing machine spent so much time and money demonizing him (same goes for the Schiffs and Cheneys). 

But they have to start somewhere. A bold and audacious firehose of pardons, a move both merciful and in service of the greater political project of negatively defining the Trump term (rather than the distasteful kowtowing elected Democrats are prone to at the moment) would be a start. It would be even better if bundled with Senate Democrats motivated to use their committee chairmanships while they still have them to pump out information about Trump and his cronies and to hold hearings on the least popular parts of his agenda (this seems like a total pipe dream) and a slate of executive branch moves to try to shore up whatever can be shored up before Trump’s wrecking ball starts swinging. At the very least, it would be a refreshing change from the anxious defensive crouch Democrats so reflexively adopt.  

— Kate Riga

Here’s what else TPM has on tap this weekend:

• Josh Kovensky expands on his reporting on Trump allies’ fight to end birthright citizenship in the U.S. and the resurrection of the broader, years old effort that involves a familiar cast of characters.
• Hunter Walker checks in on Trump’s inauguration prep grift game, which, of course, involves campaign donation-based promises to wear two different types of MAGA hats on the big day.
• Emine Yücel has some thoughts on the House Republican who is uncomfortably trying to resuscitate the War on Christmas, a right-wing favorite.

An Insular Perspective

One surprising thing I learned in reporting my story this week on the right-wingers fighting to end birthright citizenship is that the 14th Amendment already has a big exception. Residents of American Samoa do not receive citizenship at birth; it’s the only U.S. territory with that exception in place, and it’s been that way since a series of notoriously racist 1901 Supreme Court decisions known as the insular cases classified them as non-citizen nationals.

Various Samoans have fought this over the years, which is how I found that Ken Chesebro, the fake electors scheme architect, and John Eastman had collaborated on efforts to end birthright citizenship long before their more well-known 2020 collaboration. The two worked on an amicus brief together in the case of Tuaua vs. United States, in which an American Samoan man was suing to have birthright citizenship apply to the island after he was barred from becoming a police officer in California for lacking U.S. citizenship.

The D.C. Circuit ruled in favor of the status quo. During a failed attempt to get the Supreme Court to hear the case, Chesebro and Eastman filed an amicus brief urging the high court not to hear the matter, calling birthright citizenship a “vestige of feudalism” and saying that citizenship should not be “automatically imposed on every child born” in American Samoa.

I spoke with Neil Weare, an attorney for the plaintiff in the case. Weare grew up on Guam, and has focused on territorial issues in his career as a lawyer. It’s rare, he said, for these cases to get much attention, though he thinks that a 14th Amendment executive order may change that. From one perspective, the questions in the Trump proposal and the Samoan case are different. For Samoa, the issue is what does the “United States” mean for the purposes of the citizenship clause. For the attempt to undo birthright citizenship for the children of undocumented immigrants, right-wingers are arguing that “subject to the jurisdiction thereof” narrows the idea’s application.

Weare was far less certain than others I spoke with that the courts would dismiss Trump’s proposal out of hand.

“The bottom line is the constitutional meaning is clear and that the United States has sovereignty over a place, whether that’s a state, a territory, or D.C., there’s a constitutional right to be a citizen,” he told me. The history of the Samoan case demonstrates that there’s already an exception in place, he argued: “it suggests that when there is enough political pressure to change the meaning of the Constitution, that political and constitutional actors that have sworn an oath to uphold the Constitution and defend the Constitution will not do so.”

— Josh Kovensky

Trump’s Contradictory MAGA Hat Money Move

Donald Trump is a man of many (MAGA) hats.

The former (and future) president has made some potentially contradictory promises to his fans related to his famous campaign headgear. On Dec. 8, Trump’s campaign sent an email to supporters that showed off a white version of his signature hat with red lettering bearing the phrase “VICTORY” and “Make America Great Again.” The campaign’s message dubbed the item, which was available for a donation of at least $47, “President Trump’s personal favorite MAGA Hat” and boasted it was “even bigger than the Elon Dark MAGA Hat!.” To underscore the sheer power of this piece of pricey campaign merch, the campaign pronounced it as “THE HAT PRESIDENT TRUMP PLANS TO WEAR ON INAUGURATION DAY!”

However, just over seven hours later, the campaign blasted out another email to supporters. This one was signed by Trump himself.

“I MIGHT WEAR MY GOLD MAGA HAT ON INAUGURATION DAY,” Trump wrote.

Sadly, for any MAGA fan who was trying to keep up and match the potential inaugural outfit, this second gold hat was on offer for $50, a few bucks more than the hat the campaign previously advertised as the one Trump will sport on Jan. 20.

While many of us have been transfixed by Trump’s parade of disturbing Cabinet picks and policy promises, perhaps we can enjoy this extremely low stakes bit of drama and shady marketing as a sideshow. It’s yet another example of how Trump’s campaign and merch operation, which he launched in 2015, relaunched the day he won his first election, and has essentially never ended since then, has been willing to bilk his most loyal fans. Indeed, in his second email filled with seemingly contradictory MAGA hat related promises, Trump was rather transparent about the motivation for the stunt.

“Once folks know that this could be the hat I wear when I become the 47th President, these hats will fly off the shelves,” Trump wrote.

In other words, Trump’s second term is about to begin, but the cash grab is already in full swing. 

— Hunter Walker

Words Of Wisdom

“I hope you have a very politically incorrect Merry Christmas!”

That’s Rep. Tim Burchett (R-TN) signing off from a Newsmax interview this week. It seems the congressman might be trying to singlehandedly resurrect the infamous, right-wing “War on Christmas.” 

The Newsmax anchor interviewing Burchett makes the moment ten times better with her response.

“You can count on it. Merry Christmas,” the anchor responds back with a chuckle.

Now to be fair, I don’t think I’d have a better response to such a bizarre sign off (especially if a congressman said that to me on live TV), but the “you can count on it” is equally, rhetorically deranged.

But alas, the clip itself is hilarious and worth a watch if you have 15 seconds of cringe to spare.

— Emine Yücel